Duane Ellsworth, DO and Genuine Anesthesia Services, PLLC, DAB CR6863 (2026)

DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner Genuine Anesthesia Services, PLLC (Petitioner Genuine)1 and the reassignment of benefits from

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Petitioner Duane Ellsworth, DO (Petitioner Ellsworth) to Petitioner Genuine is January 8, 2025, with retrospective billing privileges beginning December 9, 2024.

I.  Procedural History and Findings of Fact

On September 20, 2024, Noridian Healthcare Solutions, a Medicare administrative contractor (MAC), received a Medicare enrollment application, from Petitioner Ellsworth to add, delete, or change his Medicare enrollment information.  The application was completed to update and add practice locations, including Petitioner Genuine, and to add Petitioner Genuine to receive reassignment of Petitioner Ellsworth's right to bill and receive payment from Medicare for care and services provided to Medicare beneficiaries.  CMS Ex. 1 at 16-26; CMS Ex. 2.

The MAC informed Petitioner Ellsworth by letter dated November 5, 2024, that the September 20, 2024 application was rejected.  The MAC states in its letter it rejected the application because Petitioner Ellsworth failed to submit required information.  CMS Ex. 1 at 29-30; CMS Ex. 4.

On November 21, 2024, the MAC received a second application from Petitioner Ellsworth.  The application was completed listing Petitioner Genuine as a practice location, but reassignment information was not provided.  CMS Ex. 1 at 31-37; CMS Ex. 5.

The MAC informed Petitioner Ellsworth by letter dated January 7, 2025, that the November 21, 2024 application was rejected because Petitioner Ellsworth failed to submit required information.  CMS Ex. 1 at 50-51; CMS Ex. 11.

On January 8, 2025, the MAC received an application to enroll Petitioner Genuine in Medicare.  Petitioner Ellsworth was listed as Petitioner Genuine's owner, authorized official, and managing employee.  The application also reported the reassignment by Petitioner Ellsworth to Petitioner Genuine.  CMS Ex. 1 at 52-62; CMS Ex. 12.

On January 31, 2025, the MAC informed Petitioners that the January 8, 2025 application was approved with billing privileges effective December 9, 2024.  CMS Ex. 1 at 63-66; CMS Ex. 13.

Petitioner Ellsworth requested a reconsidered determination of the effective dates for Petitioners by letter dated February 11, 2025.  Petitioners requested billing privileges effective June 3, 2024.  CMS Ex. 1 at 9, 14-15; CMS Exs. 14-15.

A MAC hearing officer issued a reconsidered determination addressed to Petitioner Ellsworth (CMS Ex. 1 at 1-8) and a reconsidered determination addressed to Petitioner Genuine (Ct. Ex. 1 (DAB E-File # 1b)).  The letters are substantively the same.  The

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MAC hearing officer concluded that Petitioners were granted the earliest possible effective date of billing privileges of December 9, 2024, and the request to grant an effective date of June 3, 2024, could not be granted.  CMS Ex. 1 at 5-6; Ct. Ex. 1 at 5-6.  The hearing officer erred in characterizing December 9, 2024, as the effective date of billing privileges.  The correct effective date was January 8, 2025, the date the application processed to approval was received by the MAC; and December 9, 2024, was the earliest date for retrospective billing.  42 C.F.R. §§ 424.520(d), 424.521(a).  However, the error was a harmless mischaracterization of the dates with no impact on the application of the regulations or the outcome required by the regulations.

On June 26, 2025, Petitioner Ellsworth filed a request for hearing before an administrative law judge (ALJ) on behalf of both Petitioners.

CMS filed a combined prehearing brief and motion for summary judgment on July 28, 2025, with CMS Exs. 1 through 15.  Petitioners filed a prehearing brief (P. Br.) opposing the CMS motion for summary judgment and waiving an oral hearing on September 10, 2025, with Petitioner's exhibits (P. Exs.) 1 through 7.  CMS waived filing a reply brief on September 24, 2025.

No objections have been made to my consideration of CMS Exs. 1 through 15 or P. Exs. 1 through 7 and all are admitted as evidence.  Ct. Ex. 1 is marked but not admitted and is only considered to aid identification of the parties.

II.  Discussion

A.  Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.2  Act

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§§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).

The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).

Pursuant to 42 C.F.R. § 424.505,3 a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.  The Medicare beneficiary, one who is entitled to benefits under Medicare Part A or enrolled under Part B, is the individual covered by Medicare and entitled to request payment for Medicare-covered health care items and services.  Act § 1802.  The assignment of the right to file a claim for Medicare coverage from a Medicare beneficiary to a Medicare-enrolled provider or supplier is limited.  The reassignment of the right to file a Medicare claim from an enrolled provider or supplier to another is very limited.  42 C.F.R. pt. 424, subpt. F.  Reassignment to an employer is permitted from a supplier, such as a physician or nonphysician practitioner when reassignment is required as a condition of employment.  42 C.F.R. § 424.80(b)(1).  Reassignment to an entity that bills for a supplier's services pursuant to a contractual arrangement is also permitted.  42 C.F.R. § 424.80(b)(2) and (5).  In this case, the MAC approved the reassignment from Petitioner

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Ellsworth to Petitioner Genuine, Petitioner Ellsworth's practice group, effective the date of enrollment of Petitioner Genuine.  CMS Ex. 1 at 5-6, 63-66; CMS Exs. 12-13; Ct. Ex. 1 at 5-6.  Pursuant to 42 C.F.R. § 424.522(a), a reassignment of benefits may be effective for as many as 30 days before the MAC received the reassignment application, if all applicable requirements were met.  86 Fed. Reg. 62,240, 62,419 (Nov. 9, 2021).  In this case, the reassignment could not occur until Petitioner Genuine was enrolled in Medicare with billing privileges.

The effective date of enrollment in Medicare of physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations, such as Petitioners, is governed by 42 C.F.R. § 424.520(d).  The effective date of enrollment for physicians, nonphysician practitioners, or physician and nonphysician practice groups may only be the later of two dates:  (1) the date of receipt of the application for enrollment that was subsequently approved by a MAC charged with reviewing the application on behalf of CMS; or (2) the date when the physicians, nonphysician practitioners, or physician and nonphysician practice groups first began providing services at a new practice location.  42 C.F.R. § 424.520(d)(1).  The date of filing of an enrollment application is the date on which the Medicare contractor receives a signed enrollment application that the MAC can process to approval.  42 C.F.R. § 424.520(d)(1)(i); 73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Alexander C. Gatzimos, MD, JD, LLC d/b/a Michiana Adult Medical Specialists, DAB No. 2730 at 1 (2016).  The burden is on Petitioners, not the government, to demonstrate that the MAC or CMS received the requisite enrollment forms, and that Petitioners met all enrollment requirements.  42 C.F.R. § 424.545(c).

An enrolled physician, nonphysician practitioner, or a physician or nonphysician group may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided.  Retrospective billing for up to 90 days prior to the effective date of enrollment is permitted only in case of a Presidentially-declared disaster pursuant to 42 U.S.C. §§ 5121-5207.  42 C.F.R. § 424.521(a)(1).

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to section 1866(h)(1) and (j)(8), a provider or supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and judicial review.  Pursuant to 42 C.F.R. § 498.3(b)(15), a provider or supplier's effective date of enrollment is an initial determination that is subject to administrative review by an ALJ after a reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2).  The regulations at 42 C.F.R. §§ 424.545 and 498.5 specify review and appeal rights in provider and supplier cases.  The regulations do not specifically state that a supplier has a right to ALJ review of CMS or MAC determinations related to reassignment of the right to file claims with and receive payment from Medicare, including the effective date of reassignment.  42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5.  The Board has given an expansive

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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; the effective date of the reactivation of billing privileges; and the effective date of the reassignment of the right to file claims with and receive payment from Medicare.  See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Group 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); Gaurav Lakhanpal, MD, DAB No. 2951 (2019) (upholding ALJ review of challenge to effective date of reassignment).  An ALJ does not review the initial determination of the MAC, as the only determination subject to review is the reconsidered determination.  See 42 C.F.R. § 498.5(l)(1)-(2); Neb Group of Ariz. LLC, DAB No. 2573 at 7.  Appeal and review rights are specified by 42 C.F.R. § 498.5.

B.  Issues

Whether Petitioner Genuine's effective date for Medicare enrollment and billing privileges is January 8, 2025, with retrospective billing privileges beginning December 9, 2024.

Whether the reassignment of benefits by Petitioner Ellsworth to Petitioner Genuine was effective January 8, 2025.

C.  Findings of Fact, Conclusions of Law and Analysis

My conclusions of law are set forth in bold followed by my findings of fact and analysis.

1.  Petitioner waived an oral hearing and requested a decision on the written record.

CMS requests summary judgment.  Petitioner opposes summary judgment but waived the right to an oral hearing as permitted by 42 C.F.R. § 498.66.4  P. Br. at 7.  The waiver of oral hearing is accepted as disposition on the documents is appropriate.

2.  Pursuant to 42 C.F.R. § 424.520(d), the effective date of Medicare enrollment and billing privileges of Petitioner Genuine is January 8, 2025, the date of receipt by the MAC of a Medicare enrollment application that the MAC processed to approval.

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3.  Pursuant to 42 C.F.R. § 424.521(a)(1), Petitioners are authorized to retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, that is, beginning on December 9, 2024.

4.  Pursuant to 42 C.F.R. § 424.522(a), Petitioner Ellsworth reassigned his Medicare claims to Petitioner Genuine, effective January 8, 2025, the effective date of Medicare enrollment of Petitioner Genuine.

5.  No equitable relief is available in this forum.

The regulations controlling the effective date of enrollment of physicians, nonphysician practitioners, and physician or nonphysician organizations (practice groups) are clear and the controlling law.  The effective date of enrollment in Medicare of physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d).  The effective date of enrollment and billing privileges for a physician or nonphysician practitioner or a physician or nonphysician organization may only be the later of two dates:  (1) the date when the physician, nonphysician practitioner, or group filed an application for enrollment that was subsequently approved by a MAC charged with reviewing the application on behalf of CMS; or (2) the date when the physician first began providing services at a new practice location.  42 C.F.R. § 424.520(d).  The regulation grants no discretion to the MAC, CMS, the Board, or me to pick a date other than the one of the two dates specified in the regulation.

The date of filing of an enrollment application is the date on which the Medicare contractor receives a signed enrollment application that the MAC can process to approval.  42 C.F.R. § 424.520(d)(1); 73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 1.  The burden is on Petitioners, not the government, to demonstrate that the MAC or CMS received the requisite enrollment forms, and that Petitioners met all enrollment requirements.  42 C.F.R. § 424.545(c).

In the absence of a Presidentially-declared disaster, an enrolled physician or nonphysician practitioner may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided.  42 C.F.R. § 424.521(a)(1).  There is no evidence of any Presidentially-declared disaster that might impact this case.

Applying the law to the undisputed facts is not complicated.

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Petitioners filed a Medicare enrollment application on September 20, 2024.  The application was rejected by the MAC on November 5, 2024.  Petitioners filed a second Medicare enrollment application on November 21, 2024.  The second application was rejected by the MAC on January 7, 2025.

The MAC's rejections of the September 20 and November 21, 2024, applications are not subject to my review.  42 C.F.R. § 424.525(d).  Therefore, Petitioners' arguments that the applications were improperly rejected must be resolved against Petitioners as matters of law as I cannot review those determinations or grant Petitioners any relief related to the rejections.

Petitioners filed a Medicare enrollment application on January 8, 2025, and that application was processed to approval by the MAC.  Pursuant to 42 C.F.R. § 424.520(d), the effective date for a physician or physician organization is the later of either the date of filing of the Medicare enrollment application that was approved by the MAC or the date the applicant first began providing services at a new location.  Petitioners argue that services were first provided on about June 3, 2024.  Petitioners argue in the alternative that the 30-day period for retrospective billing should begin no later than August 21, 2024 – 30 days before the filing of the September 20, 2024 enrollment application.  However, January 8, 2025, the date on which the Medicare enrollment application was filed that was processed to approval by the MAC, is later than June 3, 2024 or August 21, 2024.  Therefore, under 42 C.F.R. § 424.520(d) the effective date of Petitioner Genuine's Medicare enrollment can be no earlier than January 8, 2025.

Pursuant to 42 C.F.R. § 424.522(a), a reassignment of benefits may be effective for as many as 30 days before the MAC received the reassignment application, if all applicable requirements were met.  86 Fed. Reg. 62,240, 62,419 (Nov. 9, 2021).  In this case, the reassignment could not occur until Petitioner Genuine was enrolled in Medicare with billing privileges.  42 C.F.R. § 424.80.  Therefore, the date of the reassignment by Petitioner Ellsworth to Petitioner Genuine could be no earlier than January 8, 2025.

Petitioners raise several arguments that are without merit.

Petitioners' arguments that the MAC erred in treating Petitioners as new enrollees, and not as simply updating enrollment information is unsupported by the facts and the law.  Petitioner Ellsworth admits that he was enrolled in Medicare with another physician organization and (though not specifically stated) likely with a reassignment to that organization.  According to Petitioner Ellsworth on June 3, 2024, he formed his solely owned physician organization, Petitioner Genuine.  Petitioner Ellsworth asserts he only filed the September 20, 2024 application to update existing enrollment information and not to initially enroll in Medicare.  P. Br. at 1-5.  The requirement for physicians and physician organizations to update their Medicare enrollment information is in 42 C.F.R. § 424.516(d).  But the facts show that Petitioner Ellsworth was not simply trying to

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update his Medicare enrollment information.  Rather he was attempting to initially enroll his new physician organization, Petitioner Genuine, so that he could make a new reassignment to Petitioner Genuine of his right to file claims and receive payment from Medicare.  Petitioners' argument that the goal was simply to update Petitioner Ellsworth's Medicare enrollment information ignores the facts and the different regulations applicable to enrollment information updates and those applicable to enrolling a new physician organization and starting a new reassignment to that organization.  Petitioners cite the decision of an ALJ in Nicola Pike, D.P.M., DAB CR2363 at 8 (2011).  But the Pike case involved the question of when an application was received by the MAC for purposes of determining an effective date of enrollment.  The Pike decision did not, contrary to Petitioners' implication, address the difference between a Medicare application submitted to update enrollment information, which may have no impact on an effective date of enrollment or reassignment, and an application submitted for purposes of initially enrolling a new physician organization and establishing a new reassignment to that new organization.  Hence, the Pike decision is inapposite.

Petitioners argue that Petitioner Ellsworth acted in good faith but the rejections of the September 20 and November 21, 2024 applications were based on errors by the MAC staff or lack of clarity in their guidance to Petitioner Ellsworth and his billing firm that was handling the rejected applications.  P. Br. at 2-5.  But as already explained, Petitioner has no right to review and ALJs have no authority to review a rejection of an enrollment application by the MAC.  42 C.F.R. § 424.520(d).

Petitioners' arguments could be construed to be that CMS should be estopped from denying Petitioners billing privileges based on the September 20 or November 21, 2024 applications.  But an estoppel argument must be rejected.  Estoppel against the federal government, if available at all, is presumably unavailable absent "affirmative misconduct," such as fraud, and there is no evidence that any CMS or MAC official intentionally misled Petitioners in any respect.  P. Exs. 1-7.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).

Petitioners argue that equity requires that Petitioners be granted billing privileges with a retrospective effective date of June 3, 2024.  P. Br. at 5.  But I have no authority to fashion equitable relief or depart from the limits on my review authorized by the Act and regulations.  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).  The Board stated in Sentinel Medical Laboratories, Inc.,

It is well established that administrative forums, such as this Board and the Department's ALJs, do not have the authority to ignore unambiguous statutes or regulations on the basis

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that they are unconstitutional.  A legislative rule is binding on the agency that issues it.  1 Kenneth Culp Davis and Richard J. Pierce, Jr., Administrative Law Treatise, § 6.5 (3rd ed. 1994), citing U.S. v. Nixon, 418 U.S. 683 (1974) (where the court noted that the executive branch was bound by the terms of a regulation it had issued, even though it was within its power to change that regulation).  Federal courts have refused "to recognize in administrative officers any inherent power to nullify legislative [or executive] enactments because of personal belief that they contravene the [C]onstitution." Gibas v. Saginaw Mining Co., 748 F.2d 1112, at 1117 (6th Cir. 1984) (citation omitted).  Thus, courts have noted that challenges to the constitutionality of an agency regulation lie outside the cognizance of that agency, and that generally, an ALJ is bound by the regulations promulgated by his administrative agency.  Howard v. FAA, 17 F.3d 1213, 1218 (9th Cir. 1994); Stieberger v. Heckler, 615 F. Supp. 1315, 1386 (S.D.N.Y. 1985), citing D'Amico v. Schweiker, 698 F.2d 903 (7th Cir. 1983).

Sentinel Med. Labs., Inc., DAB No. 1762 at 9 (2001), aff'd sub nom., Teitelbaum v. Health Care Fin. Admin., 32 F. App'x 865 (9th Cir. 2002).

III.  Conclusion

For the foregoing reasons, the effective date of enrollment and billing privileges of Petitioner Genuine is January 8, 2025, with retrospective billing privileges beginning December 9, 2024.  Petitioner Ellsworth reassigned his right to file claims with Medicare to Petitioner Genuine effective January 8, 2025.