Floral Park Ophthalmology, P.C., DAB CR6829 (2026)

DECISION

Floral Park Ophthalmology, P.C., (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 October 18, 2024 as the reactivation effective date of Petitioner’s Medicare enrollment and billing privileges, as that is the date the Medicare administrative contractor received Petitioner’s revalidation/reactivation application that was processed to approval.

I.      Background

On May 31, 2024, CMS contractor National Government Services (NGS) advised Petitioner that it was obligated to revalidate its Medicare enrollment by August 31, 2024.  CMS Ex. 2.  The letter, which was sent to Petitioner’s mailing address on file with Medicare, 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. at 1-2; see CMS Ex. 1 at 2.  The letter further warned that “[i]f

Page 2

we don’t receive your response by [August 31, 2024], we may stop your Medicare billing privileges.”  CMS Ex. 2 at 1.

On September 3, 2024, NGS sent notice to Petitioner that it was “placing a stay on your Medicare enrollment record effective September 3, 2024 because you have not responded to our revalidation request of May 31, 2024.”  CMS Ex. 3 at 1.  The letter also advised that “[f]ailure to submit a revalidation application within 30 days of this notice may result in a deactivation of your Medicare enrollment.”  Id.  Lastly, Petitioner was informed of its right to file a rebuttal if it believed the stay determination was incorrect.  Id. at 2.

On September 25, 2024, Petitioner submitted a CMS-855B application on PECOS.  CMS Ex. 4.  The document was submitted by Petitioner for the purpose of “adding, deleting, or changing general Medicare enrollment information.”  Id. at 1.  More specifically, Petitioner sought to add a new contact person (Lawrence Jindra) to the enrollment.  Id. at 4.  On October 4, 2024, NGS advised Petitioner that it had changed the contact person information as requested.  CMS Ex. 5.

On October 16, 2024, NGS deactivated Petitioner’s Medicare billing privileges effective September 1, 2024.  CMS Ex. 6 at 1.  NGS stated that Petitioner’s deactivation was due to its failure to submit a timely revalidation application.  Id. (citing 42 C.F.R. § 424.540(a)(3)).  NGS advised Petitioner of its right to file a rebuttal if Petitioner believed the deactivation was incorrect.  Id. at 1-2.

On October 18, 2024, NGS received a revalidation/reactivation application from Petitioner.  See CMS Ex. 7.  On October 23, 2024, NGS advised Petitioner that corrections were required to the reactivation application.  CMS Ex. 8 at 1-2.  On October 30, 2024, NGS approved Petitioner’s reactivation application with an effective date of October 18, 2024.  CMS Ex. 9.  NGS also advised Petitioner that there would be “a gap in billing privileges from September 1, 2024 to October 17, 2024 for failing to fully revalidate during the previous revalidation cycle.”  Id. at 1-2.

Petitioner thereafter filed a request for reconsideration of the deactivation and the gap in billing privileges.  CMS Ex. 10.  On February 13, 2025, NGS issued a reconsidered determination and found no error in reactivating Petitioner’s Medicare billing privileges as of October 18, 2024, and with a gap in billing from September 1, 2024 to October 17, 2024.1   CMS Ex. 12 at 3.

Page 3

On April 5, 2025, Petitioner timely requested a hearing to dispute the reconsidered determination.  DAB E-File Doc. Nos. 1-1a.  On April 7, 2025, Administrative Law Judge (ALJ) Jacinta Alves was designated to hear and decide this case and the Civil Remedies Division (CRD) acknowledged the hearing request and issued her 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 Doc. No. 2a.

On May 9, 2025, CMS timely filed a motion for summary judgment and pre-hearing brief (CMS Br.) and twelve proposed exhibits (CMS Exs. 1-12).  Id. at Doc. Nos. 6-6l.  On June 16, 2025, Petitioner filed an opposition to CMS’s motion for summary judgement and prehearing brief (P. Br.).  Id. at Doc. No. 7.  On August 29, 2025, CMS filed a reply brief.  Id. at Doc. No. 8.  On December 29, 2025, this case was reassigned to the undersigned ALJ.  Id. at Doc. No. 9.

II.      Admission of Exhibits and Decision on the Record

Petitioner did not object to CMS Exs. 1 through 12.  In the absence of objections, I admit CMS Exs. 1 through 12 into the record.  Neither party has submitted any proposed witnesses.  As such, a hearing in this case is unnecessary, and I decide this case based on the written record.  CRDP §§ 16(b), 19(b), (d).  CMS’s motion for summary judgment is therefore moot.

III.      Issue

Whether CMS had a legitimate basis to establish October 18, 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 Analysis 2

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

Page 4

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 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 7-8 (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.”

Page 5

42 C.F.R. § 424.540(a)(3).  If CMS deactivates a supplier’s Medicare billing privileges, “[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 Medicare 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 reactivation submission that was processed to approval.  42 C.F.R. § 424.540(d)(2).

B.  Analysis

1. NGS received Petitioner’s revalidation/reactivation enrollment application that was processed to approval on October 18, 2024 and that date 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 reactivation submission that was subsequently processed to approval.  42 C.F.R. § 424.540(d)(2).

In this case, NGS received a revalidation/reactivation enrollment application from Petitioner on October 18, 2024, and this application was processed to approval.  CMS Exs. 7, 9.  NGS thus appropriately found the effective date of Medicare billing privileges for Petitioner to be October 18, 2024, the date of receipt of the Medicare application that was subsequently approved by the Medicare contractor with a gap in billing privileges from September 1, 2024 through October 17, 2024.  CMS Exs. 9, 12.  Moreover, Petitioner does not claim that it submitted an earlier application than the one submitted on October 18, 2024, that NGS received and subsequently approved.

Therefore, pursuant to 42 C.F.R. § 424.540(d)(2), the date NGS received Petitioner’s subsequently-approved enrollment application – October 18, 2024 – is the correct reactivation effective date of enrollment.  Michael B. Zafrani, M.D., DAB No. 3075 at 2 n.1 (2022).

Page 6

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

In its brief, Petitioner generally contends that NGS erred in deactivating its Medicare billing privileges, which resulted in a gap of billing privileges from September 1, 2024 through October 17, 2024.  P. Br. at 1-3.  Specifically, Petitioner contends that it “is not appealing the deactivation; it is denying in its appeal that the petitioner was not in fact deactivated at all since it had never received notice of deactivation.”  Id. at 2.

I acknowledge Petitioner’s argument, but I have no authority to review NGS’ deactivation of its Medicare billing privileges.  CMS Ex. 6; Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6 (2019); Ark. Health Grp., DAB No. 2929 at 7-9 (2019).  Here, the lack of notice is only relevant, if at all, to whether NGS acted properly in deactivating Petitioner’s billing privileges.  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.  42 C.F.R. §§ 424.545(b), 424.546.  It does not appear that Petitioner filed a rebuttal and 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).

Further, even if Petitioner never received notice, this would not be a basis to grant an earlier effective date.  As the Departmental Appeals Board (Board) 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.  Shepard, DAB No. 2793 at 8.  In Shepard, the Board 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 for retrospective reimbursement during the gap in billing privileges.  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 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

Page 7

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 10-11 (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., DAB No. 2632 at 19 (2015) (providing the Board may not overturn the denial of provider enrollment in Medicare on equitable grounds).  I am sympathetic to the fact that the practice has been a Medicare provider since 1999, however, I have no authority under the law to revise the effective date of reactivation determined by CMS.

VI.     Conclusion

Because NGS received the revalidation/reactivation application that was processed to approval on October 18, 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).