Anderson Township, DAB CR6947 (2026)

DECISION

March 14, 2025, is the effective date of reactivation of Petitioner’s Medicare billing privileges.

I.  Background and Undisputed Facts

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

On February 28, 2024, CGS Administrators, LLC, a Medicare administrative contractor (MAC), notified Petitioner that Petitioner needed to revalidate its Medicare enrollment record no later than May 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 Exhibit (Ex.) 1 at 6-7.

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On June 28, 2024,1 the MAC received a revalidation Medicare enrollment application from Petitioner signed by Suzanne Parker and dated June 21, 2024.  CMS Ex. 1 at 8, 12, 45.  Kherrolyne Bernal at 4720 Salisbury Road, Jacksonville, Florida, was listed in section 13 of Petitioner’s June 28, 2024 Medicare enrollment application as one of Petitioner’s contact persons.  CMS Ex. 1 at 40.  Kherrolyne Bernal worked for Optum as a credentialling specialist.  CMS Ex. 1 at 59.  The other contact person for Petitioner was Diane Williams, also at 4720 Salisbury Road in Jacksonville, Florida with an Optum.com email address.  CMS Ex. 1 at 41.  Petitioner’s correspondence mailing address listed in the June 28, 2024 Medicare revalidation enrollment application was 7850 5 Mile Road, Cincinnati, Ohio.  CMS Ex. 1 at 17.  But section 13 of the June 28, 2024 Medicare enrollment application stated that the contact person listed would be contacted regarding questions that arose during processing of the enrollment application.  CMS Ex. 1 at 40-41.

The MAC sent a letter dated July 11, 2024, addressed to Petitioner, attention Kherrolyne Bernal, at 4720 Salisbury Road, Jacksonville, Florida.  The letter advised that the MAC required corrections and additional documents within no more than 30 days to complete processing Petitioner’s June 28, 2024 Medicare enrollment application.  The letter advised that failure to submit the corrections and/or documents could cause rejection of Petitioner’s application.  CMS Ex. 1 at 62-65, 68-71.

On October 12, 2024, a MAC employee, Amanda Birk, communicated by email to Kherrolyne Bernal, that the MAC required additional corrections to Petitioner’s June 28, 2024 Medicare enrollment application.  CMS Ex. 1 at 95.

On October 16, 2024, the MAC sent Petitioner a letter signed by Amanda Birk, advising Petitioner its Medicare billing privileges were deactivated effective October 16, 2024, because Petitioner had failed to timely revalidate its Medicare enrollment record or because its application was rejected for failure to timely respond to requests for information.  CMS Ex. 1 at 96-98.  On October 29, 2024, the MAC notified Petitioner in response to Petitioner’s rebuttal of the deactivation action, that the MAC determined there was no error in the deactivation of Petitioner’s billing privileges based on Petitioner’s failure to timely respond to the MAC’s requests for information.  CMS Ex. 1 at 123-25.

On March 14, 2025, the MAC received an application from Petitioner to reactivate its Medicare billing privileges.  CMS Ex. 1 at 99. 

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On April 30, 2025, the MAC notified Petitioner that its reactivation enrollment application was approved.  But the MAC also advised that there was a gap in Petitioner’s billing privileges from October 16, 2024 through March 14, 2025.  CMS Ex. 1 at 118.

On July 3, 2025, Petitioner requested reconsideration of the April 30, 2025 MAC initial determination of the reactivation effective date.  CMS Ex. 1 at 126-32.

On August 8, 2025, the MAC issued a reconsidered determination.  The MAC found that Petitioner’s Medicare billing privileges were deactivated October 16, 2024.  Petitioner’s billing privileges were reactivated on March 14, 2025.  Therefore, there was a gap in Petitioner’s billing privileges from October 16, 2024 to March 14, 2025.  CMS Ex. 1 at 2.  The MAC found no error in the determination of the effective date of the reactivation of Petitioner’s Medicare billing privileges, which caused the gap in billing privileges from October 16, 2024 to March 14, 2025.  CMS Ex. 1 at 1-5.

On October 10, 2025, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ).  The case was assigned to me for hearing and decision on October 16, 2025, and my Standing Order was issued.  On December 11, 2025, CMS filed a motion for summary judgment and supporting brief (CMS Br.).  On December 17, 2025, CMS filed CMS Ex. 1.  On January 12, 2026, Petitioner filed a brief opposing the CMS motion for summary judgment (P. Br.) with Petitioner’s exhibits (P. Exs.) 1 through 4.  CMS waived filing a reply brief on January 28, 2026.  No objections have been made to my consideration of CMS Ex. 1 or P. Exs. 1 through 4 and all are admitted as evidence.

Petitioner asserts in its brief that throughout the revalidation process all communication between Petitioner and the MAC was through Optuminsight (Optum).  P. Br. at 1.  Petitioner asserts in its request for hearing that it did not receive a copy of the July 11, 2024 notice from the MAC that Petitioner needed to make corrections to its June 28, 2024 revalidation application.  RFH at 1; P. Ex. 1.  I accept the assertion as true for purposes of summary judgment.  The July 11, 2024 letter was addressed to Kherrolyne Bernal with Optum in Jacksonville, Florida who Petitioner concedes was handling its Medicare revalidation.  P. Br. at 1; CMS Ex. 1 at 62-65, 68-71.  Petitioner asserts it did not receive the October 12, 2024, email request from the MAC for corrections to Petitioner’s revalidation Medicare enrollment application or the October 16, 2024 notice of deactivation until October 22, 2024, when Petitioner was informed by Optum of the deactivation.  P. Br. at 2; RFH at 2; P. Ex. 4.  I accept the assertions as true for purposes of summary judgment.  Based on P. Exs. 1 through 4, I infer that Optum provided services for Petitioner under contract or another business arrangement.  There is no evidence from which to infer that Optum represented either the MAC or CMS.

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II.  Issues, Conclusions of Law, and Analysis

1. 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, that is, the right to file claims with and to receive payment from Medicare; and

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

2. 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 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).

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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 are no genuine disputes of material fact related to the effective date of the reactivation of Petitioner’s billing privileges.  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 Petitioner’s 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 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.  March 14, 2025, 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).

There is no dispute that the MAC deactivated Petitioner’s Medicare billing privileges effective October 16, 2024.  There is no dispute that Petitioner’s billing privileges were not reactivated until March 14, 2025.  Therefore, there was a gap in Petitioner’s billing privileges from October 16, 2024, the effective date of deactivation, through March 13, 2025, the day before the MAC received Petitioner’s Medicare enrollment application that it processed to approval.  CMS Ex. 1 at 96-120.

Petitioner’s problem is that CMS and the MAC will not pay for services rendered to Medicare-eligible beneficiaries during the gap period of October 16, 2024 through March 13, 2025, even though there is no dispute that Petitioner was enrolled in Medicare during the gap period.  42 C.F.R. § 424.540(e).  Petitioner’s billing privileges were deactivated or suspended during the gap period and not revoked.  42 C.F.R. § 424.540(c).  Petitioner wants the gap in billing privileges eliminated so that Petitioner may bill Medicare for services rendered to Medicare-eligible beneficiaries during the gap period.  P. Br.; RFH.

Petitioner’s arguments for relief must be resolved against Petitioner as matters of law.  In its request for hearing, Petitioner requests review of the decision to deactivate its billing privileges.  RFH at 1.  But as explained hereafter there is no review of the deactivation decision available to Petitioner.  In its brief, Petitioner requests reinstatement of its Medicare billing privileges during the gap period.  I construe Petitioner’s request to be either a request for equitable relief which I have no authority to grant; or a request to find

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an earlier date of reactivation of billing privileges, which also must be resolved against Petitioner as a matter of law.

Deactivation of Billing Privileges

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).  The MAC’s October 16, 2024 notice of deactivation cited 42 C.F.R. § 424.540(a)(3) as authority for the deactivation.  CMS Ex. 1 at 96.  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.  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).  There is no dispute that on February 28, 2024, the MAC advised Petitioner it needed to revalidate its Medicare enrollment.  CMS Ex. 1 at 6.  There is also no dispute that October 16, 2024, the effective date of deactivation of Petitioner’s billing privileges (CMS Ex. 1 at 96), was more than 90 days after February 28, 2024, and Petitioner had failed to revalidate its enrollment.  Therefore, the MAC had authority under 42 C.F.R. § 424.540(a)(3) to deactivate Petitioner’s billing privileges.

The MAC informed Petitioner in its October 16, 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 96-97.  The regulations are clear that filing a rebuttal was Petitioner’s only recourse when its Medicare billing privileges were deactivated and there is no right to request reconsideration or further review of the deactivation decision.  42 C.F.R. §§ 424.545(b); 424.546(a).

Petitioner filed a rebuttal.  But the MAC found no relief appropriate for Petitioner.  CMS Ex. 123-25.  MAC or CMS action on a rebuttal request is not appealable or subject to further 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.  Even if the MAC’s process in deactivating Petitioner’s Medicare enrollment and billing privileges was defective, other than the right to file a rebuttal, a deactivated provider or supplier has no recourse through reconsideration or further appeal.

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Reactivation of Billing Privileges

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 March 14, 2025, the date the MAC received Petitioner’s application that the MAC processed to approval.  CMS Ex. 1 at 99, 118.  The regulations grant no discretion to the MAC, CMS, or me to select a different reactivation effective date.

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Petitioner’s Arguments

Petitioner asserts in its brief that throughout the revalidation process all communication between Petitioner and the MAC was through Optum.  P. Br. at 1.  In its request for hearing Petitioner asserts that it did not receive a copy of the July 11, 2024 letter from the MAC advising Petitioner of missing items in its June 28, 2024 revalidation application.  RFH at 1.  But the July 11, 2024 letter was addressed to Kherrolyne Bernal with Optum in Jacksonville, Florida who Petitioner concedes was handling its Medicare revalidation.  P. Br. at 1; CMS Ex. 1 at 62-65, 68-71.  Kherrolyne Bernal was listed in Petitioner’s June 28, 2024 revalidation application as one of Petitioner’s contact people.  Kherrolyne Bernal’s mailing address was listed as 4720 Salisbury Road, Jacksonville, Florida and her email address was Optum.com.  CMS Ex. 1 at 40.  Petitioner also asserts it did not receive the October 12, 2024, email request from the MAC for corrections to Petitioner’s revalidation Medicare enrollment application or the October 16, 2024 notice of deactivation until October 22, 2024, when Petitioner was informed by Optum of the deactivation.  P. Br. at 2; RFH at 2.  The October 12, 2024 email from the MAC was addressed to Kherrolyn Bernal, Petitioner’s contact person listed in its June 28, 2024 application.  The October 16, 2024 notice of deactivation was addressed to Petitioner but mailed to Kherrolyn Bernal’s mailing address of 4720 Salisbury Road, the address listed by Petitioner in its June 28, 2024 revalidation application.  CMS Ex. 1 at 40, 96.  I accept Petitioner assertions regarding its communication with Optum.  But Petitioner does not explain how its communication issues with its contractor raises is grounds for any relief.

Petitioner’s arguments may be construed to be 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.”).

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 communication as true.  Petitioner’s complaints focus on its failed or delayed communication with its contractor, and not the MAC or CMS.  I conclude that estoppel is not applicable in this case.

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III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is March 14, 2025.

July 24, 2026