Amherst Psychiatric Associates, LLC, DAB, CR6889 (2026)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a Medicare administrative contractor, determined that the effective date for the reactivation of Medicare billing privileges for Amherst Psychiatric Associates, LLC (Amherst or Petitioner) was August 14, 2024.  Petitioner requested a hearing before an administrative law judge (ALJ) to challenge this effective date.  Because the administrative contractor approved Amherst’s revalidation enrollment application that was received on August 14, 2024, the earliest possible effective date for Amherst’s reactivation is August 14, 2024.  As explained below, I find that CMS properly determined August 14, 2024 as the effective date for Petitioner’s Medicare reactivation.

I.     Background and Procedural History

Amherst is a group practice doing business in Amherst, Massachusetts.  CMS Ex. 4.  In December 2023, National Government Services (NGS), a Medicare administrative contractor, notified Amherst that it was required to revalidate its Medicare enrollment record.  CMS. Ex. 1.  The letter warned that, if the required information was not received, “we may stop your Medicare billing privileges” and a gap in reimbursement could result.

Page 2

Id. at 1.  On April 29, 2024, NGS issued another notice to Amherst that payments on its Medicare claims were being held due to its failure to revalidate its enrollment record. CMS Ex. 2.  NGS warned that a failure to respond to the notice would result in the deactivation of Amherst’s enrollment and would result in a gap in Amherst’s reimbursement.  Id.  In a May 8, 2024 notice, NGS informed Amherst that its billing privileges were deactivated effective May 3, 2024 due to its failure to timely revalidate its enrollment record.  CMS Ex. 3.

On August 14, 2024, NGS received Amherst’s revalidation application.  CMS Ex. 4.  On August 29, 2024, Petitioner resubmitted its application with certain corrections.  CMS Ex. 5.  NGS issued another notice to Amherst on August 30, 2024, which approved its reactivation enrollment application with an effective date of August 14, 2024.  CMS Ex. 6.  The notice informed Amherst of its gap in billing privileges.  Id.  Petitioner timely submitted a reconsideration request on September 23, 2024.  CMS Ex. 7.  Petitioner’s reconsideration request explained that it needed time to obtain the documentation required and that despite the “arduous” process, Petitioner continued to provide care to its patients.  Id.

NGS issued an unfavorable reconsidered determination upholding the initial determination with an effective date of August 14, 2024 for Amherst’s billing privileges.  CMS Ex. 9.  Petitioner timely filed a request for hearing (RH) to challenge the reconsidered determination.  On December 12, 2024, I issued an Acknowledgment and Pre-Hearing Order, which established a submission schedule for pre-hearing exchanges.  In response CMS filed a pre-hearing exchange with incorporated brief in support of summary judgment (CMS Br.) and nine exhibits (CMS Exs. 1-9).  Petitioner submitted a letter (P. Br.).  CMS submitted a response indicating that it declined to file a rebuttal or response to Petitioner’s pre-hearing exchange.

II.     Admission of Evidence and Decision on the Written Record

Petitioner did not object to any of CMS’s proposed exhibits.  I therefore admit CMS Exs. 1-9 into the record.  Standing Pre-hearing Order ¶ 10; CRD Procedures § 14(e).

The Standing Pre-hearing Order advised the parties that an in-person hearing would only be held if a party submitted the written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine a witness.  Standing Prehearing Order ¶¶ 11-14; CRD Procedures §§ 16(b), 19(b); 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 written direct testimony.  Therefore, an in-person hearing is not required.  Standing  Pre-hearing Order ¶ 14; CRD Procedures § 19(d).  There is also

Page 3

no need for me to address the legal criteria for summary judgment; I find that this case is ripe for adjudication based on the written record.

III.     Issue

Whether CMS had a legitimate basis to assign August 14, 2024, as the effective date for reactivation of Amherst’s Medicare billing privileges.

IV.     Jurisdiction

I have jurisdiction to hear and decide this case. 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

V.     Findings of Fact, Conclusions of Law, and Analysis

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  42 U.S.C. §§ 1302, 1395cc(j).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act. 42 U.S.C. § 1395x(d); see also 42 U.S.C. § 1395x(u).

Petitioner, a supplier in the Medicare program, was required to enroll to receive payment for covered Medicare items or services.  42 C.F.R.§  424.505.  A provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  42 C.F.R. § 424.510(a).  CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may allow limited retrospective billing under 42 C.F.R. § 424.521.

After the initial enrollment, providers and suppliers must revalidate their enrollment information at least every five years to maintain Medicare billing privileges.  42 C.F.R. § 424.515.  However, CMS reserves the right to require revalidation at any time.  Id.  Upon notification from CMS that it is time to revalidate, providers and suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2).

CMS can deactivate an enrolled provider or supplier’s Medicare billing privileges if the enrollee fails to comply with revalidation requirements.  42 C.F.R. § 424.540(a)(3).  When CMS deactivates a provider’s or 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).  If CMS deactivates a provider or supplier’s billing privileges due to an untimely response to a revalidation request, the

Page 4

enrolled provider or supplier may apply for CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file.  42 C.F.R. § 424.540(b)(1).

1. On August 14, 2024, the CMS administrative contractor received Petitioner’s enrollment application, which the CMS administrative contractor ultimately approved. 1

NGS received Amherst’s revalidation application on August 14, 2024.  CMS Ex. 4.  After Amherst corrected certain information in a revalidation application subsequently submitted on August 29, 2024, NGS approved Amherst’s application and reactivated its Medicare billing privileges, effective August 14, 2024.  CMS Exs. 5-6.

2. The effective date for Petitioner’s Medicare billing privileges is August 14, 2024.

In the instant case, NGS properly determined that Amherst’s effective date for reactivation of its Medicare billing privileges is August 14, 2024, because that is the date NGS received Amherst’s revalidation application that NGS ultimately approved.  Petitioner does not dispute the date NGS received the application.  Therefore, pursuant to 42 C.F.R. § 424.540(d)(2), the date NGS received Amherst’s subsequently-approved enrollment application, August 14, 2024, is the correct reactivation effective date of enrollment. 

3. I do not have the authority to review the deactivation of Petitioner’s billing privileges and I am unable to grant equitable relief.

Petitioner asserts that there were “unmitigated circumstances” that were challenging for the practice during the time period of the revalidation application and that the loss of three months of income has had a “resounding impact.”  RH.  Amherst did not have access to certain forms that it was required to submit electronically and had to seek assistance from an elected official to locate information for the application.  Id.  Amherst submitted a detailed timeline of its efforts to submit its application.  P. Br.  Additionally, Amherst had some staff turnover during this time.  Id.  Also, the sole owner, authorized official, and managing employee of Amherst suffered the death of his spouse.  Id.  Petitioner requests that the “validation date” be backdated to May 3, 2024.  Id.

Unfortunately, these arguments amount to a request for equitable relief, which I do not have the authority to grant.  US Ultrasound, DAB No. 2302 at 8 (2010).  While I sympathize with Amherst’s challenges and the owner’s loss, I do not have the authority

Page 5

to grant an earlier effective date based on equitable or policy arguments.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6, 9 (2019); Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); Ark. Health Grp., DAB No. 2929 at 7-9 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).

Additionally, I do not have the authority to review whether deactivation was proper nor to order retrospective reimbursement for services Amherst provided during the period of deactivation.  Jeffrey E. McIlroy, MD, Inc., DAB No. 3143 at 3-4 (2024); Tosan Fregene, MD and Oncology Clinics, Inc., DAB No. 3018 at 3 (2020); see 42 C.F.R. § 498.3(b) (defining “initial determinations” that are subject to review by an ALJ and the Departmental Appeals Board).  Deactivation is not an initial determination, and deactivation decisions have a separate review process involving the submission of a rebuttal to CMS. See 42 C.F.R. §§ 424.545(b), 498.3(b); see also Willie Goffney Jr., M.D., DAB No. 2763 at 4-5 (2017).  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 nonadherence 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 (2022).

VI.     Conclusion

Because the Medicare administrative contractor received Petitioner’s reactivation application on August 14, 2024, that is the effective date of Petitioner’s Medicare enrollment and billing privileges.  I may not review the Medicare administrative contractor’s deactivation and retrospective  reimbursement is not available for suppliers whose enrollment has been deactivated.  Therefore, I affirm CMS’s determination.