A C Ojascastro Inc., DAB CR6841 (2026)

DECISION

Petitioner, A C Ojascastro Inc., challenges the Centers for Medicare and 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 February 17, 2025 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 reactivation application that was subsequently approved. 

I. Background

On March 27, 2024, CMS contractor, Wisconsin Physicians Service (WPS), advised Petitioner that it was obligated to revalidate its Medicare enrollment by June 30, 2024.  CMS Ex. 1 at 1.  The letter informed Petitioner that it could resubmit its revalidation application either online through the Medicare Provider Enrollment, Chain, and Ownership System (PECOS) or by mail.  Id.  The letter, which was mailed to Petitioner, further warned Petitioner that “[i]f we don’t receive your response by then, we may stop your Medicare billing privileges.”  Id. 

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On July 3, 2024, WPS placed a stay on Petitioner’s Medicare enrollment record effective July 3, 2024, because Petitioner failed to respond to the March 27, 2024 revalidation request.  CMS Ex. 2 at 1. 

On July 31, 2024, Petitioner submitted an application to revalidate its Medicare enrollment information.  CMS Ex. 3 at 1; CMS Ex. 4 at 1.  On August 1, 2024, WPS informed Petitioner that further revisions and additional information, including Form CMS-588, Authorization Agreement for Electronic Funds Transfer, were required and must be submitted within 30 days or its enrollment would be deactivated.  CMS Ex. 4 at 1. 

On August 20, 2024, WPS sent an email to Petitioner stating that “I have received your corrections and reviewed [them on] August 20, 2024” but that Petitioner still needed to submit the Form CMS-588 and have it signed by an authorized or delegated official.  CMS Ex. 5 at 1.  On August 22, 2024, WPS again advised Petitioner that it needed to resubmit a new CMS-588 and attached the form to the email.  CMS Ex. 6 at 1-2.  Petitioner’s representative emailed WPS on August 23, 2024, stating that she had faxed the signed CMS-588 form and asked if there was any additional information needed.  Departmental Appeals Board (DAB) Electronic Filing System (E-File) Doc. No. 1e at 3. Again, the submitted CMS-588 was signed by an individual who was not listed as Petitioner’s authorized or delegated official.  CMS Ex. 6 at 2-3; CMS Ex. 3 at 4.  On August 26, 2024, WPS responded stating that “I will watch for the information to be attached to the application and will let you know if anything else is needed.”  DAB E-File Doc. No. 1e at 2.  

On September 4, 2024, WPS deactivated Petitioner’s Medicare billing privileges effective September 3, 2024.  CMS Ex. 7 at 1.  As the basis for the deactivation, WPS stated that Petitioner failed to timely reactivate its enrollment or that the application was rejected because Petitioner failed to respond to requests for more information.  Id. (citing 42 C.F.R. § 424.540(a)(3)).  WPS further advised Petitioner of its right to file a rebuttal if Petitioner believed the deactivation determination was incorrect.  Id. at 1-2. 

Also on September 4, 2024, Petitioner’s representative emailed WPS stating: “I received notice that the revalidation was not approved and the doctor will stop receiving payments.  Could you please contact me as soon as possible.  I thought you had everything you needed.”  DAB E-File Doc. No. 1e at 2.  The next day, WPS responded that “[t]his will be handled by the next available representative that works the que [sic] and if anything would be required, they will contact you if I am unable to get the application.”  Id. at 1. 

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On February 17, 2025, WPS received another revalidation application from Petitioner.  CMS Ex. 8 at 1.  Petitioner also updated its delegated official.  Id. at 2, 5.  WPS subsequently approved Petitioner’s application with an effective date of February 17, 2025.  CMS Ex. 9 at 1.  WPS also advised Petitioner that there would be a gap in billing privileges from September 3, 2024 through February 16, 2025.  Id. 

Petitioner thereafter filed a request for reconsideration of the deactivation and the gap in billing privileges.  CMS Ex. 10.  Petitioner specifically averred that it “does not have enough funds to cover the cost of caring for Medicare patients” and “patients are now calling very concerned because they are receiving notifications that their Medicare claims are being denied.” Id.  On May 27, 2025, WPS issued a reconsidered determination and found no error in reactivating Petitioner’s Medicare billing privileges as of February 17, 2025, with a billing gap from September 3, 2024 through February 16, 2025.  CMS Ex. 11 at 1. 

On July 7, 2025, Petitioner timely requested a hearing to dispute the reconsidered determination.  DAB E-File Doc. Nos. 1-1e.  That same day, I was designated to hear and decide this case and the Civil Remedies Division (CRD) acknowledged the hearing request and issued my Standing Pre-hearing Order (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 2a. 

On August 11, 2025, CMS filed a motion for summary judgment and pre-hearing brief (CMS Br.) and eleven proposed exhibits (CMS Exs. 1-11).  Id. at Doc. Nos. 4-4n.  On September 17, 2025, I issued an Order to Show Cause after Petitioner failed to file a pre-hearing exchange by the deadline.  Id. at Doc. No. 5.  On September 18, 2025, Petitioner filed a letter in response to the Order to Show Cause.  Id. at Doc. No. 6.  On September 22, 2025, I issued an Order to Discharge the Order to Show Cause and informed Petitioner that it had until October 6, 2025 to file additional documents and that if nothing was filed, “I will construe its request for hearing and its accompanying exhibits as its prehearing exchange.”  Id. at Doc. No. 7.  Petitioner did not file any additional documents.  

II. Admission of Exhibits and Decision on the Record

Petitioner did not object to CMS Exhibits 1 through 11.  In the absence of objections, I admit CMS Exs. 1 through 11 into the record. 

With its request for hearing, Petitioner submitted several unmarked documents.  See DAB E-File Doc. Nos. 1-1e.  I will mark these documents collectively as Petitioner’s Exhibit 1.

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Although CMS did not object to Petitioner’s documents, I “must exclude ‘new documentary evidence’ – that is, documentary evidence that a provider did not previously submit to CMS at the reconsideration stage (or earlier) – unless [I] determine[] that ‘the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.’”  Care Pro Home Health, Inc., DAB No. 2723 at 11 (2016) (citing 42 C.F.R. § 498.56(e)(1)).  As it appears that all these documents offered by Petitioner were previously submitted to CMS during the proceedings below, Petitioner’s Exhibit 1 is admitted into the record. 

The Standing Order advised the parties that an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness, and the opposing party requested an opportunity to cross-examine the witness.  Standing Order ¶¶ 11-13; see Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross-examine those witnesses).  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 February 17, 2025, 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 Analysis1 

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

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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 Dulce, 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

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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 recertify to the accuracy of its enrollment information.”  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 reactivations of an enrolled supplier’s 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 submission that was processed to approval.  42 C.F.R. § 424.540(d)(2). 

B. Analysis

1. On February 17, 2025, WPS received Petitioner’s revalidation enrollment application that was processed to approval, which 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 submission that was subsequently processed to approval.  42 C.F.R. § 424.540(d)(2). 

In this case, WPS received a revalidation enrollment application from Petitioner on February 17, 2025, and this application was processed to approval.  CMS Ex. 8 at 1.  WPS thus appropriately found the effective date of Medicare billing privileges for Petitioner to be February 17, 2025, with a gap in billing privileges from September 3, 2024 through February 16, 2025.  Id. 

Therefore, pursuant to 42 C.F.R. § 424.540(d)(2), the date WPS received Petitioner’s subsequently-approved enrollment application—February 17, 2025—is the correct reactivation effective date of enrollment.  Michael B. Zafrani, M.D., DAB No. 3075 at 2 n.1 (2022). 

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

In its Request for Hearing, Petitioner generally contends that WPS erred in deactivating its Medicare billing privileges, which resulted in a gap of billing privileges from September 3, 2024 through February 16, 2025.  Request for Hearing.  Petitioner specifically states: 

It was believed at this time that all documentation was properly submitted. Please note that upon every request for information, I responded and submitted the documentation as soon as possible. 

If additional information was required, I would have provided it before the deadline.  

As payments were being received, again it was believed that revalidation was approved.  

It was not until February 2025 when I was informed by our billing manager that we were no longer receiving payments that I contacted WPS to inquire about the revalidation.  Again, all documentation was submitted again with revalidation being approved.  

However, the timing above resulted in a gap in billing privileges between September 3, 2024 and February 16, 2025….

* * *

As every effort was made to respond to all requests for revalidation, I request that the gap in billing privileges for the provider be removed and that revalidation is effective with no gap in time. 

The provider has continued to provide services to Medicare patients despite not being paid because she is very dedicated to the care of her patients.  

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Id. at 2. 

While I acknowledge Petitioner’s argument, I have no authority to review WPS’s deactivation of Petitioner’s Medicare billing privileges.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6 (2019); Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); Ark. Health Grp. d/b/a Baptist Health Family Clinic Lakewood, DAB No. 2929 at 7-9 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).  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 is not clear from the record whether Petitioner sought relief from WPS through this rebuttal process.  However, 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). 

Nor may I direct the contractor to allow retrospective reimbursement during the gap in billing privileges from September 3, 2024 through February 16, 2025.  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 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 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

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requirements); UpturnCare Co., d/b/a Accessible Home Health Care, DAB No. 2632 at 19 (2015) (providing the Board may not overturn the denial of provider enrollment in Medicare on equitable grounds). While I am mindful and sympathetic to the fact that Petitioner’s practice has suffered a significant loss of income while rendering services to the Medicare program, I have no authority under the law to revise the effective date of reactivation determined by CMS based on Petitioner’s losses. 

VI. Conclusion

I affirm CMS’s decision that the effective date of Petitioner’s Medicare enrollment and billing privilege is February 17, 2025. 

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).