City of Madison, DAB CR7001

DECISION

August 29, 2024, 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 29, 2024, National Government Services, 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 7-8. 

On June 5, 2024, the MAC notified Petitioner that it placed a stay on Petitioner’s enrollment record effective June 5, 2024, because Petitioner did not submit a revalidation application before May 31, 2024.  The MAC advised Petitioner that Petitioner’s claims for services and items furnished during the period of the stay would be rejected.  The

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MAC advised Petitioner that, if a revalidation application was not received within 30 days, Petitioner’s billing privileges could be deactivated resulting in nonpayment of claims for services or items furnished during the period of deactivation.  CMS Ex. 1 at 9-10. 

On July 10, 2024, the MAC notified Petitioner that its Medicare billing privileges were deactivated effective June 1, 2024, because Petitioner failed to revalidate its Medicare enrollment record.  The MAC advised Petitioner of the right to challenge the deactivation by filing a rebuttal under 42 C.F.R. § 424.546.1  The MAC advised Petitioner that it had to revalidate its Medicare enrollment record for its billing privileges to be reactivated.  The MAC also informed Petitioner that Petitioner could not be paid for services rendered during the period of deactivation resulting in a gap in reimbursement for claims for service rendered during the deactivation.  CMS Ex. 1 at 11-13. 

On August 29, 2024, the MAC received Petitioner’s revalidation application to reactivate Petitioner’s billing privileges, with corrections received on September 23 and 26, 2024.  Application information shows that Petitioner is enrolled as a supplier of ambulance services.  CMS Ex. 1 at 15.  Petitioner geographic service area is Madison, Wisconsin and surrounding zip codes.  CMS Ex. 1 at 22-42.  Petitioner operates multiple ambulances.  CMS Ex. 1 at 43-52. 

On October 12, 2024, the MAC notified Petitioner that Petitioner’s revalidation/reactivation enrollment application was approved.  Petitioner retained its Provider Transaction Access Number (PTAN) that was first effective January 1, 1966.  The MAC listed information that was changed in Petitioner’s Medicare enrollment record based on the revalidation/reactivation application.  The MAC informed Petitioner that there was a gap in Petitioner’s billing privileges from June 2 through August 28, 2024 (gap period).  The MAC advised Petitioner it would not be reimbursed for services provided to Medicare beneficiaries during the gap period because Petitioner was not in compliance with Medicare requirements during that period.  The MAC advised Petitioner of the right to file a request for reconsideration of the reactivation determination.  CMS Ex. 1 at 62-65, 67-71. 

Petitioner requested a reconsidered determination by letter dated December 10, 2024.  Petitioner requested a reactivation effective date of June 1, 2024.  CMS Ex. 1 at 66. 

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On August 5, 2025, a CMS hearing officer issued a reconsidered determination.  The hearing officer upheld the reactivation effective date of August 29, 2024, the date the MAC received Petitioner’s revalidation/reactivation enrollment application that it processed to approval.  The hearing officer noted that there was a gap in Petitioner’s billing privileges from June 1, 2024, the date Petitioner’s billing privileges were deactivated, through August 28, 2024, the day prior to the day the MAC received the application it processed to approval.  The hearing officer rejected an argument by Petitioner that it filed an application in June 2024, because Petitioner presented no evidence that an application was submitted to the MAC in June 2024.  The hearing officer noted that, even if an application was filed in June 2024, it was the August 29, 2024 application that was processed to approval.  The hearing officer also rejected Petitioner’s allegations it experienced technical problems when filing its application online because Petitioner presented no evidence to support the allegations.  CMS Ex. 1-4. 

On September 26, 2025, Petitioner requested a hearing (RFH) before an administrative law judge (ALJ).  The case was assigned to me on September 26, 2025, and my Standing Order was issued.  On December 9, 2025, Petitioner filed Petitioner’s exhibits (P. Exs.) A, B, and C.  On December 10, 2025, CMS filed a combined prehearing brief and motion for summary judgment with CMS Ex. 1.  On March 5, 2026, I ordered Petitioner to show cause why its case should not be dismissed because Petitioner failed to comply with my Standing Order by not filing a prehearing brief or response to CMS’s motion for summary judgment.  Petitioner did not respond to my order to show cause, and I dismissed Petitioner’s case for abandonment on March 26, 2026.  The dismissal caught Petitioner’s attention and on April 7, 2026, Petitioner requested that I vacate the dismissal and consider its case.  Petitioner incorrectly asserted that it had complied with all requirements of the Standing Order.  Petitioner has never filed a response to the CMS motion for summary judgment or a prehearing brief.  I conclude that Petitioner has waived its right to file a response to the CMS motion for summary judgment or a prehearing brief.  On April 13, 2026, I vacated the dismissal to ensure no prejudice to Petitioner because Petitioner is represented by a non-attorney and Petitioner was clear it did not intend to abandon its request for hearing.  Because Petitioner’s violations of my orders occurred only twice, I conclude a sanction against Petitioner is not necessary or appropriate. 

Petitioner did not object to my consideration of CMS Ex. 1 and it is admitted as evidence.  CMS did not object to my consideration of P. Exs. A, B, and C, and they are admitted.2

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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, 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. 

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 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

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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 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. 

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, that is, 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.  August 29, 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). 

There is no dispute that the MAC deactivated Petitioner’s Medicare billing privileges effective June 1, 2024.  There is no dispute that Petitioner’s billing privileges were not reactivated until August 29, 2025.  Therefore, there was a gap in Petitioner’s billing privileges from June 2, 2024, the effective date of deactivation, through August 28, 2024, the day before the MAC received Petitioner’s Medicare enrollment application that it processed to approval.  CMS Ex. 1 at 11, 62-63; RFH. 

Petitioner’s problem is that CMS and the MAC will not pay for services Petitioner rendered to Medicare-eligible beneficiaries during the gap period of June 1, 2024 through August 28, 2024, 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.  RFH.  The gap period resulted from two actions of the MAC and CMS – the deactivation of Petitioner’s Medicare billing privileges and the reactivation of Petitioner’s Medicare billing privileges. 

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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 July 10, 2024 notice of deactivation cited 42 C.F.R. § 424.540(a)(3) as authority for the deactivation.  CMS Ex. 1 at 11. 

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 29, 2024, the MAC advised Petitioner it needed to revalidate its Medicare enrollment.  CMS Ex. 1 at 7.  Petitioner does not dispute it received the February 29, 2024 notice.  RFH; P. Exs. A, B.  There is also no dispute that June 1, 2024, the effective date of deactivation of Petitioner’s billing privileges (CMS Ex. 1 at 11), was more than 90 days after February 29, 2024, and Petitioner had failed to revalidate its enrollment.  RFH.  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 July 10, 2024 notice of deactivation that Petitioner had the right to file a rebuttal to the deactivation pursuant to 42 C.F.R. § 424.546.  CMS Ex. 1 at 11-12.  The regulations are clear that filing a rebuttal was Petitioner’s only recourse when its Medicare billing privileges were deactivated.  Petitioner had no right under the regulations to request reconsideration or further review of the deactivation decision.  42 C.F.R. §§ 424.545(b); 424.546(a); Jeffrey K. Mcilroy, MD, Inc., DAB No. 3143 at 4 (2024).  Petitioner does not allege it filed a rebuttal and there is no evidence it did so.  Even if, Petitioner filed a rebuttal, CMS or MAC action on a rebuttal request is not an initial determination and not subject to appeal.  42 C.F.R. § 424.546(f). 

I conclude that 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, ALJ review, or

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Board review.  Accordingly, if Petitioner’s arguments were intended to challenge the deactivation determination, the arguments must be rejected as a matter of law. 

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 August 29, 2024, the date the MAC received Petitioner’s application that the MAC processed to approval.  CMS Ex. 1 at 15.  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 request for hearing that after having problems filing its revalidation application online, it filed a paper Medicare enrollment application to revalidate its enrollment in June 2024.  Petitioner asserts that after receiving the June 5, 2024 notice its billing privileges were stayed, it resubmitted the paper Medicare enrollment application by mail on July 5, 2024.  RFH at 1.  Petitioner laments that it should have sent the paper applications by certified mail.  I infer Petitioner’s point is that a certified mail return receipt would be evidence the applications were mailed.  But for purposes of summary judgment, I accept as true Petitioners assertion that it mailed the applications.  The problem for Petitioner is that the MAC processed to completion the application it received from Petitioner on August 29, 2024.  There is no evidence from which I can infer that the MAC received or processed to completion any Medicare revalidation enrollment application filed by Petitioner in June or July 2024.  The regulation is clear that 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.  42 C.F.R. § 424.540(d)(2). 

Petitioner argues that it is unable to bill for and receive reimbursements from Medicare for $2,000,000 in Medicare claims for services rendered during the gap period.  RFH at 1.  I accept this assertion as true for purposes of summary judgment.  A fact I also accept as true for purposes of summary judgment, is that Petitioner continued to respond to emergency calls and provide services to Medicare patients.  RFH at 2.  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. 

Petitioner’s arguments provide no grounds for relief. 

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III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is August 29, 2024.