SpineMD PLLC, DAB CR6937 (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 SpineMD PLLC (SpineMD or Petitioner) was November 8, 2024.  Petitioner requested a hearing before an administrative law judge (ALJ) to challenge the effective date.  Because the administrative contractor approved SpineMD’s revalidation enrollment application that was received on November 8, 2024, the earliest possible effective date is November 8, 2024.  As explained below, I find that CMS properly determined November 8, 2024, as the effective date for Petitioner’s Medicare reactivation. 

I.  Background and Procedural History

SpineMD is a group practice doing business in North Richland Hills, Texas.  CMS Ex. 3.  In June 2024, Novitas Solutions (Novitas), a Medicare administrative contractor, notified SpineMD that it was required to revalidate its Medicare enrollment record.  CMS Ex. 7.  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.  Id. at 1.  On

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October 2, 2024, Novitas informed Petitioner that it was placing a stay on its Medicare enrollment record due to its failure to respond to the revalidation request by the due date, September 30, 2024.  CMS Ex. 4.  In this notice, Novitas informed Petitioner that if Petitioner’s enrollment is deactivated, “you will not be paid for services rendered during the period of deactivation” and “this will cause a gap in your reimbursement.”  Id. at 1.  In a letter dated November 5, 2024, Novitas informed Petitioner that its billing privileges were deactivated, effective October 1, 2024, due to its failure to timely revalidate its enrollment record.  CMS Ex. 1. 

On November 8, 2024, Novitas received SpineMD’s revalidation and reactivation application.  CMS Ex. 3.  Novitas issued a notice to Petitioner on November 12, 2024, which approved its reactivation application with an effective date of November 8, 2024 and informed Petitioner of its gap in billing privileges from October 1, 2024 to November 7, 2024.  CMS Ex. 5.  Petitioner timely submitted a reconsideration request explaining that it did not receive the letter from Novitas notifying Petitioner that it was required to submit a revalidation application and that Petitioner was unaware that revalidation was required.  CMS Ex. 6. 

Novitas issued an unfavorable reconsidered determination upholding the initial determination with a reactivation effective date of November 8, 2024 for SpineMD’s billing privileges.  CMS. Ex. 2.  Petitioner timely filed a request for hearing (RH) to challenge the reconsidered determination.  On February 3, 2025, ALJ Leslie C. Rogall issued an Acknowledgement and a Standing Pre-Hearing Order, which established a submission schedule for pre-hearing exchanges1.  In response, CMS filed a pre-hearing exchange with incorporated brief in support of summary judgment (CMS Br.) and eight exhibits (CMS Exs. 1-8).  Petitioner failed to timely file its pre-hearing exchange, and I issued an Order to Show Cause, to which Petitioner responded.  Petitioner’s filing included a response to the Order to Show Cause and a rebuttal to Respondent’s motion for summary judgment (P. Br.).  Petitioner did not submit any exhibits.  Because Petitioner had shown cause and filed its pre-hearing brief, the Order to Show Cause was discharged.  Then, CMS waived its right to file a reply.  Finally, SpineMD filed a reply brief (P. R. Br.) to Respondent’s waiver. 

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. 1-8 into the record.  Standing Pre-hearing Order ¶ 11; CRDP § 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

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opposing party requested an opportunity to cross-examine a witness.  Standing Pre-hearing Order ¶¶ 11-14; CRDP §§ 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 offered witnesses for examination and submitted written direct testimony.  Therefore, an in-person hearing is not required.  Standing Pre-hearing Order ¶ 14; CRDP § 19(d).  There is also 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 November 8, 2024, as the effective date for reactivation of Petitioner’s Medicare billing privileges. 

IV.  Jurisdiction

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

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

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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’s 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 enrolled provider or supplier may reactivate its Medicare billing privileges by recertifying that its enrollment information currently on file is correct, furnish any missing information, and comply with all applicable enrollment requirements.  42 C.F.R. § 424.540(b)(1).  CMS may require that a deactivated provider or supplier submit a complete enrollment application.  42 C.F.R. § 424.540(b)(2). 

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 reactivation submission that was processed to approval.  42 C.F.R. § 424.540(d)(2). 

A.  On November 8, 2024, the CMS Medicare administrative contractor received Petitioner’s enrollment application, which it processed to approval.2 

Novitas received SpineMD’s revalidation and reactivation application on November 8, 2024.  CMS Ex. 3 at 1.  Subsequently, Novitas approved SpineMD’s application and reactivated its Medicare billing privileges, effective November 8, 2024.  CMS Ex. 5. 

B.  The effective date for Petitioner’s Medicare billing privileges is November 8, 2024. 

In the instant case, Novitas properly determined that SpineMD’s effective date for reactivation of its Medicare billing privileges is November 8, 2024, because that is the date Novitas received SpineMD’s revalidation application that Novitas ultimately approved.  Petitioner does not dispute the date Novitas received the application.  Therefore, pursuant to 42 C.F.R. § 424.540(d)(2), the date Novitas received SpineMD’s subsequently approved enrollment application, November 8, 2024, is the correct reactivation effective date of enrollment. 

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

The owner of SpineMD, Dr. Anil K. Kesani, asserts on behalf of Petitioner that the revalidation process was confusing and that he was unaware that SpineMD needed to revalidate because Petitioner never received the letter from Novitas informing it that a revalidation was required.  RH; P. Br.  Furthermore, Dr. Kesani states that there were problems with the email account and changes were made to SpineMD’s payment information in the Provider Enrollment, Chain, and Ownership System (PECOS).  RH at 2; P. Br. at 2.  While using PECOS, no notifications were provided to SpineMD that it needed to revalidate.  RH; P. Br. at 2.  Dr. Kesani also explains that he “had to investigate and find out by other means whether revalidation was necessary.”  RH at 2.  His billing staff made two calls regarding the matter.  Id.  During the first call, there was “no mention by the Medicare representative that . . . credentialing/billing rights were either stay[ed] or deactivated.”  Id. at 3.  During a second call, Petitioner was told that it could resubmit claims after the revalidation and that those claims would be paid.  Id. at 3.  Dr. Kesani explains that if the practice was aware that this was not the case, it would have moved services for Medicare patients to later dates once the revalidation was completed.  Id. 

Additionally, Petitioner requests a “hardship exception/waiver” because the billing gap period has caused significant financial harm to SpineMD.  RH.  The inability to receive payment during the gap period has affected the financial viability of the practice and threatened an estimated financial loss of $10-15,000.  Id. at 1.  Specifically, Petitioner explains that this amount would allow the practice to cover one month of employee payroll.  P. R. Br. at 1. 

Even if I assume that Petitioner was provided incorrect information by Medicare representatives,  Petitioner would not be entitled to any relief in the instant case.  In essence, Petitioner asserts an argument that relies on the doctrine of equitable estoppel, alleging that because the Medicare representatives informed Petitioner that its claims would be paid after the revalidation process, this promise should be enforced in the instant case.  However, enforcing equitable estoppel against a government entity is not possible unless affirmative misconduct is proven.  See e.g. Richard Weinberger, M.D. & Barbara Vizy, M.D., DAB No. 2823 at 19 (2017).  Affirmative misconduct requires more than “failing to provide accurate information or negligently giving wrong advice.”  Id.  (citations omitted). 

Unfortunately, Petitioner’s request for a hardship exception or waiver amounts 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 SpineMD’s financial challenges, I do not have the authority to grant an earlier effective date based on equitable or policy

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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, while Petitioner claims that it did not receive the letter3 requesting revalidation, this argument is immaterial because I do not have the authority to review whether deactivation was proper nor to order retrospective reimbursement for services SpineMD provided during the period of deactivation.  Jeffrey E. McIlroy, MD, Inc., DAB No. 3143 at 3-4 (2024); Tosan Fregene, M.D. & 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); 42 C.F.R. §§ 424.540(e), 424.555(b).  The lack of notice that Petitioner alleges is only relevant to whether SpineMD’s deactivation was proper.  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). 

VI.  Conclusion

Because the Medicare administrative contractor received Petitioner’s reactivation application on November 8, 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.