Joe Kilianski, M.D., DAB CR6903 (2026)

DECISION

Petitioner, Joe Kilianski, M.D., challenges the determination of the effective date of the reassignment of his Medicare billing privileges by Respondent, the Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor, Novitas Solutions (Novitas).  As explained herein, I find in favor of CMS but modify its effective date determination.

I. Background

On September 29, 2023, Petitioner electronically filed a CMS Form 855R to reassign his Medicare billing privileges to his former employer, Rob Dickerman, D.O.1   CMS Ex. 1 at 1-3.  On October 17, 2023, Novitas approved Petitioner’s reassignment application and assigned him an individual Provider Transaction Access Number (PTAN), 6B2807.

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CMS Ex. 2 at 1.  Novitas advised Petitioner his reassignment for billing services under this PTAN became effective July 1, 2023.2   Id.

Petitioner sought reconsideration of Novitas’s determination on October 23, 2023, explaining he needed an earlier effective date to allow NeuroTexas to bill for the services he provided to Medicare beneficiaries there since September 2022.  CMS Ex. 3 at 1-2.  Novitas denied Petitioner’s reconsideration request on December 5, 2023, confirming September 29, 2023 to be his effective date of reassignment and July 1, 2023 to be his retrospective billing date.  CMS Ex. 4 at 2-3; see 42 C.F.R. §§ 424.520(d), 424.521(a)(1).

Petitioner timely filed a request for hearing in the Civil Remedies Division, resulting in the designation of the Honorable Jacinta Alves to hear and decide this case.  On February 2, 2024, she issued a Standing Order requiring the parties to file arguments and supporting documents by dates certain.  Standing Order at 3.  CMS timely filed its Pre-Hearing Brief and Motion for Summary Judgment (CMS Br.) and five proposed exhibits (CMS Exs. 1-5).  Petitioner timely filed a response in opposition to CMS’s motion for summary judgment and cross-motion for summary judgment (P. Br.) with four proposed exhibits (P. Exs. 1-4).  CMS filed a Reply and Objections.  On December 29, 2025, this matter was transferred to me for adjudication.

II. Admission of Exhibits

Petitioner did not object to CMS’s proposed exhibits.  CMS objects to pages 20 to 26 of Petitioner’s Request for Hearing, pages 23 to 29 of Petitioner’s Pre-hearing Brief, pages 24 to 30 of Petitioner’s Pre-hearing Exchange; (4) pages 20 to 26 of Petitioner Exhibit 2; and (5) Petitioner Exhibit 4.  CMS Obj. at 1.  CMS asserts exclusion of these exhibits or portions thereof is appropriate because Petitioner did not submit them at the initial or reconsidered levels of determination.  Id., citing 42 C.F.R. §§ 405.803(a), 498.56(e).

CMS’s objection to portions of Petitioner’s hearing request is overruled as it is not a proposed exhibit.  CMS’s objections to portions of Petitioner Exhibit 2 and what Petitioner confusingly labeled his “Prehearing Exchange” are overruled as to the basis cited by CMS for exclusion.  However, I exclude these documents in their entirety for failure to comply with Judge Alves’s Standing Order.  Petitioner’s pre-hearing brief simply “incorporates its factual evidence and positions and arguments set forth” in his hearing request.  P. Br. at 2.  He then submitted his hearing request with appended documents in its entirety as Petitioner Exhibit 2 and again in his “Prehearing Exchange.”  See P. Prehearing Exchange at 3-39.  But Judge Alves set forth clear parameters for the submission of evidence as proposed exhibits.  Standing Order at 3-4, 5-6.  Relevant here,

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she advised the parties that “[e]ach document should be filed as a separate exhibit and uploaded as a separate exhibit in the DAB E-File system.  Multiple documents shall not be submitted as a single exhibit.”  Id. at 5.

Petitioner nevertheless thought it appropriate to refer to his hearing request for the arguments he wishes to make and the evidence he wishes to cite, appended to his appeal as nine exhibits combined into one attachment, none of which are correctly labeled or paginated.  He then submitted the same noncompliant omnibus document twice more, only once as a proposed exhibit, and at no time correctly.  Petitioner’s counsel, who I assume is capable of reading and following orders, opted to present one of the most disordered and noncompliant pre-hearing exchanges in recent memory.  I decline to accommodate this haphazard submission of evidence.

Judge Alves’s Standing Order does not prohibit referencing or adopting arguments made in earlier pleadings.  I have therefore considered the arguments Petitioner incorporated by reference from his hearing request and duplicated elsewhere.  This approach is not anticipated or ideal, since Petitioner cannot respond to the arguments CMS made in its opening brief, but it is not strictly prohibited.

CMS’s objection to Petitioner Exhibit 4, which contains a printout of Petitioner’s enrollment record from CMS’s electronic enrollment system, is overruled.  42 C.F.R. § 498.56(e) requires a provider or supplier challenging an enrollment determination by CMS to show good cause for presenting “new documentary evidence” to an ALJ that was not presented in underlying proceedings.  These records are not “new.”  CMS and its contractor had control and possession of Petitioner’s enrollment record during all phases of his appeal.  They presumably reviewed his enrollment record at the initial and reconsidered levels to render their determinations.  CMS can hardly claim records it generated, controlled, and necessarily reviewed in the underlying proceedings are now “new documentary evidence” within the meaning of 42 C.F.R. § 498.56(e).

For the foregoing reasons, I admit CMS Exhibits 1 through 19 and Petitioner Exhibits 1 and 4 into evidence.  I have not stricken Petitioner’s “Prehearing Exchange” as it was not proffered as an exhibit.  However, I have not considered the documentary evidence embedded therein.

III. Decision on the Record

Neither party offered written direct testimony of a witness as part of its pre-hearing exchange or sought to cross-examine a witness identified by the opposing party.  Accordingly, I determine an in-person hearing is not necessary in this matter.  Standing Order at 9; Civ. Remedies Div. P. §§ 16(b), 19(b).  I decide this case on the record based on the parties’ written submissions and arguments.  Civ. Remedies Div. P. § 19(d).  The parties’ motions for summary judgment are denied as moot.

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IV. Issue

Whether Novitas, acting on behalf of CMS, properly determined the effective date of Petitioner’s reassignment of his Medicare billing privileges.

V. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

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

A. Applicable Law

Petitioner participates in the Medicare program as a “supplier” of services.  42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, Supplier, 498.2, Supplier.  To receive Medicare payments for services furnished 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, Enroll/Enrollment.  To enroll, a prospective supplier must submit an enrollment application, meaning a paper application approved by CMS or an electronic enrollment process approved by the Office of Management & Budget.  Id., Enrollment application.

1. Effective date of enrollment

The effective date for a supplier’s ability to bill the Medicare program for services rendered to program beneficiaries is “the later of the date of filing” of a subsequently approved enrollment application or “the date that the 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 can process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).  After CMS establishes an effective date for billing it may permit retrospective billing pursuant to 42 C.F.R. § 424.521(a).3

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2. Effective date of reassignment

A Medicare beneficiary may assign the right to receive Medicare Part B benefits for covered medical services to an enrolled supplier who delivers those services.  42 U.S.C. § 1395u(b)(3)(B)(ii); 42 C.F.R. § 424.55.  In certain circumstances, a supplier who has received an assignment of benefits may reassign those benefits to an employer or an individual or entity with which the supplier has a contractual arrangement.  42 U.S.C. § 1395u(b)(6); 42 C.F.R. § 424.80(b)(1)-(2).  To reassign Medicare benefits, a supplier must submit and obtain CMS’s approval of a reassignment application. Gaurav Lakhanpal, MD, DAB No. 2951 at 1-2 (2019) (citing 71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006)).

Before January 1, 2022, CMS applied the effective date rules for enrollment set forth at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to the reassignment of Medicare benefits as a matter of sub-regulatory policy.  See Medicare Program Integrity Manual (MPIM) (CMS Pub. 100-08) §§ 15.5.20(E)(3), 15.17.  In 2021, CMS published a rule codified at 42 C.F.R. § 424.522 providing that as of January 1, 2022, reassignment would become effective 30 days before the date a supplier submitted a reassignment application, assuming “all applicable requirements during that period were otherwise met.”  86 Fed. Reg. 62,240, 62,419 (Nov. 19, 2021).

CMS modified that regulation in December 2025 to enshrine its prior approach so that as of January 1, 2026, the effective date of reassignment would be the later of the dates identified at 42 C.F.R. § 424.520(d)(i) and (ii).  42 C.F.R. § 424.522(a)(1); 90 Fed. Reg. 55,342, 55,617 (Dec. 2, 2025).  CMS also specified that reassignments would receive retrospective billing in the same manner set forth at 42 C.F.R. § 424.521(a)(1) for enrollment applications.  42 C.F.R. § 424.522(a)(2).

B. Analysis

1. Novitas applied the wrong regulation to establish the effective date of Petitioner’s reassignment of Medicare billing privileges.  The correct effective date is August 30, 2023, with retrospective billing permitted from June 1, 2023.

On September 29, 2023, Petitioner electronically submitted a CMS Form 855R application to reassign his billing privileges that Novitas subsequently processed to approval.  CMS Ex. 1 at 1; CMS Ex. 4 at 2.  The record before me does not reflect receipt of an earlier reassignment application Novitas subsequently approved.  Petitioner does not dispute these facts but argues CMS had no regulatory basis to apply the effective date rule for enrollment applications from 42 C.F.R. § 424.520(d)(1) to a reassignment application.  P. Hearing Req. at 4.

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Petitioner is correct, but not for the reasons he cites.  The regulation in effect at the time of Petitioner’s reassignment application established the effective date of reassignment to be 30 days prior to the date a reassignment application is submitted.  42 C.F.R. § 424.522(a).  Petitioner submitted his reassignment application on September 29, 2023.  CMS Ex. 1 at 1-3.  The correct effective date of reassignment for Petitioner’s billing privileges is August 30, 2023.

The version of 42 C.F.R. § 424.522(a) in effect at the time Petitioner applied for reassignment did not explicitly incorporate 42 C.F.R. § 424.521(a)’s retrospective billing provision.  See 86 Fed. Reg. 62,419.  But Novitas applied 90 days of retrospective billing in its initial determination and confirmed that application in its reconsidered determination.  CMS Ex. 2 at 1; CMS Ex. 4 at 2-3.  Before me, CMS does not dispute the propriety of its contractor’s application of retrospective billing to Petitioner’s reassignment application.  See CMS Br.

It is unclear whether the version of 42 C.F.R. § 424.522(a) in effect during Petitioner’s reassignment application permitted retrospective billing.  But I need not reach this issue because I do not have discretion to determine the propriety of retrospective billing.  See Farzana Naqvi, M.D. and Syed Naqvi, M.D., DAB No. 3016 at 9 (2020) (holding an ALJ improperly considered the propriety of applying retrospective billing because that issue “was not addressed by the parties, not developed on the record, and not properly before the ALJ.”).  I therefore decline to disturb Novitas’s exercise of discretion and apply the same period of retrospective billing CMS, acting through its contractor and directly before me, has deemed appropriate.

2. Petitioner seeks equitable relief I cannot provide.

Petitioner contends CMS and Novitas misread 42 C.F.R. § 424.520(d)(1) to tie the effective date of reassignment to the date he submitted a reassignment application.  P. Req. for Hearing at 4.  Petitioner reasons the regulation does not treat reassignment applications differently from initial enrollment applications, meaning he is entitled to have an effective date that is the later of the date he began furnishing services at a new practice location (September 1, 2022) or the date of filing of his Medicare enrollment application (an unspecified date in 2015).  Id. at 5.  But as I have explained, Petitioner relies on the wrong regulation.  The regulation governing reassignment applications in effect at the time he sought reassignment established the effective date of reassignment to be 30 days prior to the application date.  See 86 Fed. Reg. 62,419.  Petitioner’s effective date of reassignment cannot be earlier than August 30, 2023.

Petitioner relatedly argues his prior employer, NeuroTexas, is entitled to payment for the services for the services he rendered.  P. Req. for Hearing at 5.  It is not clear from the record that NeuroTexas had any authority to bill or collect payment on Petitioner’s behalf, absent a valid reassignment of benefits that did not occur until September 2023.

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Even if it did, CMS correctly points out that Petitioner has no right to challenge nonpayment by the Medicare program to NeuroTexas.4  CMS Br. at 5-6, citing 42 C.F.R. § 498.5.

Finally, Petitioner argues it would be “grossly unfair” if he did not receive compensation for the work he performed from September 2022 to May 2023.  P. Req. for Hearing at 1.  Assuming Petitioner did not receive compensation from NeuroTexas as its employee during that period, I am sympathetic to his situation.  But I have no authority to grant him equitable relief.  See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the [Administrative Law Judge] (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 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).

My jurisdiction is limited to review of CMS’s determination of the effective date of Petitioner’s reassignment application.  As I have explained, the correct effective date for Petitioner’s reassignment to NeuroTexas is August 30, 2023, with 90 days of retrospective billing as applied by Novitas.

VII. Conclusion

I modify the effective date for reassignment of Petitioner’s Medicare billing privileges from September 20, 2023 to August 30, 2023.  Applying Novitas’s 90-day grant of retrospective billing, Petitioner is entitled to bill retrospectively from June 1, 2023.