Ellyn Smith, MD, DAB No. 3233 (2026)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Ellyn Smith, MD (Petitioner) appeals the January 15, 2025 decision of an Administrative Law Judge (ALJ), which upheld a determination by the Centers for Medicare & Medicaid Services (CMS) that January 10, 2024, is the correct effective date for the reassignment of Petitioner’s Medicare billing privileges.  Ellyn Smith, DAB CR6604 (ALJ Decision).  For the reasons explained below, we summarily affirm the ALJ Decision.

Legal Background

A supplier of Medicare services, such as a physician, must enroll in the Medicare program to obtain Medicare “billing privileges,” i.e., the right to receive payment for Medicare-covered items and services furnished to Medicare beneficiaries.  42 C.F.R. §§ 400.202, 424.500, 424.502, 424.505.1  To enroll, a supplier must complete and submit to CMS either the correct enrollment application or an approved electronic submission.  Id. §§ 424.502, 424.510(a)(1), (d)(1).  The enrollment process includes identifying the supplier, validating the supplier’s eligibility to provide items or services to Medicare beneficiaries, identifying and confirming the supplier’s practice locations and owners, and granting the supplier privileges to bill Medicare for reimbursement for the items or services provided.  Id. § 424.502.

The effective date of billing privileges is “the laterof . . . [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor” or “[t]he date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d)(1).  The “date of filing” means “the date that the Medicare . . . contractor receives a signed . . . enrollment application that the . . . contractor is able to process to approval.”  73 Fed. Reg. 69,726, 69,766-67 (Nov. 19, 2008); see Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730, at 5 (2016).  A

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supplier with an approved enrollment application “may retrospectively bill for services” that were provided up to 30 days (and, in certain disaster situations, up to 90 days) before the supplier’s “effective date,” if certain circumstances are satisfied.  42 C.F.R. § 424.521(a).  This 30-day period is commonly called the retrospective billing period.

Reassignment of a supplier’s Medicare billing privileges (also referred to as physician benefits) is permitted in specified circumstances, such as where the reassignment is to an employer or other entity pursuant to a contractual agreement under which the entity bills Medicare for the supplier’s services.  42 C.F.R. § 424.80(a), (b).  To reassign benefits, a physician must submit, and obtain CMS’s approval of, a type of Medicare enrollment application called Form CMS-855R.  71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006); see also Gaurav Lakhanpal, MD, DAB No. 2951, at 1-2 (2019).  When CMS approves a reassignment of benefits under section 424.80, the reassignment “is effective beginning 30 days before the Form CMS-855R is submitted if all applicable requirements during that period were otherwise met.”  42 C.F.R. § 424.522(a).

CMS may deactivate the billing privileges of a supplier for various reasons, including failure to “report a change to the information supplied on the enrollment application within the applicable time period required under this title.”  42 C.F.R. § 424.540(a)(2).  “Deactivate” means that the “supplier’s billing privileges were stopped, but can be restored upon the submission of updated information.”  Id. § 424.502.  CMS is not permitted to reimburse a supplier for any covered items or services that the supplier provides while its billing privileges are deactivated.  Id. §§ 424.540(e), 424.555(b).  To reactivate billing privileges, a supplier must submit a new enrollment application, or in some cases recertify that its enrollment information currently on file with Medicare is correct.  Id. § 424.540(b).

The determination of the effective date of billing privileges is an “initial determination” that the supplier may appeal under the procedures at 42 C.F.R. Part 498.  42 C.F.R. § 498.3(a)(1), (b)(15).  A supplier may ask CMS to reconsider the effective date and may challenge the reconsidered determination by requesting a hearing before an ALJ.  Id. § 498.5(l)(1), (2).  A supplier dissatisfied with a hearing decision by the ALJ may request review by the Board.  Id. §§ 498.5(f)(1), 498.82(a).  However, the deactivation of Medicare billing privileges is not an “initial determination” under section 498.3(b) and is not reviewable by ALJs or the Board.  See Ark. Health Group, DAB No. 2929, at 9 (2019) (citing cases).  A supplier whose billing privileges are deactivated instead may file a “rebuttal” with the CMS contractor in accordance with the regulations at sections 424.545(b) and 405.374(a).

A supplier requesting Board review of an ALJ decision “must specify the issues, the findings of fact or conclusions of law with which the party disagrees, and the basis for contending that the findings and conclusions are incorrect.”  42 C.F.R. § 498.82(b).  These same content requirements are stated in the Board’s appellate guidelines, see

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Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (“Guidelines”), “Starting the Review Process,” ¶ (d).2  The Guidelines further state:

The Board expects that the basis for each challenge to a finding or conclusion in the ALJ decision or dismissal will be set forth in a separate paragraph or section, and that the accompanying arguments will be concisely stated.  In addition, where appropriate, each argument should be supported by precise citations to the record and/or by precise citations to statutes, regulations or other relevant authorities upon which you are relying.

Id.

Case Background3

Petitioner is a physician who is enrolled in Medicare as a supplier.  ALJ Decision at 2; CMS Ex. 8, at 1.  Petitioner reassigned her billing privileges to a group practice called Anaheim Surgical Associates (Anaheim Surgical) in August 2021 and began providing services for Anaheim Surgical starting October 6, 2021.  ALJ Decision at 3; CMS Ex. 3.  Effective May 1, 2023, Noridian Healthcare Solutions (Noridian), a CMS contractor, deactivated Anaheim Surgical’s billing privileges pursuant to 42 C.F.R. § 424.540(a)(2), due to failure to report the death of “a/an partner, authorized official, and director/officer.”  CMS Ex. 5.  Petitioner’s Enrollment Record Summary indicates that her reassignment of benefits to Anaheim Surgical was terminated on the same date as Anaheim Surgical’s deactivation.  CMS Ex. 8, at 4.  Anaheim Surgical later submitted a reactivation enrollment application, and on July 10, 2023, Noridian notified Anaheim Surgical that its reactivation was approved effective May 10, 2023.  CMS Ex. 7; ALJ Decision at 3.  On February 9, 2024, Petitioner electronically submitted a Form CMS-855R application to reassign benefits to Anaheim Surgical.  CMS Ex. 1, at 1.

By notice dated February 26, 2024, Noridian informed Petitioner of its initial determination that it approved her February 9, 2024 application, with a reassignment effective date” of January 10, 2024.  CMS Ex. 2, at 1.  Petitioner requested reconsideration, asking for the effective date of reassignment to be changed to May 10, 2023, i.e., the effective date of Anaheim Surgical’s reactivated enrollment.  CMS Ex. 3.  Petitioner stated that she “ha[d] been continuously providing services since October 06,

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2021,” and neither she nor Anaheim Surgical was notified that her reassignment of benefits to Anaheim Surgical was terminated on May 1, 2023, the date that Anaheim Surgical’s billing privileges were deactivated.  Id.  Petitioner also stated that due to “an oversight, it was not noted that I was not listed among the providers reassigning benefits with [Anaheim Surgical’s] new enrollment.”  Id.  Anaheim Surgical was not a party to this request or to any subsequent administrative proceedings.

In a reconsidered determination, Noridian affirmed the initial determination.  Noridian concluded that in accordance with the terms of section 424.522(a), a reassignment of benefits is effective 30 days before the date of receipt of the supplier’s reassignment application, and thus January 10, 2024 (30 days before Petitioner submitted her Form CMS-855R) is the earliest possible effective date of Petitioner’s reassignment.  CMS Ex. 4, at 2.  In response to Petitioner’s “statement that no notice was received concerning the provider’s reassignment termination,” the reconsidered determination stated:  “A group member’s reassignment to a group cannot exist if a group enrollment does not exist”; “when a group enrollment is deactivated, all group member reassignments are also deactivated”; and “[t]he group’s own deactivation should be considered notice that any group member reassignments are also terminated.”  Id.

ALJ Proceeding and Decision

In a one-page request for hearing (RFH), Petitioner did not argue that Noridian erroneously applied 42 C.F.R. § 424.522 in determining that January 10, 2024, is the effective date of Petitioner’s reassignment of benefits.  Petitioner stated only the following:

I Ellyn Smith MD is requesting an appeal for reconsideration received by Noridian to a reactivation effective date determination. The decision was unfavorable for [sic] Noridian. We do not agree with the outcome and would please further appeal rights through ALJ for reconsideration of this decision.

Id.

CMS filed a motion for summary judgment and prehearing brief (CMS Prehearing Br.) and eight exhibits, arguing that Noridian correctly applied section 424.522(a) in determining Petitioner’s reassignment effective date.  CMS Prehearing Br. at 2, 7-8.  CMS also contended that Petitioner’s challenge was based only on questions of fairness, such as allegedly not being sent notice of termination of her reassignment of benefits in May 2023.  CMS argued that ALJs and the Board have no authority to disregard clear regulatory requirements based on equitable concerns.  Id. at 9-11.  In response to CMS’s submission, Petitioner did not file a brief, as requested by the ALJ, and instead submitted an identical copy of her March 2024 request for reconsideration with no other documents.

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The ALJ admitted, without objection, CMS’s eight exhibits and issued a decision based on the written record, effectively making CMS’s motion for summary judgment moot.  ALJ Decision at 2.  The ALJ upheld Noridian’s determination regarding the effective date of Petitioner’s reassignment of billing privileges.  Id.  The ALJ reached one “finding of fact/conclusion of law,” which was that “[o]n February 9, 2024, Petitioner filed her subsequently-approved application to reassign benefits; her reassignment of benefits was therefore effective 30 days earlier – on January 10, 2024.  42 C.F.R. §§ 424.522(a).”  Id. (emphasis removed); see also id. at 3 (“Pursuant to section 424.522(a), the reassignment of Petitioner’s benefits is effective beginning 30 days before she submitted Form CMS-855R – in this case, on January 10, 2024.”).

The ALJ also rejected Petitioner’s arguments that (1) she was not individually notified that the deactivation of Anaheim Surgical’s enrollment caused her reassignment to be terminated, and (2) due to an “oversight” “she was not listed among the suppliers who would be reassigning benefits.”  ALJ Decision at 3 (citing CMS Ex. 3).  The ALJ explained that Petitioner’s complaint “pertains to the deactivation of [Anaheim Surgical’s] billing privileges” and “[n]o matter how compelling the circumstances, I have no authority to review a deactivation.”  Id. (citing Ark. Health Grp. at 7-9).  The ALJ also stated that ALJs may not grant relief to parties based on equitable arguments.  Id. (citing Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972, at 9 (2019)).

Board Proceedings

Petitioner timely requested review of the ALJ Decision, submitting the following documents:  (1) a completed “Form DAB-101;”4 (2) a completed form appointing Anaheim Surgical’s office manager as Petitioner’s representative; (3) a copy of the ALJ Decision; and (4) another copy of the request for reconsideration Petitioner submitted on March 6, 2024.  DAB E-File Dkt. No. A-25-37, Doc. #1.  Petitioner does not identify any basis for challenging the ALJ’s findings of fact or legal conclusion upholding the effective date of Petitioner’s reassignment of benefits.  Instead, Petitioner provides the following:

Even though we gave a complete and legitimate reason of why we are requesting to change effective date the ALJ stated they have no authority to review a deactivation. Nor may the grant petitioner relief based on her equitable arguments.

Dkt. No. A-25-37, Doc. #1, at 1.

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CMS filed a response brief arguing that under the undisputed facts the ALJ properly upheld January 10, 2024, as the effective date of Petitioner’s reassignment of benefits.  CMS Resp. Br. at 2, 6-8, 13.  CMS asserts that Petitioner has not directly addressed the regulatory analysis underlying that conclusion, before the ALJ or the Board, which “alone is sufficient to demonstrate that the reconsidered determination should be affirmed.”  Id. at 11.  CMS also argues that the ALJ Decision “was free of error” and the Board “has no authority to review Petitioner’s deactivation or the circumstances surrounding it” or “to grant Petitioner an earlier effective date based on equitable and policy arguments.”   Id. at 13.  Petitioner was on notice of the opportunity to file a reply brief but did not file one.

Standard of Review

The standard of review on a disputed factual issue is whether the ALJ’s decision is supported by substantial evidence in the record as a whole.  The standard of review on a disputed issue of law is whether the ALJ’s decision is erroneous.  See Duke Ahn, M.D., DAB No. 3093, at 7 (2023); Guidelines, “Completion of the Review Process,” ¶ (c).

Analysis

We summarily affirm the ALJ Decision because Petitioner’s request for review fails to identify or articulate any legal or factual error by the ALJ.

The regulations are clear that a request for Board review of an ALJ decision “must specify the issues, the findings of fact or conclusions of law with which the party disagrees, and the basis for contending that the findings and conclusions are incorrect.”  42 C.F.R. § 498.82(b).  The Board’s Guidelines unmistakably state that the Board “expects that the basis for each challenge to a finding or conclusion in the ALJ decision or dismissal will be set forth in a separate paragraph or section, and that the accompanying arguments will be concisely stated.”  Guidelines, “Starting the Review Process,” ¶ (d).

When a party’s submission fails to conform to these requirements, “the Board may summarily affirm a factual or legal finding if a party’s presentation of an issue regarding that finding is such that the Board cannot discern the legal or factual basis for the party’s disagreement with it.”  Arthur L. Jenkins, III, M.D. & Jenkins NeuroSpine LLC, DAB No. 3070, at 7 (2022) (quoting Wisteria Care Ctr., DAB No. 1892, at 7 (2003)); see also Yakup Akyol, DAB No. 3017, at 4 (2020) (summarily affirming the ALJ’s conclusion regarding the effective date of Medicare enrollment when the petitioner failed to articulate any basis for challenging that conclusion).  “Failure to articulate at least some disagreement with the bases for the ALJ decision permits the Board to summarily affirm the ALJ’s findings of fact and conclusions of law.”  Amber Mullins, N.P., DAB No. 2729, at 5 (2016).

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On review of a determination of the effective date of reassignment of billing privileges, an ALJ decides only whether CMS established a lawful basis for the effective date.  Here, the ALJ determined that 42 C.F.R. § 424.522(a) mandates an “effective date” of reassignment of billing privileges of January 10, 2024, because that date is 30 days before the date Petitioner submitted its later-approved reassignment application.  ALJ Decision at 2-3.  Petitioner does not specify any factual or legal basis for contending that the ALJ’s findings and conclusions are incorrect.  Petitioner does not contend that the ALJ based her conclusion on unsupported factual findings, specifically, the finding that Noridian received, and later processed to approval, Petitioner’s reassignment application filed on February 9, 2024.  Petitioner also does not argue that the ALJ misapplied or failed to apply the applicable law, specify why January 10, 2024, is not the proper reassignment effective date, or otherwise explain why she thinks reassignment could lawfully take effect on an earlier date.

Petitioner wrote just two sentences in her request for review, asserting that she “gave [the ALJ] a complete and legitimate reason” for requesting a different effective date, and summarizing the ALJ’s statement that she had “no authority to review a deactivation” or grant relief “based on her equitable arguments.”  Doc. #1, at 1.  But disagreeing with the outcome falls well short of specifying any basis for disagreement with the ALJ’s conclusion regarding the correct effective date of reassignment.  Even if we were to construe Petitioner’s statements as a general challenge to the ALJ’s holdings regarding the reviewability of deactivations and equitable arguments, Petitioner does not articulate how she thinks the ALJ’s statements are incorrect, nor why Petitioner thinks the Board may consider equitable arguments.  Still further, any such arguments would be unavailing.  The Board has consistently held that it and ALJs “are bound by the applicable regulations and cannot alter an effective date based on principles of equity.”  Tosan Fregene, M.D. & Oncology Clinics, Inc., DAB No. 3018, at 8 (2020); see also Lakhanpal, DAB No. 2951, at 7-8.  Moreover, ALJs and the Board may not review deactivations of billing privileges and a party may challenge a deactivation only by filing a “rebuttal” with the contractor in accordance with 42 C.F.R. § 405.374.  Chaplin Liu, MD, DAB No. 2976, at 3 (2019).  This is especially so here, where the enrollment deactivation at issue concerned Anaheim Surgical, which has not been a party at any stage of these administrative proceedings.

In short, Petitioner’s request for review provides the Board with no adequate basis to review the ALJ Decision.  Absent any specified exception to the ALJ’s findings of fact or conclusions of law, and absent any argument from Petitioner articulating how she thinks the ALJ erred, the Board summarily affirms the ALJ’s conclusion regarding the effective date of Petitioner’s reassignment of billing privileges.

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Conclusion

The Board affirms the ALJ Decision upholding CMS’s determination that January 10, 2024, is the correct effective date of the reassignment of Petitioner’s billing privileges under 42 C.F.R. § 424.522(a).