Ohio Heart Group, Inc, DAB CR6931 (2026)

DECISION

September 24, 2024, is the effective date of reactivation of the Medicare enrollment and billing privileges of Petitioner.

I.  Background and Undisputed Facts

The material facts are undisputed.  Any reasonable inferences are drawn in favor of Petitioner in considering summary judgment for the Centers for Medicare & Medicaid Services.

On April 29, 2024, CGS Administrators, LLC, a Medicare administrative contractor (MAC), notified Petitioner that Petitioner needed to revalidate its Medicare enrollment record no later than July 31, 2024.  The MAC advised Petitioner that failure to timely revalidate could result in the deactivation of Petitioner’s billing privileges and result in a gap in Medicare reimbursement.  CMS Ex. 1 at 107-110.

On May 15, 2024, Petitioner filed a revalidation application.  CMS Ex. 89.  On June 5, 2024, the MAC informed Petitioner that information was required to correct its application.  CMS Ex. 1 at 87-88.  On July 9, 2024, the MAC advised Petitioner its

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billing privileges were deactivated because Petitioner did not timely respond to the MAC’s request for information.  CMS Ex. 1 at 84-86.

On September 24, 2024, Petitioner filed an application to revalidate and reactivate its billing privileges.  CMS Ex. 1 at 62-71.  The MAC notified Petitioner on December 13, 2024, that its reactivation enrollment application was approved effective September 24, 2024, with a gap in Petitioner’s billing privileges from July 9 through September 24, 2024 (the gap period).  CMS Ex. 1 at 10-15.

On December 20, 2024, Petitioner requested a reconsidered determination.  CMS Ex. 1 at 6-9.  On July 23, 2025, the MAC issued a reconsidered determination upholding a reactivation effective date of September 24, 2024, which resulted in a gap in Petitioner’s billing privileges from the deactivation of Petitioner billing privileges on July 9, 2024 to September 24, 2024, the date the MAC received Petitioner’s revalidation/reactivation application.  CMS Ex. 1 at 1-5.

On September 13, 2025, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ).1  The case was assigned to me for hearing and decision on September 16, 2025.

On November 17, 2025, CMS filed a motion to partially dismiss Petitioner’s request for hearing with supporting brief arguing that Petitioner has no right to review of the deactivation decision.  Petitioner filed no response to the motion.  The CMS motion for partial dismissal is resolved by this decision.

On December 5, 2025, CMS filed a motion for summary judgment and supporting brief (CMS Br.) with CMS Exs. 1 through 5.  Petitioner filed a response in opposition (P. Br.) on January 9, 2026, with no exhibits.  CMS filed a reply brief on January 27, 2026.  Petitioner did not object to my consideration of CMS Exs. 1 through 5 which are admitted as evidence.

Petitioner makes assertions in its request for hearing and brief that I accept as true for purposes of summary judgment:

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Petitioner provided services to Medicare beneficiaries during the gap period that have not been paid by Medicare.

Petitioner acted in good faith providing services to Medicare beneficiaries during the gap period.

Petitioner did not deny services to Medicare beneficiaries during the gap period.

Claims were filed with Medicare for services provided to Medicare beneficiaries during the gap period that have not been paid.

Unpaid claims have an adverse impact on Petitioner.

P. Br.; RFH at 2-3.

II.  Issues, Conclusions of Law, and Analysis

A.  Issues

Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Medicare billing privileges, which are the right to file claims with and to receive payment from Medicare; and

The effective date of reactivation of Petitioner’s billing privileges.

B.  Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis applying the law to the undisputed facts.

1.  Summary judgment is appropriate.

Petitioner is entitled to a hearing on the record before an ALJ under the Social Security Act (Act).  Act §§ 205(b); 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  The Departmental Appeals Board (Board) has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether

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summary judgment is appropriate.  I advised the parties in the Standing Order ¶¶ D and G that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).  A test for whether an issue of fact is genuinely in dispute is whether “the evidence [as to that issue] is such that a reasonable jury could return a verdict for the nonmoving party.”  Liberty Lobby, 477 U.S. at 248.  In evaluating whether there is a genuine issue as to a material fact, an ALJ must view the facts and the inferences to be drawn from the facts in the light most favorable to the nonmoving party, which I have done.  See Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3rd Cir. 1986).

The undisputed facts set forth above are the facts necessary to resolve this case.  The only issue properly before me is the effective date of reactivation of Petitioner’s billing privileges.  There is no genuine dispute of material fact related to the effective date of the reactivation of Petitioner’s billing privileges.  Petitioner requests that gap in billing privileges be eliminated by changing the effective date of reactivation of Petitioner’s billing privileges or by reducing the gap period to no more than 45 days.  RFH at 3.  In its brief, Petitioner states that its objective is to obtain payment for services rendered to Medicare beneficiaries during the gap period.  P. Br. at 2-4.  Petitioner’s request for relief must be resolved against Petitioner as a matter of law.  I conclude that CMS is entitled to judgment as a matter of law and summary judgment is appropriate.

2.  Petitioner has no right to ALJ review of the determination of the MAC to deactivate its billing privileges.  42 C.F.R. § 424.546(f).

3.  There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges, i.e., the date of reactivation of Petitioner’s right to submit claims to and receive payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.

4.  September 24, 2024, is the effective date of reactivation of Petitioner’s billing privileges as that was the date the MAC received Petitioner’s Medicare enrollment application that it could process to approval.  42 C.F.R. § 424.540(d)(2).

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This case involves a gap in Petitioner’s billing privileges from July 9 through September 23, 2024, the day before the day the MAC received Petitioner’s Medicare enrollment application it processed to approval.  CMS Ex. 1 at 62-71.  Petitioner’s grievance is that CMS and the MAC decline to pay for services rendered to Medicare-eligible beneficiaries during the gap period, even though there is no dispute that Petitioner was enrolled in Medicare during the gap period.  It is important to understand that Petitioner’s billing privileges were deactivated or suspended rather than being revoked.  There is no dispute Petitioner’s Medicare enrollment and related billing privileges were deactivated effective July 9, 2024, and not reactivated until September 24, 2024, resulting in the gap in billing privileges from July 9 through September 23, 2024.  Petitioner wants the gap in billing privileges eliminated by backdating the effective date of Petitioner’s reactivation to July 9, 2025, so that Petitioner may bill Medicare for services rendered to Medicare eligible beneficiaries during the gap period.  P. Br.; RFH.  Petitioner’s request for relief must be resolved against Petitioner as a matter of law.

The Secretary of the U.S. Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. pt. 424 that establish a process for enrolling providers and suppliers in Medicare.  Pursuant to the regulations, CMS or the MAC may deactivate the billing privileges of an enrolled provider or supplier for any of the eight reasons listed in 42 C.F.R. § 424.540(a).  Pursuant to 42 C.F.R. § 424.540(a)(3), Medicare billing privileges may be deactivated if a provider or supplier fails to revalidate its enrollment information within 90 calendar days from receipt of a notice from CMS to revalidate.  In this case, the July 9, 2024 notice of deactivation cited 42 C.F.R. § 424.540(a)(3) as authority for deactivation because Petitioner failed to timely revalidate its Medicare enrollment information.  CMS Ex. 1 at 84.  Unlike revocation of Medicare billing privileges, deactivation of billing privileges has no effect on a provider’s or supplier’s “participation agreement or any conditions of participation.”  42 C.F.R. § 424.540(c).  But a provider or supplier may receive no payment from Medicare for items or services provided to a Medicare-eligible beneficiary during the period when a provider’s or supplier’s billing privileges are deactivated.  42 C.F.R. § 424.540(e).

The MAC informed Petitioners in its July 9, 2024 notice, that Petitioner had the right to file a rebuttal to the deactivation pursuant to 42 C.F.R. §§ 424.545(b) and 424.546.  CMS Ex. 1 at 84.  The regulations are clear that filing a rebuttal was Petitioner’s only recourse when its Medicare billing privileges were deactivated.  42 C.F.R. §§ 424.545(b); 424.546(a).  There is no evidence that Petitioner filed a rebuttal.  Failure to file a rebuttal within 15 calendar days from the date of the notice of deactivation waived the right to submit a rebuttal.  42 C.F.R. § 424.546(c).  Furthermore, action or inaction by the MAC or CMS on a rebuttal is not appealable or subject to my review.  42 C.F.R. § 424.546(f).

Pursuant to 42 C.F.R. § 424.546(f), the deactivation determination of the MAC or CMS is not an initial determination of CMS or the MAC and not subject to appeal or my review.  42 C.F.R. §§ 498.3(b), 498.5.  Therefore, even if the MAC’s process in

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deactivating Petitioner’s Medicare enrollment and billing privileges was defective, the MAC’s decision to deactivate Petitioner’s billing privileges is not subject to appeal or my review.  Facts reflecting defects in the process the MAC followed in deactivating Petitioner’s billing are immaterial to this decision, i.e., such facts have no impact on the decision in this case.  Petitioner acknowledges that it has no right to request review of the deactivation determination.  P. Br. at 2.

The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the effective date of reactivation of billing privileges.  42 C.F.R. §§ 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15) provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination subject to review by an ALJ.  The Board has given an expansive 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 as well as the effective date of the reactivation of billing privileges.  See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-12 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, LLC, DAB No. 2860 at 6-7 (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).

Applying the persuasive reasoning of the Board in Alvarez and Urology, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges.  The only determination of CMS or the MAC that is subject to my review in a provider or supplier enrollment case is the reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).

Billing privileges may be reactivated in accordance with 42 C.F.R. § 424.540(b).  The provider or supplier must recertify the accuracy of its enrollment information, submit any missing information, and certify its compliance with all applicable Medicare enrollment requirements.  42 C.F.R. § 424.540(b)(1).  CMS may for any reason require a deactivated provider or supplier to submit a complete Medicare enrollment application (CMS-855) to reactivate billing privileges.  42 C.F.R. § 424.540(b)(2).  The regulation clearly gives CMS and the MAC discretion to accept a certification and partial application with missing information provided or require that Petitioner submit a complete Medicare enrollment application.

According to 42 C.F.R. § 424.540(d)(2), the effective date of reactivation of billing privileges is the date the MAC or CMS received the Medicare enrollment application that was processed to approval.  Therefore, by operation of 42 C.F.R. § 424.540(d)(2), the effective date of the reactivation of Petitioner’s Medicare billing privilege must be September 24, 2024, the date the MAC received Petitioner’s application that the MAC

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processed to approval.  CMS Ex. 1 at 3, 10, 13, 62. The regulations grant no discretion to the MAC, CMS, or me to select a different reactivation effective date.

Petitioner’s arguments that it acted in good faith and continued to provide services to Medicare beneficiaries during the gap period, and that the MAC’s refusal to pay for those services poses a financial hardship, are clearly requests for equitable relief.  RFH, P. Br.  I have no authority to grant equitable relief.  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) (noting that “[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”).

In its request for reconsideration, Petitioner argued that it relied upon the MAC’s provider enrollment team with catastrophic results.  Petitioner described the enrollment process as punitive, inefficient, unnecessarily complex, lacking in resources to assist providers and suppliers, and bureaucratic.  Petitioner described the difficulties it had with more specificity, including receiving incorrect or conflicting information from the MACs representatives.  CMS Ex. 1 at 7 to 8.  Petitioner voiced similar complaints against CMS and the MAC in its request for hearing.  RFH at 2-3.  Petitioner’s assertions could be construed to be that CMS and the MAC should be estopped from reactivating Petitioner’s billing privileges on a date after the date of the deactivation, which caused the gap in billing privileges.  But estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  There is no evidence suggesting fraud or other affirmative misconduct on the part of CMS, the MAC, or a staff member, even if I accept all of Petitioner allegations of bad advice, bureaucratic incompetence, and inefficiency as true.  Therefore, estoppel is not applicable in this case.

III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is September 24, 2024.