New England Cardiology, LLC, DAB CR6761 (2025)

DECISION

August 20, 2024, is the effective date of reactivation of the Medicare enrollment and billing privileges of Petitioner, New England Cardiology, LLC. 

I. Background and Findings of Fact

Petitioner has been enrolled in Medicare with billing privileges since at least October 20, 2017.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 50.

On February 7, 2024, National Government Services, a Medicare administrative contractor (MAC), notified Petitioner by letter that Petitioner’s billing privileges were deactivated effective February 1, 2024.  The MAC advised Petitioner that the deactivation was pursuant to 42 C.F.R. § 424.540(a)(3)1  due to Petitioner’s failure to timely revalidate its enrollment record.  CMS Ex. 1 at 34, 38. 

Page 2

On August 20, 2024, the MAC received Petitioner’s Medicare enrollment application to reactivate its billing privileges.  CMS Ex. 1 at 42-49. 

Petitioner’s August 20, 2024 enrollment application was processed to approval by the MAC.  On August 30, 2024, the MAC notified Petitioner of its initial determination that Petitioner’s reactivation enrollment application was approved.  Petitioner retained its Provider Transaction Access Number (PTAN) that was effective October 20, 2017.  But there was a gap in Petitioner’s billing privileges from February 1, 2024 through August 19, 2024, due to the deactivation of Petitioner’s billing privileges for failure to timely revalidate.  The MAC advised Petitioner that it would not be reimbursed for Medicare claims for services provided to Medicare beneficiaries during the gap period.  CMS Ex. 1 at 50-51. 

Petitioner requested a reconsidered determination by an undated letter received by the MAC on October 4, 2024.  CMS Ex. 1 at 7-10. 

On January 3, 2025, the MAC issued a reconsidered determination.  The MAC upheld its initial determination reactivating Petitioner’s billing privileges with a gap in billing privileges from February 1 through August 19, 2024.  CMS Ex. 1 at 1-6. 

Petitioner requested a hearing before an administrative law judge (ALJ) on January 7, 2025 (RFH).  The case was assigned to me to hear and decide on January 8, 2025, and my Standing Order was issued. 

On February 7, 2025, CMS filed its prehearing brief and motion for summary judgment (CMS Br.) with CMS Exs. 1 through 5.  On March 20, 2025, Petitioner filed its brief (P. Br.) with two documents that are treated as Petitioner’s Exhibits (P. Exs.) 1 and 2.  Departmental Appeals Board Electronic Filing System (DAB E-File) #6a (P. Ex. 1); #6b

Page 3

(P. Ex. 2).  CMS waived the right to file a reply on April 3, 2025.  No objections have been made to my consideration of CMS Exs. 1 through 5 and P. Exs. 1 and 2, and they are admitted as evidence. 

The following assertions of fact by Petitioner are also accepted as true for purposes of summary judgment: 

On June 1, 2023, Petitioner’s 10-year contract with Steward Healthcare to provide medical services ended, causing chaos in Petitioner’s administration and finances.  P. Br. at 1; CMS Ex. 1 at 9; RFH. 

The MAC’s August 31, 2023 notice to Petitioner to revalidate its Medicare enrollment record was addressed to Petitioner and Davor Kvaternik, MD at 5 Steeple Court, Andover, Massachusetts, rather than, Petitioner and Pierre Chahraban, MD at 5 Steeple Court.  P. Exs. 1, 2; P. Br. at 1; CMS Ex. 1 at 9, 26-29; RFH. 

Petitioner’s owner and authorized official did not receive the MAC’s August 31, 2023 notice to revalidate until after the 30-day deadline for revalidation expired.  P. Br. at 1; RFH. 

When Petitioner’s authorized official learned that revalidation was required, Petitioner acted promptly to file the necessary application.  P. Br. at 1. 

Failure to eliminate the gap in Petitioner’s billing privileges, at least from February 1 through May 31, 2024, will cause a financial hardship for Petitioner and its medical team.  P. Br. at 2; CMS Ex. 1 at 9-10; RFH.

II.  Issues, Conclusions of Law, and Analysis

A.  Issues

Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Medicare billing privileges, which are the right to file claims with and to receive payment from Medicare; and

The effective date of reactivation of Petitioner’s billing privileges. 

B.  Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis applying the law to the undisputed facts. 

Page 4

1.  Summary judgment is appropriate. 

Petitioner is entitled to a hearing on the record before an ALJ under the Social Security Act (Act).  Act §§ 205(b); 1866(h)(1), (j)(8); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  The Departmental Appeals Board (Board) has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  I advised the parties in the Standing Order ¶¶ D and G that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).  A test for whether an issue of fact is genuinely in dispute is whether “the evidence [as to that issue] is such that a reasonable jury could return a verdict for the nonmoving party.”  477 U.S. at 248.  In evaluating whether there is a genuine issue as to a material fact, an ALJ must view the facts and the inferences to be drawn from the facts in the light most favorable to the nonmoving party, which I have done.  See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). 

The undisputed facts set forth above are the facts necessary to resolve this case.  There is no genuine dispute of material fact related to the effective date of the reactivation of Petitioner’s billing privileges.  CMS is entitled to judgment as a matter of law and summary judgment is appropriate.  

2.  Petitioner has no right to ALJ review of the determination of the MAC to deactivate its billing privileges.  42 C.F.R. § 424.546(f). 

3.  There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges, i.e., the date of reactivation of Petitioner’s right to submit claims to and receive payment from Medicare for care and services delivered to Medicare-eligible beneficiaries. 

Page 5

4.  August 20, 2024, is the effective date of reactivation of Petitioner’s billing privileges as that was the date the MAC received the Medicare enrollment application that it could process to approval.  42 C.F.R. § 424.540(d)(2).  

This case involves a gap in Petitioner’s billing privileges from February 1 through August 19, 2024, the day before the day the MAC received Petitioner’s Medicare enrollment application it processed to approval.  Petitioner’s grievance is that CMS and the MAC decline to pay for care and services rendered to Medicare-eligible beneficiaries during the gap period, even though there is no dispute that Petitioner was enrolled in Medicare during the gap period.  For purposes of this decision, it is important to understand that there is a difference between deactivation of Medicare enrollment and billing privileges and revocation of Medicare enrollment and billing privileges.  Petitioner’s billing privileges were deactivated or suspended rather than being revoked.  There is no dispute Petitioner’s Medicare enrollment and related billing privileges were deactivated effective February 1, 2024 and reactivated August 20, 2024, resulting in the gap in billing privileges from February 1 through August 19, 2024.  Petitioner wants the gap in billing privileges eliminated so that it may bill Medicare for care and services delivered to Medicare-eligible beneficiaries during the gap period.  CMS Ex. 1 at 9-10; P. Br.; RFH. 

The Secretary of the U.S. Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. pt. 424 that establish a process for enrolling providers and suppliers in Medicare.  Pursuant to the regulations, CMS or the MAC may deactivate the billing privileges of an enrolled provider or supplier for any of the eight reasons listed in 42 C.F.R. § 424.540(a).  Pursuant to 42 C.F.R. § 424.540(a)(3), Medicare billing privileges may be deactivated if a provider or supplier fails to revalidate its enrollment information within 90 calendar days of receipt of a notice from CMS to revalidate.  In this case, the MAC’s February 7, 2024 notice of deactivation cited 42 C.F.R. § 424.540(a)(3) as the basis for deactivation because Petitioner failed to timely revalidate its Medicare enrollment information.  CMS Ex. 1 at 34, 38.  Deactivation of billing privileges has no effect on a provider’s or supplier’s “participation agreement or any conditions of participation.”  42 C.F.R. § 424.540(c).  But a provider or supplier may receive no payment from Medicare for items or services provided to a Medicare-eligible beneficiary during the period of deactivation, the gap period.  42 C.F.R. § 424.540(e). 

The MAC’s February 7, 2024 determination to deactivate Petitioner’s billing privileges is not subject to appeal or my review.  42 C.F.R. § 424.546(f).  Petitioner alleges defects in the process followed by the MAC in deactivating Petitioner’s Medicare enrollment and billing privileges.  I accept the allegations as true for purposes of summary judgment, including the fact the notice to revalidate was sent to the wrong individual or address.  But the deactivation determination and any errors made by the MAC in making that determination are not subject to my review and are immaterial to this decision because I

Page 6

have no authority to act related to the determination to deactivate Petitioner’s Medicare billing privileges. 

The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the reactivation of billing privileges.  42 C.F.R. §§ 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15) provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination subject to review by an ALJ.  The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the reactivation of billing privileges.  See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-12 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation). 

Applying the reasoning of the Board in Alvarez and Urology, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges.  Furthermore, the only determination of CMS or the MAC that is subject to my review in a provider or supplier enrollment case is the reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7. 

Billing privileges may be reactivated in accordance with 42 C.F.R. § 424.540(b).  The provider or supplier must recertify the accuracy of its enrollment information, submit any missing information, and certify it complies with all applicable Medicare enrollment requirements.  42 C.F.R. § 424.540(b)(1).  CMS may for any reason require a deactivated provider or supplier to submit a complete Medicare enrollment application (CMS-855) to reactivate billing privileges.  42 C.F.R. § 424.540(b)(2).  The regulation clearly gives CMS and the MAC discretion to accept a certification and partial application with missing information provided or require that Petitioner submit a complete Medicare enrollment application. 

The effective date of the reactivation of billing privileges is fixed by 42 C.F.R. § 424.540(d)(2).  The regulation requires that the effective date of reactivation of billing privileges is the date the MAC or CMS received the Medicare enrollment application that was processed to approval.  Therefore, by operation of 42 C.F.R. § 424.540(d)(2), the effective date of the reactivation of Petitioner’s Medicare billing privilege must be August 20, 2024, the date the MAC received the Petitioner’s enrollment application the MAC processed to approval.  The regulations grant no discretion to the MAC, CMS, or me to select a different reactivation effective date. 

Page 7

Petitioner’s arguments can be construed to be that the government should be estopped from treating August 20, 2024, as Petitioner’s reactivation effective date.  But as a matter of law, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  I accept as true for purposes of summary judgment Petitioner’s allegations its billing agent had difficulty communicating with MAC representatives and the allegations the MAC sent notices to incorrect individuals or addresses.  CMS Ex. 1 at 9-10; P. Br.; RFH.  But I find no allegation that any MAC or CMS representative acted fraudulently or engaged in any affirmative misconduct that Petitioner acted in detrimental reliance upon.  I conclude that estoppel is not an issue. 

Petitioner’s argument that being unable to bill Medicare during the gap period will cause financial hardship (P. Br.; RFH) may be viewed as a request for equitable relief.  I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (noting that “[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”). 

III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is August 20, 2024.