Village of Skokie, DAB CR6769 (2025)

DECISION

February 5, 2025, is the effective date of reactivation of the Medicare enrollment and billing privileges of Petitioner.

I.  Background and Undisputed Facts

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

On May 31, 2023, National Government Services, a Medicare administrative contractor (MAC), advised Petitioner that Petitioner needed to revalidate its Medicare enrollment record by August 31, 2023.  The MAC cautioned Petitioner that failure to timely respond could result in deactivation of Petitioner’s billing privileges.  The letter was address to Village of Skokie, Catherine Counard, 5127 Oakton Street, Skokie, Illinois (Oakton Street address).  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 60.

On September 26, 2023, the MAC advised Petitioner by letter that it had placed a hold on Petitioner’s Medicare enrollment record because Petitioner failed to revalidate its Medicare enrollment.  The MAC again advised Petitioner that failure to revalidate its

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Medicare enrollment record could result in deactivation of Petitioner’s billing privileges.  The letter was addressed to Petitioner at the Oakton Street address.  CMS Ex. 1 at 58.

On November 13, 2023, the MAC notified Petitioner that Petitioner’s billing privileges were deactivated effective November 8, 2023, pursuant to 42 C.F.R. § 424.540(a)(3) because Petitioner failed to revalidate its Medicare enrollment record.  The MAC explained that due to the deactivation Petitioner’s Medicare claims would not be paid.  The MAC explained that Petitioner had the right to file a rebuttal pursuant to 42 C.F.R. § 424.545.  The MAC also explained Petitioner could recover billing privileges by revalidating its Medicare enrollment record.  This notice was also addressed to Petitioner at the Oakton Street address.  CMS Ex. 1 at 54-56.  There is no evidence Petitioner filed a rebuttal.

On February 5, 2025, the MAC received Petitioner’s Medicare enrollment application to revalidate its Medicare enrollment and reactivate its billing privileges.  The application listed the Oakton Street address as Petitioner’s correspondence address.  CMS Ex. 1 at 28-43, 45-53.

On March 14, 2025, the MAC advised Petitioner that its revalidation application was approved.  But there was a gap in Petitioner’s Medicare billing privileges from November 8, 2023 through February 4, 2025.  The notice was sent to Petitioner at the Oakton Street address.  CMS Ex. 1 at 13-14, 23-24.

On March 21, 2025, Petitioner requested reconsideration.  CMS Ex. 1 at 10-22.

On April 10, 2025, the MAC issued a reconsidered determination.  The MAC upheld Petitioner’s Medicare enrollment revalidation and billing privilege reactivation with a gap in billing privileges from November 8, 2023 through February 4, 2025.  CMS Ex. 1 at 1-6.

On May 30, 2025, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ).  The case was assigned to me on June 2, 2025, and my Standing Order was issued.

On June 30, 2025, CMS filed its combined prehearing brief and motion for summary judgment with CMS Exs. 1 and 2.  Petitioner has not objected to my consideration of CMS Exs. 1 and 2, and they are admitted as evidence.  On July 17, 2025, Petitioner filed its opposition to CMS’ motion for summary judgment with copies of documents marked

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as exhibits A and B attached.1  CMS filed a reply brief on August 7, 2025, and Petitioner filed a reply brief (P. Reply) on August 8, 2025.

I accept the following additional facts asserted by Petitioner as true for purposes of summary judgment:

Authorized officials of Petitioner did not receive the MAC’s May 31, 2023 notice to revalidate or the September 26, 2023 notice that a hold had been placed on Petitioner’s Medicare enrollment record.  RFH at 1; P. Br. at 3-4.

Authorized officials listed in Petitioner’s enrollment record were no longer employed by Petitioner when MAC notices related to the need to revalidate and the deactivation were sent to Petitioner in 2023.  RFH at 1; CMS Ex. 1 at 19-20; CMS Ex. 2; P. Br. at 2 (document page counter).

Petitioner continued to provide mass immunization services to Medicare-beneficiaries in good faith unaware of the deactivation of its Medicare billing privileges.  RFH; P. Br. at 5 (document page counter).

Petitioner acted promptly to revalidate and reactivate when it discovered that its Medicare billing privileges had been deactivated.  P. Br. at 6 (document page counter); P. Reply at 2.

Petitioner previously had a clean record of Medicare compliance.  P. Br. at 6 (document page counter).

Denying reimbursement for services during the gap period amounting to $32,773.60, penalizes beneficiaries; compromises Petitioner’s ability to procure vaccines, jeopardizes continued operation of community-based flu clinics, and disproportionately impacts residents who depend on the public health department for affordable and accessible immunization services.  RFH; P. Br. at 7; P. Reply at 3.

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II.  Issues, Conclusions of Law, and Analysis

1. 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.

2. 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.

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); 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).

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The undisputed facts set forth above are the facts necessary to resolve this case.  The only issue properly before me is the effective date of reactivation of Petitioner’s billing privileges.  There is no genuine dispute of material fact related to the effective date of the reactivation of Petitioner’s billing privileges.  Petitioner requests that November 8, 2023, be determined to be the retroactive effective date of reactivation of its Medicare billing privileges.  P. Br. at 1-2, 7 (document page counter); P. Reply at 3.  Petitioner’s request for relief must be resolved against Petitioner as a matter of law.  CMS is entitled to judgment as a matter of law and summary judgment is appropriate.2

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.
4. February 5, 2025, is the effective date of reactivation of Petitioner’s billing privileges as that was the date the MAC received Petitioner’s 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 November 8, 2023 through February 4, 2025, the day before the day the MAC received Petitioner’s Medicare enrollment application it processed to approval.  CMS Ex. 1 at 13-16, 24-28.  Petitioner’s grievance is that CMS and the MAC decline to pay for 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.  It is important to understand that 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 November 8, 2023 and not reactivated until February 5, 2025, resulting in the gap in billing privileges from November 8, 2023 through February 4, 2025.  Petitioner wants the gap in billing privileges eliminated by backdating the effective date of reactivation to November 8, 2023, so that Petitioner may

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bill Medicare for vaccinations provided to Medicare-eligible beneficiaries during the gap period.  CMS Ex. 1 at 10-12, 17-18; P. Br. at 1-2, 5-8 (document page counter); P. Reply at 1, 3; RFH.  Petitioner’s request for relief must be resolved against Petitioner as a matter of law.

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 from receipt of a notice from CMS to revalidate.  In this case, the November 13, 2023 notice of deactivation cited 42 C.F.R. § 424.540(a)(3) as authority for deactivation because Petitioner failed to timely revalidate its Medicare enrollment information.  CMS Ex. 1 at 54.  Unlike revocation of Medicare billing privileges, 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 when a provider’s or supplier’s billing privileges are deactivated.  42 C.F.R. § 424.540(e).

The MAC informed Petitioner in its November 13, 2023 notice, that Petitioner had the right to file a rebuttal to the deactivation pursuant to 42 C.F.R. § 424.546.  CMS Ex. 1 at 54.  The regulations are clear that filing a rebuttal was Petitioner’s only recourse when its Medicare billing privileges were deactivated.  42 C.F.R. §§ 424.545(b); 424.546(a).  There is no evidence that Petitioner filed a rebuttal.  Failure to file a rebuttal within 15 calendar days from the date of the notice of deactivation constitutes a waiver of the right to submit a rebuttal.  42 C.F.R. § 424.546(c).  Furthermore, action or inaction by the MAC or CMS on a rebuttal is not appealable or subject to my review.  42 C.F.R. § 424.546(f).

Pursuant to 42 C.F.R. § 424.546(f), the deactivation determination of the MAC or CMS is not an initial determination of CMS or the MAC and not subject to appeal or my review.  42 C.F.R. §§ 498.3(b), 498.5.  Therefore, even if the MAC’s process in deactivating Petitioner’s Medicare enrollment and billing privileges was defective, the MAC’s decision to deactivate Petitioner’s billing privileges is not subject to appeal or my review.  Facts reflecting defects in the process the MAC followed in deactivating Petitioner’s billing are immaterial to this decision, i.e., such facts have no impact on the decision in this case.  Petitioner’s multiple arguments related to deactivation provide no basis for any relief.  Petitioner argues that it did not receive the MAC’s May 31, 2023 notice letter that Petitioner needed to revalidate; the September 26, 2023 notice letter that a hold was placed on payment of Petitioner’s Medicare claims; and the November 13, 2023 notice of deactivation because the notice letters were not addressed to any official

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of Petitioner who was employed by Petitioner at the time those notices were issued.3  P. Br. at 5 (document page counter).  Petitioner asserts responsible staff or officials did not receive those notices.  For purposes of summary judgment, I accept the assertion as true.  But that does not affect the outcome because I have no authority to review that MACs deactivation of Petitioner’s billing privileges.  Petitioner’s arguments that there was a communication breakdown and staff turn-over are also related to the deactivation of Petitioner’s Medicare billing privileges and are immaterial for that reason.  Petitioner argues that when the proper officials learned of the deactivation, Petitioner’s staff and officials acted promptly to file the required Medicare enrollment application to reactivate Petitioner’s billing privileges and revalidate Petitioner’s Medicare enrollment record.  P. Br. at 2 (document page counter).  Petitioner’s arguments challenge whether Petitioner’s billing privileges were properly deactivated.  But I cannot review the MAC’s decision to deactivate.  My review is limited to the reconsidered determination to uphold the reactivation effective date, and that determination is dictated by the regulations.  Contrary to Petitioner’s arguments, issues Petitioner raises regarding the propriety of the deactivation, including notice issues do not defeat summary judgment because the deactivation action is simply not subject to my review and those issues are immaterial.  The fact that controls the effective date of reactivation is the date the MAC received the Medicare enrollment application to reactivate billing privileges that the MAC was able to process to approval.  There is no dispute February 5, 2025, was the date the MAC received Petitioner’s Medicare enrollment application that it processed to approval.  42 C.F.R. § 424.540(d)(2).

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 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 6-7 (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).

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Applying the persuasive 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.  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 its compliance 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.

According to 42 C.F.R. § 424.540(d)(2), 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 February 5, 2025, the date the MAC received the application it processed to approval.  CMS Ex. 1 at 28.  The regulations grant no discretion to the MAC, CMS, or me to select a different reactivation effective date.

Petitioner’s arguments that it acted in good faith; had a clean record of Medicare compliance; continued to provide vaccine services to its residents; and there is a financial hardship due to not receiving reimbursement of $32,773.60 from Medicare are clearly requests for equitable relief.  RFH, P. Br., P. Reply.  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.”).

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III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is February 5, 2025.