Aslan Pirouz Medical Corp, DAB CR6748 (2025)

DECISION

Aslan Pirouz Medical Corp (Petitioner) challenges the Centers for Medicare & Medicaid Services’ (CMS’s) determination of its effective date of reactivation as a biller to the Medicare program following a period of deactivation due to its failure to revalidate.  As explained below, I find CMS properly determined December 23, 2024 as the reactivation effective date of Petitioner’s Medicare enrollment, as that is the date the Medicare administrative contractor received Petitioner’s revalidation application that was processed to approval.

I. Background

On July 24, 2024, CMS contractor Noridian Healthcare Solutions (Noridian) advised Petitioner that it was obligated to revalidate its Medicare enrollment by October 31, 2024.  CMS Ex. 2.  The letter informed Petitioner that it could submit its revalidation application either online through the Medicare Provider Enrollment, Chain, and Ownership System (PECOS) or by mail.  Id.  The letter, which was mailed to Petitioner, warned that “[i]f we don’t receive your response by then, we may stop your Medicare billing privileges.”  Id.

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On November 5, 2024, Noridian sent another notice to Petitioner advising that it was “placing a stay on your Medicare enrollment record effective November 5, 2024 because you have not responded to our revalidation request of July 25, 2024.”  CMS Ex. 3.  The letter further stated that “[f]ailure to submit a revalidation application within 30 days of this notice may result in a deactivation of your Medicare enrollment.”  Id.

On December 4, 2024, Noridian deactivated Petitioner’s Medicare billing privileges effective November 1, 2024.  CMS Ex. 4.  As the basis for the deactivation, Noridian stated that Petitioner failed to submit a timely revalidation application.  Id.  (citing 42 C.F.R. § 424.540(a)(3)).  Noridian advised Petitioner of its right to file a rebuttal if Petitioner believed the deactivation was incorrect.  Id.

On December 23, 2024, Noridian received a revalidation application from Petitioner.  CMS Exs. 1, 5.  Noridian subsequently approved Petitioner’s application with an effective date of December 23, 2024.  Id.  Noridian also advised Petitioner that there would be a gap in billing privileges from November 1, 2024 to December 22, 2024.  CMS Ex. 5.

Petitioner thereafter filed a request for reconsideration of the deactivation and the gap in billing privileges.  CMS Ex. 6.  On March 20, 2025, Noridian issued a reconsidered determination and found no error in reactivating Petitioner’s Medicare billing privileges as of December 23, 2024, with a billing gap from November 1, 2024 to December 22, 2024.  DAB E-File Doc. No. 1_a.

On April 7, 2025, Petitioner timely requested a hearing to dispute the reconsidered determination.  DAB E-File Doc. Nos. 1-1b.  On April 9, 2025, the undersigned Administrative Law Judge (ALJ) was designated to hear and decide this case and the Civil Remedies Division (CRD) acknowledged the hearing request and issued my Standing Pre-hearing Order (Standing Order).  Id. at Doc. Nos. 2-2c.  Among other things, the Standing Order instructed the parties to file pre-hearing exchanges by specified dates.  Id. at 2_a.

On May 12, 2025, CMS timely filed a motion for summary judgment and pre-hearing brief (CMS Br.) and six proposed exhibits (CMS Exs. 1-6).  Id. at Doc. Nos. 6-6g.  On May 30, 2025, Petitioner timely filed a letter, which I construe as its pre-hearing brief and response to CMS’s motion for summary judgement (P. Br.) along with a sworn letter from one proposed witness.  Id. at Doc. Nos. 9-10.

II. Admission of Exhibits and Decision on the Record

Petitioner did not object to CMS Exs. 1 through 6.  In the absence of objections, I admit CMS Exs. 1 through 6 into the record.

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In its brief, Petitioner requested a “personal meeting” to discuss the hardship the billing gap would cause his practice.  P. Br. at 1.  I construe this as a request for an in-person hearing.  However, the Standing Order advised the parties that an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness, and the opposing party requested an opportunity to cross-examine the witness.  Standing Order ¶¶ 11-13; see Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross-examine those witnesses).  CMS has not submitted any proposed witnesses.  Petitioner has submitted a sworn letter from one witness, Blanca Guia.  See P. Ex. 2.  I admit the affidavit into evidence as the individual’s written direct testimony.  Arkady B. Stern, M.D., DAB No. 2329 at 4 n.4 (2010) (“Testimonial evidence that is submitted in written form in lieu of live in-person testimony is not ‘documentary evidence’ within the meaning of 42 C.F.R. § 498.56(e), which requires good cause for submitting new documentary evidence to the ALJ.”).  However, CMS has not requested to cross-examine the witness.  As such, a hearing in this case is unnecessary and I decide this case based on the written record.  Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b), (d).  The motion for summary judgment is therefore moot.

III. Issue

Whether CMS had a legitimate basis to establish December 23, 2024, as the effective date of Petitioner’s reactivated Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

V. Findings of Fact, Conclusions of Law, and Analysis1

A. Applicable Law

1. Enrollment

Petitioner participates in the Medicare program as a “supplier” of services.  Social Security Act (Act) § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services it furnishes to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors:  (1) identify the prospective supplier; (2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; (3) identify and confirm a supplier’s

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owners and practice location; and (4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.

To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS‑approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.  When CMS determines a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  42 C.F.R. § 424.505.

The effective date for its billing privileges “is the later of the date of filing” a subsequently approved enrollment application or “[t]he date that the . . . supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d)(1) (Emphasis added).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).  If a supplier satisfies certain requirements, CMS may allow a supplier to bill retrospectively for up to 30 days prior to the effective date.  42 C.F.R. § 424.521(a)(1).

2. Revalidation

To maintain billing privileges, a supplier must resubmit and recertify the accuracy of its enrollment information at least every five years, a process referred to as “revalidation.”  42 C.F.R. § 424.515.  Beyond these periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of its enrollment information.  42 C.F.R. § 424.515(d).  Within 60 days of receiving CMS’s notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

3. Deactivation

The regulation authorizing deactivation explains that “deactivation [of Medicare billing privileges] is intended to protect the provider or supplier from the misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments.”  86 Fed. Reg. 62,240, 62,359 (Nov. 9, 2021).  CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not “furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment information.”  42 C.F.R. § 424.540(a)(3).  If CMS deactivates a supplier’s Medicare billing privileges,

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“[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary.”  42 C.F.R. § 424.555(b); see also 42 C.F.R. § 424.540(e).

4. Reactivation

The reactivation of an enrolled supplier’s billing privileges is governed by 42 C.F.R. § 424.540(b).  The process for reactivation is contingent on the reason for deactivation.  If CMS deactivates a supplier’s billing privileges due to a reason other than nonsubmission of a claim, the supplier must apply for CMS to reactivate its Medicare billing privileges by completing and submitting the appropriate enrollment application(s) or recertifying its enrollment information, if deemed appropriate.  42 C.F.R. § 424.540(a)(3), (b)(1); 71 Fed. Reg. 20,754, 20,762 (Apr. 21, 2006).  The effective date of a reactivation of billing privileges, following a period of deactivation, is the date on which the Medicare contractor received the supplier’s submission that was processed to approval.  42 C.F.R. § 424.540(d)(2).

B. Analysis

1. Noridian received Petitioner’s revalidation enrollment application on December 23, 2024 that was processed to approval, which is the effective date of its Medicare reactivated enrollment.

As discussed above, the effective date of a reactivation of Medicare billing privileges is the date on which the Medicare contractor received the supplier’s submission that was subsequently processed to approval.  Id.

In this case, Noridian received a revalidation enrollment application from Petitioner on December 23, 2024, and this application was processed to approval.  CMS Exs. 1, 5.  Noridian thus appropriately found the effective date of Medicare billing privileges for Petitioner to be December 23, 2024, the date of receipt of the Medicare application that was subsequently approved by the contractor with a gap in billing privileges from November 1, 2024 to December 22, 2024.  Id.  Moreover, Petitioner does not claim that it submitted an earlier application than the one submitted on December 23, 2024, that Noridian received and subsequently approved.

Therefore, pursuant to 42 C.F.R. § 424.540(d)(2), the date Noridian received Petitioner’s subsequently-approved enrollment application – December 23, 2024 – is the correct reactivation effective date of enrollment.  Michael B. Zafrani, M.D., DAB No. 3075 at 2 n.1 (2022).

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2. I have no authority to review the deactivation of Petitioner’s billing privileges and cannot afford it equitable relief.

In its brief and request for hearing, Petitioner generally contends that Noridian erred in deactivating its Medicare billing privileges, which resulted in a gap of billing privileges from November 1, 2024 to December 22, 2024.  DAB E-File Doc. No. 1; P. Br. at 1.  Petitioner specifically states that it did not receive the Medicare revalidation notices and further asserts a financial hardship argument.  Id.

While I acknowledge Petitioner’s argument, I have no authority to review Noridian’s deactivation of its Medicare billing privileges.  CMS Ex. 3; Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6 (2019); Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); Ark. Health Grp. d/b/a Baptist Health Family Clinic Lakewood, DAB No. 2929 at 7-9 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).  That is because the lack of notice is only relevant, if at all, to whether Noridian acted properly in deactivating Petitioner’s billing privileges after not timely revalidating (see, e.g., DAB E-File Doc. No. 1 at 2 “this is the first revalidation for me and therefore the first transgression. Going forwards with total awareness I will regularly monitor re-validation status and address it as required”); see also P. Ex. 2 (Declaration of Blanca Guia).  Deactivation decisions in fact have an altogether separate review process that requires a provider or supplier dissatisfied with deactivation to file a rebuttal with CMS’s administrative contractor.  CMS Ex. 4; 42 C.F.R. §§ 424.545(b), 424.546.  It is not clear from the record whether Petitioner sought relief from Noridian through this rebuttal process.  However, my jurisdiction in this case is limited to reviewing the effective date of the approval of Petitioner’s reactivation enrollment application.  42 C.F.R. § 498.3(b)(15).

Thus, even if Petitioner never received notice, this would not be a basis to grant an earlier effective date.  As an appellate panel of the Departmental Appeals Board (DAB) observed in James Shepard, M.D., DAB No. 2793 (2017), providers and suppliers may not challenge indirectly an action for which the regulations prohibit direct administrative review.  Id. at 8.  In Shepard, the panel held that the supplier could not obtain review of a CMS contractor’s rejection of a previous enrollment application by challenging the effective date of enrollment based on a later approved application.  Id.  For the same reasons articulated by the panel in Shepard, Petitioner’s arguments in the present case amount to a backdoor challenge to a contractor determination—here, deactivation—for which there are no administrative appeal rights.  See id.

Nor may I direct the contractor to allow retrospective reimbursement during the gap in billing privileges from November 1, 2024 to December 22, 2024.  A supplier may not receive payment for services or items furnished while deactivated.  42 C.F.R. §§ 424.540(e), 424.555(b).  This represents a departure; CMS previously permitted

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retrospective billing after reactivation.  In promulgating the new regulation, the Secretary explained the change:

After careful reflection . . . the most sensible approach from a program integrity perspective is to prohibit such payments altogether.  In our view, a provider or supplier should not be effectively rewarded for its non-adherence to enrollment requirements (for example, failing to respond to a revalidation request or failing to timely report enrollment information changes) by receiving payment for services or items furnished while out of compliance.

86 Fed. Reg. 62,240, 62,359-60 (Nov. 9, 2021); see Michael B. Zafrani, M.D., DAB No. 3075 at 2 n.1.

Lastly, I have no authority to review CMS’s revalidation process or otherwise grant Petitioner any form of equitable relief.  See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements); UpturnCare Co., d/b/a Accessible Home Health Care, DAB No. 2632 at 19 (2015) (providing the Board may not overturn the denial of provider enrollment in Medicare on equitable grounds).  While I am mindful and sympathetic to the fact that Dr. Pirouz’s practice suffered a significant loss of income while rendering services to the Medicare program, I have no authority under the law to revise the effective date of reactivation determined by CMS.

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VI. Conclusion

Because Noridian received the revalidation application that was processed to approval on December 23, 2024, that same date is the earliest possible reactivation effective date.  See 42 C.F.R. § 424.540(d)(2).

I may not review the deactivation.

Retrospective reimbursement is not available for those whose enrollment has been deactivated.  42 C.F.R. § 424.540(e).