Mokabberi MD, Inc., and Rasoul Mokabberi, MD, DAB CR6765 (2025)

DECISION

November 19, 2024, is the effective date of reactivation of the Medicare enrollment and billing privileges of Petitioner Mokabberi MD, Inc.

I.  Background and Undisputed Facts

The material facts are undisputed.  Any reasonable inferences are drawn in favor of Petitioners.

Petitioner Rasoul Mokabberi, MD is the sole owner of Petitioner Mokabberi MD, Inc.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 12-19.  The Medicare enrollment record summary for Petitioner Rasoul Mokabberi, MD, shows that he reassigned his right to file claims with Medicare for care and services for Medicare-eligible beneficiaries to Petitioner Mokabberi MD, Inc.  CMS Ex. 2 at 4, 9.  CMS offered the reconsidered determination for Petitioner Mokabberi MD, Inc. marked as CMS Ex. 1 at 1-6.  Petitioner submitted the reconsidered determination for Petitioner Rasoul Mokabberi, MD with the request for hearing.  Departmental Appeals Board Electronic

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Filing System (DAB E-File) #1a.  The reconsidered determinations are the same in all respects except for the addressee and the National Provider Identifier (NPI) and Provider Transaction Access Numbers (PTANS) listed.  The reconsidered determinations reflect that they were triggered by a single request for a reconsidered determination filed on November 27, 2024.  CMS Ex. 1 at 1; DAB E-File #1a at 2.  The November 6, 2024 notice from Noridian Healthcare Solutions, Inc., a Medicare administrative contractor (MAC), advised Petitioner Mokabberi MD, Inc. (NPI: 1225501133 / PTAN: CB311370) that its billing privileges were deactivated because its Medicare enrollment record was not revalidated.  CMS Ex. 1 at 20.  There is no notice from the MAC before me that the MAC deactivated Petitioner Rasoul Mokabberi, MD’s Medicare billing privileges or that his Medicare enrollment record required revalidation.

On June 26, 2024, the MAC notified Petitioner Mokabberi MD, Inc. that it needed to revalidate its Medicare enrollment record by September 30, 2024.  The MAC warned that failure to revalidate could result in deactivation of Petitioner Mokabberi MD, Inc.’s billing privileges.  The notice was sent to 1200 North Tustin Avenue, Suite 260, Santa Ana, CA (Tustin Avenue).  CMS Ex. 1 at 26-27.  

On October 2, 2024, the MAC informed Petitioner Mokabberi MD, Inc. that a stay was placed on Petitioner Mokabberi MD, Inc.’s Medicare enrollment record because Petitioners failed to respond to the June 26, 2024 revalidation request.  The MAC warned that failure to revalidate could result in deactivation of billing privileges.  The notice was also sent to Tustin Avenue.  CMS Ex. 1 at 23.

On November 6, 2024, the MAC notified Petitioner Mokabberi MD, Inc. that its billing privileges were deactivated effective October 1, 2024, pursuant to 42 C.F.R. § 424.540(a)(3) because Petitioner Mokabberi MD, Inc.’s Medicare enrollment record had not been revalidated.  The MAC advised Petitioners that they could submit a rebuttal within 15 calendar days of the date of the notice pursuant to 42 C.F.R. § 424.546.  The MAC also advised Petitioners how to recover billing privileges by revalidating their Medicare enrollment record.  CMS Ex. 1 at 20-22.

On November 19, 2024, the MAC received Petitioner Mokabberi MD, Inc.’s Medicare enrollment application to reactivate its deactivated billing number (revalidation/reactivation application).  Petitioner Mokabberi MD, Inc.’s correspondence address was listed as 1140 West La Veta Avenue, Suite 400, Orange, CA (La Veta Avenue).  Petitioner Rasoul Mokabberi, MD was listed as Petitioner Mokabberi MD, Inc.’s sole owner.  CMS Ex. 1 at 12-15.

On November 27, 2024, the MAC sent Petitioner Mokabberi MD, Inc., a letter addressed to the attention of Petitioner Rasoul Mokabberi, MD at an address he listed for himself in the November 19, 2024 revalidation/reactivation application.  The MAC advised that the revalidation/reactivation application was approved; Petitioner Mokabberi MD, Inc.

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retained the PTAN effective date of January 10, 2019; but there was a gap in Petitioner Mokabberi MD, Inc.’s billing privileges from October 1 through November 18, 2024 (gap period).  The MAC advised Petitioners that Medicare would not pay for services provided to Medicare-eligible beneficiaries during the gap period.  The notice informed Petitioners of the right to request a reconsidered determination within 65 days of the date the November 27, 2024 notice was mailed. 1  CMS Ex. 1 at 9-10.

Petitioners requested a reconsidered determination by letter dated November 27, 2024.  Petitioners argued that the revalidation was not completed because Petitioners did not know about the revalidation requirement due to retirement of the staff member responsible for credentialing.  Petitioners also argued that due to the gap period Petitioners would not be paid by Medicare for 353 claims totaling $219,140.  CMS Ex. 1 at 7.

On February 25, 2025, the MAC issued the reconsidered determinations previously described.  The MAC upheld its initial determination reactivating Petitioner Mokabberi MD, Inc.’s billing privileges with a gap in billing privileges from October 1 through November 18, 2024.  CMS Ex. 1 at 1-6; DAB E-File #1a.

Petitioners requested a hearing before an administrative law judge (ALJ) on April 25, 2025 (RFH).  The case was assigned to me to hear and decide on April 29, 2025, and my Standing Order was issued.

On May 29, 2025, CMS filed its prehearing brief and motion for summary judgment (CMS Br.) with CMS Exs. 1 and 2.  On July 28, 2025, Petitioners filed their prehearing brief and opposition to the CMS motion for summary judgment (P. Br.) with Petitioners’ exhibits (P. Exs.) 1 through 4.  CMS filed a reply brief (CMS Reply) on August 1, 2025.  Petitioners did not object to my consideration of CMS Exs. 1 and 2, and they are admitted as evidence.  CMS objected to my consideration of P. Exs. 1 and 3 but not P. Exs. 2 and 4, which are admitted as evidence.  CMS argues that P. Exs. 1 and 3 are new evidence not previously offered on reconsideration and Petitioners have not shown good cause for offering the exhibits for the first time before me.  Petitioners offer P. Ex. 1 to show that CMS should have known Petitioners’ correct mailing address based on claims Petitioners submitted to Medicare through their third-party biller.  P. Br. at 4-5.  Petitioners offer P. Ex. 3 to show that CMS was aware of the adverse impact upon medical operations during the COVID-19 pandemic and argues that CMS should have exercised its discretion in

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some situations to grant exceptions or suspend rules.  P. Br. at 12.  Both assertions of fact by Petitioners based on P. Exs. 1 and 3 are accepted as true for purposes of summary judgment.  But, as explained in detail later in this decision, I have no authority to review the determination to deactivate Petitioner Mokabberi MD, Inc.’s billing privileges.  Therefore, neither P. Ex. 1 or P. Ex. 3 are relevant to any issue that I may decide in this case, and they are not admitted as evidence.  Fed. R. Evid. 401 (relevant evidence has some tendency to make a fact of consequence, that is, a material fact, more or less likely); 42 C.F.R. § 498.60(b)(1) (ALJ is limited to considering relevant and material evidence).

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

In August 2020, Petitioners moved from Tustin Avenue to La Veta Avenue.  P. Br. at 2; P. Ex. 2 ¶ 3.

Petitioners did not notify CMS or the MAC of their change of address in August 2020.  P. Br. at 2-3, 5; RFH; P. Ex. 4.

Petitioner Mokabberi MD, Inc. did not complete revalidation of its Medicare enrollment by September 30, 2024, as requested by the MAC.  RFH; P. Ex. 4.

Medicare accepted claims from Petitioners for roughly four years that listed an address different from that contained in Petitioners’ Medicare enrollment records.  P. Ex. 1 (not admitted); CMS Ex. 2; P. Br. at 4-5, 9, 12-15.

CMS and the MAC could have known through Petitioners’ Medicare claims that Petitioners’ address was La Veta Avenue.  P. Br. at 4, 9; P. Ex. 1 (not admitted).

The MAC sent its June 26, 2024 notice that Petitioners needed to revalidate Medicare enrollment information by September 30, 2024 (CMS Ex. 1 at 26-27), and the October 2, 2024 notice that a stay was placed on Petitioner Mokabberi MD, Inc.’s enrollment record (CMS Ex. 1 at 23-25) to the old Tustin Avenue address that Petitioners vacated in August 2020.  P. Br. at 4-5.

Due to the gap period, Petitioners have not been paid by Medicare for 353 claims totaling $219,140.  CMS Ex. 1 at 7; RFH; P. Ex. 4.

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

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privileges, which are the right to file claims with and to receive payment from Medicare; and

The effective date of reactivation of Petitioner Mokabberi MD, Inc.’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.

1.  Summary judgment is appropriate. 

Petitioners are entitled to a hearing on the record before an ALJ under the Social Security Act (Act).  Act §§ 205(b); 1866(h)(1), (j); 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.”  Liberty Lobby, 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. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3rd 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 Mokabberi MD, Inc.’s billing privileges.  CMS is entitled to judgment as a matter of law and summary judgment is appropriate.

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2.  Petitioner Mokabberi MD, Inc. 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 Mokabberi MD, Inc.’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. 

4.  November 19, 2024, is the effective date of reactivation of Petitioner Mokabberi MD, Inc.’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 Mokabberi MD, Inc.’s billing privileges from October 1 through November 18, 2024, the day before the day the MAC received the Medicare enrollment application it processed to approval.  CMS Ex. 1 at 9, 12.  Petitioners’ 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 Mokabberi MD, Inc. 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 Mokabberi MD, Inc.’s billing privileges were deactivated or suspended rather than being revoked.  There is no dispute Petitioner Mokabberi MD, Inc.’s Medicare enrollment and related billing privileges were deactivated effective October 1, 2024, and reactivated effective November 19, 2024, resulting in the gap in billing privileges from October 1 through November 18, 2024.  Petitioners want the gap in billing privileges eliminated so that they may bill Medicare for care and services delivered to Medicare-eligible beneficiaries during the gap period.  CMS Ex. 1 at 7; 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 November 6, 2024 notice of deactivation cited 42 C.F.R. § 424.540(a)(3) as the basis for deactivation because Petitioner Mokabberi

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MD, Inc. failed to timely revalidate its Medicare enrollment information.  CMS Ex. 1 at 20.  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 November 6, 2024 determination to deactivate Petitioner Mokabberi MD, Inc.’s billing privileges is not subject to appeal or my review.  42 C.F.R. §§ 424.545(b), 424.546(f).  Petitioners do not dispute they received the MAC’s November 6, 2024 notice of the deactivation.  As the MAC informed Petitioners in its November 6, 2024 notice, Petitioners could file a rebuttal to the deactivation pursuant to 42 C.F.R. § 424.546.  CMS Ex. 1 at 20-21.  But the regulations are clear that filing a rebuttal was Petitioners’ only recourse when Medicare billing privileges were deactivated.  Failure to file the rebuttal within 15 calendar days from the date of the notice constitutes a waiver of the right to submit a rebuttal.  42 C.F.R. § 424.546(c).  Action or inaction by the MAC or CMS on a rebuttal is also not appealable or subject to review.  42 C.F.R. § 424.546(f).  Petitioners allege defects in the process followed by the MAC in deactivating Petitioner Mokabberi MD, Inc.’s Medicare enrollment and billing privileges, specifically the use of Petitioners’ old address on the June 26, 2024 notice to revalidate (CMS Ex. 1 at 26) and the October 2, 2024 notice that a stay was placed on Petitioner Mokabberi MD, Inc.’s Medicare enrollment record (CMS Ex. 1 at 23).2  I accept the allegations as true for purposes of summary judgment.  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 have no authority to act related to the determination to deactivate Petitioner Mokabberi MD, Inc.’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 effective date of 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

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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 (2014).

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 Mokabberi MD, Inc.’s Medicare billing privilege must be November 19, 2024, the date the MAC received the enrollment application the MAC processed to approval.  CMS Ex. 1 at 12.  The regulations grant no discretion to the MAC, CMS, or me to select a different reactivation effective date.  There was no error in the determination of the reactivation effective date.

Petitioners’ arguments can be construed to be that the government should be estopped from treating November 19, 2024, as Petitioner Mokabberi MD, Inc.’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); Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  I accept as true for purposes of summary judgment Petitioners’ arguments regarding failures of their credentialing staff member and the allegations the MAC sent notices to an incorrect address.  CMS Ex. 1 at

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7; P. Br.; RFH.  But I find no allegation that any MAC or CMS representative acted fraudulently or engaged in any affirmative misconduct that Petitioners acted in detrimental reliance upon.  I conclude that estoppel is not an issue.

Petitioners’ argument that being unable to bill Medicare during the gap period will cause financial hardship (P. Br.; RFH), specifically the inability to receive payment from Medicare for 353 claims totaling $219,140, 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 Mokabberi MD, Inc.’s billing privileges is November 19, 2024.