Miller Eye Care and Surgery / Byron Miller, DAB CR6784 (2025)

DECISION

Petitioner, Miller Eye Care and Surgery / Byron Miller, challenges the Centers for Medicare & Medicaid Services’ (CMS’s) determination of its effective date as a biller to the Medicare program.  As explained below, I find CMS properly determined November 15, 2024, with retrospective billing permitted as of October 16, 2024, as the effective date of Petitioner’s Medicare enrollment. 

I. Background

Petitioner is an ophthalmologist and medical practice that initially sought Medicare billing privileges on October 26, 2023.  See CMS Exhibits (Exs.) 16-18.  On that date, Petitioner submitted three applications:  a CMS-855B (Medicare initial enrollment application for organizations and group practices); a CMS-855I (Medicare change of information application); and a CMS-855R (Medicare reassignment of benefits application).  Id. 

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On November 22, 2023, Novitas Solutions (Novitas), a CMS contractor, informed Petitioner that additional information and/or documentation was required to continue processing the applications.  CMS Ex. 15.  Novitas further advised that it “may reject your application(s) if you do not furnish complete information within 30 calendar days from the postmarked/emailed date of this letter pursuant to 42 C.F.R. § 424.525.”  Id. at 1.

Petitioner did not provide the requested revisions or documentation, and as a result, on December 28, 2023, Novitas rejected the CMS-855B and CMS-855I applications.  CMS Ex. 14.  Novitas further noted that Petitioner could resubmit a new, signed enrollment application, inclusive of all the corrections requested via the website or by postage mail. CMS Ex. 14 at 2.  In an additional letter dated December 28, 2023, Novitas informed Petitioner that it was closing Petitioner’s CMS-855R application as it was “not needed for the transaction in question.”  CMS Ex. 13 at 1.  

On January 4, 2024, Solutions Practice Management, Petitioner’s previous employer, submitted a web-based CMS-855R application to Novitas seeking termination of reassignment benefits for Petitioner, Byron Miller.  CMS Ex. 12.  On January 12, 2024, Novitas approved this application.  CMS Ex. 11. 

On November 15, 2024, Novitas received a CMS-855B application from Petitioner.  CMS Ex. 10.  On December 13, 2024, Novitas requested revisions and/or additional documentation.  CMS Ex. 9.  Novitas specifically requested Petitioner submit a CMS-855I application as the “CMS-855B is the incorrect application for the fulfillment of your request as a sole owner.”  Id. at 1.  Subsequently, on December 23, 2024, Petitioner submitted a CMS-855I (Medicare initial enrollment application for sole practitioners) and a CMS-855B (Medicare initial enrollment application for group practitioners).  CMS Exs. 7-8.  On January 15, 2025, Novitas advised Petitioner that the CMS-855B application was not needed.  CMS Ex. 5.  On February 3, 2025, Novitas approved Petitioner’s CMS-855I enrollment application with an effective date of November 23, 2024.  CMS Ex. 4.  

Petitioner thereafter filed a request for reconsideration seeking that the effective date be changed to October 26, 2023.  CMS Ex. 2.  Petitioner explained that the “enrollment process has been long and arduous [and that m]istakes have been made by my staff and by Novitas[.]”  Id. at 2.  However, Petitioner averred that it initially attempted to enroll in Medicare on October 26, 2023, but its enrollment was incorrectly approved for his old employer.  Id.  Petitioner added that the hack of Change Healthcare delayed its subsequent claims applications.  Id.   Petitioner further states that he has been enrolled as a Medicare provider since August 1980 and has continued to provide treatment to Medicare beneficiaries while awaiting the “new approval.”  Id.  In a supplemental reconsideration filing, Petitioner detailed the financial hardship the delay has caused and that the hack prevented him from submitting its subsequent application from March 2024 to November 2024.  CMS Ex. 3.  

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On June 16, 2025, Novitas issued a favorable decision for Petitioner.  CMS Ex. 1.  Specifically, Novitas stated that it should have processed the application with an application receipt date of November 15, 2024, rather than November 23, 2024.  Id. at 5.  As such, Novitas determined November 15, 2024, with retrospective billing permitted as of October 16, 2024, as the effective date of Petitioner’s Medicare enrollment.  Id. 

On June 25, 2025, Petitioner timely requested a hearing to dispute the reconsidered determination.  DAB E-File Doc. Nos. 1-1b.  On June 27, 2025, the undersigned Administrative Law Judge (ALJ) was designated to hear and decide this case.  Id. at Doc. No. 2.  That same day, the Civil Remedies Division (CRD) acknowledged the hearing request and issued my Standing Pre-hearing Order (Standing Order).  Id. at Doc. No. 2a.  Among other things, the Standing Order instructed the parties to file pre-hearing exchanges by specified dates.  Id. 

On August 15, 2025, CMS filed a motion for summary judgment and pre-hearing brief and 22 proposed exhibits (CMS Exs. 1-22).  Id. at Doc. Nos. 6-6w.  On September 21, 2025, Petitioner timely filed two proposed exhibits (P. Exs. 1-2):  a pre-hearing statement along with a copy of a press release dated March 5, 2024, entitled “HHS Statement Regarding the Cyberattack on Change Healthcare.”  Id. at Doc. Nos. 7-7a.  On September 30, 2025, CMS submitted notice that it would not file a reply brief.  Id. at Doc. No. 8. 

II. Admission of Exhibits and Decision on the Record

Petitioner did not object to CMS Exs. 1 through 22.  In the absence of objections, I admit CMS Exs. 1 through 22 into the record.  CMS did not object to Petitioner’s two proposed exhibits.  In the absence of objection from CMS, I take judicial notice of P. Ex. 1, as it is a statement from the Department of Health and Human Services that is not subject to reasonable dispute, making its authenticity not reasonably questionable.  I also admit P. Ex. 2 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.”). 

If the parties wanted an in-person hearing, the parties had to submit written direct testimony from their witnesses and the opposing party had to request to cross-examine one or more of those witnesses.  Standing Order ¶¶ 11-13; CRDP §§ 16(b), 19(b). 

Because CMS did not offer any written direct testimony from witnesses and CMS did not request to cross-examine Petitioner, I do not need to hold a hearing and may issue a decision based on the written record.  Vandalia Park, DAB No. 1940 (2004).  Therefore, I deny CMS’s motion for summary judgment as moot.  In rendering this decision on the record, I address the matters raised by Petitioner in its hearing request.  

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III. Issue

Whether CMS had a legitimate basis to establish November 15, 2024, with retrospective billing permitted as of October 16, 2024, as the effective date of Petitioner’s 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

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 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 enrollment 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 a supplier’s 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.

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§ 424.521(a)(1). 

The regulations further authorize CMS to reject an enrollment application.  CMS may reject an enrollment application for several reasons.  42 C.F.R. § 424.525.  Applications “that are rejected are not afforded appeal rights.”  42 C.F.R. § 424.525(d).

B. Analysis

Petitioner’s effective date of Medicare enrollment is November 15, 2024, with retrospective billing permitted as of October 16, 2024, and equitable considerations do not provide me with the basis to grant Petitioner an earlier effective date.

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician organizations or non-physician practitioner organizations is the later of the “date of filing” of a subsequently approved application or the date the provider or supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  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 2. 

In this case, Petitioner filed an enrollment application, and Novitas received the application on November 15, 2024.   CMS Exs. 1, 10.  This application was processed to approval.  CMS Exs. 1, 10.  Novitas appropriately found the effective date of Medicare billing privileges for Petitioner to be November 15, 2024, the date of Petitioner’s Medicare application filing that was subsequently approved by the contractor.  CMS Ex. 1; Timothy Onyiuke, M.D., DAB No. 3092 at 2 (2023).  Novitas also correctly found that Petitioner qualified for retrospective billing privileges of 30 days, resulting in an effective retrospective billing date of October 16, 2024.  CMS Ex. 1; see 42 C.F.R. § 424.521(a)(1)(i). 

In its request for hearing, Petitioner seems to claim that both its October 26, 2023 and January 4, 2024 applications should be treated as initial enrollment applications that were processed to approval for effective date purposes.  See RFH; P. Ex. 2; see also CMS Exs. 2-3, 12.  At the outset, I note that Petitioner’s initial enrollment applications submitted on October 26, 2023, were rejected on December 28, 2023, because Petitioner did not provide the requested revisions or documentation.  CMS Ex. 14.  Therefore, I am unable to review Novitas’ decision to reject Petitioner’s initial applications because that rejection is not an initial determination which falls within my jurisdiction.  42 C.F.R. § 498.3(b).  Indeed, the Secretary’s regulations explicitly preclude a supplier like Petitioner from appealing the rejection of an enrollment application before me.  42 C.F.R. § 424.525(d); see also James Shepard, M.D., DAB No. 2793 at 8 (2017) (providing 42 C.F.R.

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§ 424.525(d) “plainly prohibits” ALJ review of a rejected application because there are no appeal rights for such a determination).  Petitioner is not permitted to “seek review of an unappealable rejection of an incomplete application by the ‘back door’ route of challenging the effective date of a later application which was processed to approval.” Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 8 (2019). 

Moreover, there is no evidence that Petitioner submitted an enrollment application on January 4, 2024, as it now claims.  See RFH.  Rather, the record shows that Solutions Practice Management, Petitioner’s former employer, submitted an application on January 4, 2024, for the sole purpose of reassigning Petitioner’s Medicare benefits.  CMS Ex. 12. In fact, in the section entitled “Reason for Submission” it states:  

A Medicare Part B practitioner is currently enrolled in Medicare and is reassigning his/her benefits to a Part B supplier, Part B practitioner or Part A provider currently enrolled in Medicare.

Id. at 1.

Thus, because there is no evidence that Petitioner submitted an enrollment application prior to November 15, 2024, that could be processed to approval, Novitas correctly assigned Petitioner a November 15, 2024 effective date of enrollment and billing privileges, with retrospective billing privileges authorized beginning October 16, 2024.  See CMS Ex. 1; 42 C.F.R. §§ 424.520(d)(1)(i), 424.521(a)(1)(i).

Petitioner’s arguments may also be construed as requests for equitable relief or for estoppel.  See, e.g., RFH (“Novitas made an error and entered my previous employer, Solutions Practice Management, NPI for Solutions rather than my new NPI for Miller Eye Care and Surgery.”); CMS Ex. 2 at 2 (“My enrollment process has been long and arduous.  Mistakes have been made by my staff and by Novitas”); CMS Ex. 3 at 2 (“I have been working diligently to be approved for Medicare participation.  The Change Health[]care hack was the major factor in not being able to get my Medicare participation done in a timely manner.”); P. Ex. 2 (citing P. Ex. 1) (reliance on the HHS’s Press Release, which states that Medicare Administrative Contractors should expedite requests for new electronic data interchange enrollment for claim processing purposes).

I am sympathetic to Petitioner’s situation and acknowledge his efforts to comply with the application process.  However, the request to modify the effective date of enrollment due to extenuating circumstances has no basis in law and is instead a plea for equitable relief.  

I have no authority to grant Petitioner equitable relief and have no authority to grant Petitioner an earlier effective date based on equitable considerations.  US Ultrasound, DAB No. 2302 at 8 (2010); Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 9 (2019).  The Board “has repeatedly held that it, and ALJs, are bound by the applicable

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regulations and cannot alter an effective date based on principles of equity.”  Gaurav Lakhanpal, MD, DAB No. 2951 at 7 (2019) (citations omitted); see also Decatur Health Imaging, LLC, DAB No. 2805 at 11 (2017) (“Equitable considerations . . . provide no basis to . . . assign an earlier effective date.”).  Furthermore, 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).  There is no evidence of affirmative misconduct by government agents.  Petitioner’s arguments, therefore, establish no basis for relief.

My jurisdiction in this case is limited to review of CMS’s determination of the effective date of Petitioner’s applications under 42 C.F.R. § 424.520(d).  Here, the governing regulations support an effective date of November 15, 2024, with retrospective billing privileges as of October 16, 2024, and I may not adjust these dates based on equitable grounds.  Again, while I am sympathetic to Petitioner’s inability to receive Medicare reimbursement for services rendered, I do not have authority to add a period of retrospective or retroactive billing.  See 42 C.F.R. § 498.3(b)(15).

VI. Conclusion

I affirm CMS’s decision that the effective date of Petitioner’s Medicare enrollment and billing privilege is November 15, 2024, with retrospective billing permitted as of October 16, 2024.