George Shenouda/GI Health LLC, DAB CR6956 (2026)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a Medicare administrative contractor, determined that the effective date for GI Health LLC’s initial enrollment application and Dr. George Shenouda’s (Petitioners’) reassignment of billing privileges was October 24, 2024, with retrospective billing privileges effective September 23, 2024.  Petitioners requested a hearing before an administrative law judge (ALJ) to challenge the effective date.  Because the administrative contractor approved Petitioners enrollment application and reassignment of billing privileges application that were received on October 24, 2024, the earliest possible effective date is October 24, 2024.  Additionally, the Medicare administrative contractor granted Petitioners a retrospective billing period, beginning on September 23, 2024.  As explained below, I find that CMS properly determined October 24, 2024, as the effective date for Petitioners application and that CMS exercised its discretion, as contemplated in the regulation, to grant Petitioners a retrospective billing period, beginning on September 23, 2024.

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     I.  Background and Procedural History

Dr. George Shenouda is a physician enrolled as a Medicare Part B practitioner and the Chief Medical Officer of GI Health LLC, located in Boynton Beach, Florida.  CMS Exhibit (Ex.) 4; Petitioner’s Brief (P. Br.).  On October 24, 2024, Dr. Shenouda submitted an application to reassign his benefits to GI Health, LLC.  CMS Ex. 5.  Also on October 24, 2024, GI Health, LLC submitted an application to enroll as a Medicare Part B supplier.  CMS Ex. 4.  By letters dated November 12, 2024, First Coast Service Options, Inc. (First Coast), a Medicare administrative contractor, approved those applications with an effective date for GI Health LLC of September 17, 2024, and a reassignment effective date for Dr. Shenouda of the same date.  CMS Ex. 8; CMS Ex. 9.

Petitioners timely requested reconsideration, seeking a retroactive effective date 45 days prior to the determined effective date because Petitioners began seeing Medicare patients in August 2024.  CMS Ex. 10.  On January 13, 2025, First Coast issued an unfavorable reconsidered determination.  CMS Ex. 11.  In the reconsidered determination, First Coast determined the effective dates for the applications to be October 24, 2024, the date the applications were submitted.  Id. at 3.  Furthermore, First Coast determined that the appropriate retrospective effective date of billing to be September 23, 2024.  Id.

Petitioners timely filed a request for hearing (RH) to challenge the reconsidered determination.  On February 12, 2025, the Civil Remedies Division (CRD) acknowledged receipt of the request for hearing and issued a Standing Prehearing Order (SPO).  In the SPO, the parties were directed to file a prehearing exchange and were permitted to file motions for summary judgment in lieu of or in addition to their exchanges.  SPO ¶ 7.  CMS filed a prehearing exchange with incorporated brief in support of summary judgment (CMS Br.) and twelve exhibits (CMS Exs. 1-12).  Petitioners failed to timely file their prehearing exchange, and an Order to Show Cause was issued.  CRD Dkt. Entry No. 5.  Petitioners responded to the Order to Show Cause with a letter explaining that they were informed that they did not need to submit additional information and that they did not intend to abandon the case.  P. Br.  Based on Petitioners response, the Order to Show Cause is discharged.  CMS filed a reply incorporating its previously filed motion for summary judgment.

     II.  Admission of Evidence and Decision on the Written Record

Petitioners did not object to any of CMS’s proposed exhibits.  I therefore admit CMS Exs. 1-12 into the record.

The SPO 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.  SPO ¶¶ 11-14; CRD Procedures §§ 16(b), 19(b); see Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB

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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.  SPO ¶ 14; CRD Procedures § 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 properly established October 24, 2024 as the effective date for Dr. Shenouda’s reassignment of Medicare benefits and GI Health LLC’s enrollment application.

     IV.  Jurisdiction

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

     V.  Applicable Legal Authority

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).

Petitioners, suppliers in the Medicare program, were 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.

CMS sets the effective date of enrollment in accordance with the following:

The effective date for billing privileges for physicians, non-physician practitioners, physician and non-physician practitioner organizations . . . is the later of –

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(1) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or

(2) The date that the supplier first began furnishing services at a new practice location.

42 C.F.R. § 424.520(d).  The effective date of enrollment is an initial determination subject to appeal under 42 C.F.R. Part 498.  42 C.F.R. § 498.3(a)(1), (b)(15); Victor Alvarez, M.D., DAB No. 2325 (2010).

Retrospective billing privileges may be granted when –

[T]he physician, non-physician practitioner, physician or non-physician organization . . . has met all program requirements, including State licensure requirements, and services were provided at the enrolled practice location for up to –

(1) Thirty days prior to their effective date if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries; or

(2) Ninety days prior to their effective date if a Presidentially-declared disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (Stafford Act) precluded enrollment in advance of providing services to Medicare beneficiaries.

42 C.F.R. § 424.521(a).

In certain circumstances, a supplier who has received an assignment of benefits may reassign those benefits to an employer, or to an individual or entity with which the supplier has a contractual arrangement.  Act § 1842(b)(3) (42 U.S.C. § 1395u(b)(3)); 42 C.F.R. § 424.80(b)(1)-(2).  The provisions governing the effective date of enrollment apply to reassignment.  Gaurav Lakhanpal, MD, DAB No. 2951 (2019); see also Yakup Akyol, M.D., DAB No. 3017 at 5 (2020).

Section 1135 of the Act (42 U.S.C. § 1320b-5) authorizes the Secretary to waive certain requirements for Medicare enrollment and billing during national emergencies:

(a) Purpose. ‒ The purpose of this section is to enable the Secretary to ensure to the maximum extent feasible, in any emergency area and during an emergency period (as defined in subsection (g)(1)) ‒

*  *  *

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(2) that health care providers (as defined in subsection (g)(2)) that furnish such items and services in good faith, but that are unable to comply with one or more requirements described in subsection (b), may be reimbursed for such items and services and exempted from sanctions for such noncompliance, absent any determination of fraud or abuse.

(b) Secretarial Authority. ‒ To the extent necessary to accomplish the purpose specified in subsection (a), the Secretary is authorized, subject to the provisions of this section, to temporarily waive or modify the application of, with respect to health care items and services furnished by a health care provider (or classes of health care providers) in any emergency area (or portion of such an area) during any portion of an emergency period, the requirements of titles XVIII, XIX, or XXI, or any regulation thereunder (and the requirements of this title other than this section, and regulations thereunder, insofar as they relate to such titles), pertaining to ‒

(1)(A) conditions of participation or other certification requirements for an individual health care provider or types of providers[]

*  *  *

(c) Authority for Retroactive Waiver. ‒ A waiver or modification of requirements pursuant to this section may, at the Secretary’s discretion, be made retroactive to the beginning of the emergency period or any subsequent date in such period specified by the Secretary.

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

1. On October 24, 2024, First Coast received Petitioners’ applications for Medicare enrollment and reassignment of Medicare benefits, and subsequently approved those applications.1

First Coast received Petitioners reassignment and enrollment applications on October 24, 2024.  CMS Exs. 4, 5.  These applications were subsequently approved by First Coast, with billing privileges for GI Health LLC effective September 17, 2024 and reassignment billing for Dr. Shenouda effective September 17, 2024.

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2. The effective date for Petitioners’ applications is October 24, 2024.

Acknowledging errors made in the initial determination, First Coast issued a reconsidered determination establishing the effective date for the reassignment of benefits application and initial enrollment application as October 24, 2024.2  CMS Ex. 11 at 3.  The effective date of Medicare enrollment and billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or the date 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 the Medicare contractor “receives” a signed enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008).

3. First Coast granted Petitioners retrospective billing privileges effective September 23, 2024.

Due to two Presidentially declared disasters, Hurricanes Helene and Milton, First Coast allowed a retrospective billing period for Petitioners beginning on September 23, 2024.  CMS Ex. 11 at 3.  This date was modified from the initial determination letters, because September 23, 2024, according to First Coast, was the date the disaster was declared.3  Id.

When a contractor approves an enrollment application, it may allow retrospective billing for up to 30 days prior to the effective date established under 42 C.F.R. § 424.520 for a supplier that meets all program requirements and is providing Medicare-covered services. 42 C.F.R. § 424.521(a)(1).  The regulations also authorize CMS or its contractor to permit retrospective billing for up to 90 days prior to the effective date “if a Presidentially-declared disaster under the Robert T. Stafford Act . . . precluded enrollment in advance of providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(2).  Here, First Coast granted Petitioners retrospective billing dates consistent with the applicable regulations.

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4. Retrospective billing privileges are within CMS’s discretion and not subject to administrative review.

Petitioners request a 45-day retrospective billing period because patients were provided with care and life-saving procedures during August 2024.  RH.  Petitioners also assert that GI Health LLC’s status as an inpatient GI/Hepatology specialist group prevents it from refusing Medicare referrals and fairness requires that it receive compensation for the medical work performed.  Id.  The regulations governing enrollment appeals, 42 C.F.R. Part 498, do not authorize administrative law judges to review the date from which CMS permits retrospective billing.  The only initial determination I have authority to review is the effective date of enrollment.  42 C.F.R. § 498.3(b)(15).  Thus, Petitioners’ arguments are not ones I have authority to hear and decide.

In general, where the regulations permit a determination to CMS’s discretion, the exercise of that discretion is not subject to administrative review.  See Decatur Health Imaging, LLC, DAB No. 2805 at 8-9 (2017) (citing Brian K. Ellefsen, DO, DAB No. 2626 at 7 (2015); Douglas Bradley, M.D., DAB No. 2663 at 13 n.13 (2015)).  Determinations regarding a supplier’s retrospective billing date are matters over which the Secretary or CMS has discretion.  First, pursuant to section 1135(b) of the Act, “[t]o the extent necessary . . . the Secretary is authorized, subject to the provisions of this section, to temporarily waive or modify [certain enrollment requirements].”  42 U.S.C. § 1320b–5(b) (Emphasis added).  Pursuant to section 1135(c) of the Act, “[a] waiver or modification of requirements pursuant to this section may, at the Secretary’s discretion, be made retroactive to the beginning of the emergency period or any subsequent date in such period specified by the Secretary.”  Id.  (Emphasis added).  The regulations do not require the Secretary to waive or modify Medicare enrollment requirements, but merely authorize the Secretary to do so.  Similarly, retrospective billing date determinations are not subject to administrative review because, under the regulations, CMS or its contractor has discretion to grant or deny retrospective billing.  See Sandeep Gupta, M.D., et al., DAB CR5617 at 4 (2020), aff’d, DAB No. 3088 (2023).

5. I do not have the authority to grant equitable relief.

Petitioners explain that “compassionate care” was provided to 25 patients starting on August 11, 2024 through September 17, 2024.  P. Br.  Petitioners request their “fair compensation” for the services provided to Medicare patients during that time.  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).  I may not set aside CMS’s lawful exercise of its discretion based on principles of equity or fairness.  See, e.g., Cent Kan. Cancer Inst., DAB No. 2749 at 10 (2016); see also Tossan Fregene, M.D. and Oncology Clinics, Inc., DAB No. 3018 at 8 (2020); Chaplin Liu, M.D., DAB No. 2976 at 10 (2019); James Shepard, M.D., DAB No. 2793 at 9 (2017).

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     VII.  Conclusion

For the reasons explained above, I affirm First Coast’s determination that Petitioners’ effective date of reassignment and initial enrollment is October 24, 2024.