Skip to main content


U.S. flag
      An official website of the United States government
              Here’s how you know
        Here’s how you knowDot gov**Official websites use .gov**
                 A **.gov** website belongs to an official government organization in the United States.
                  HTTPS**Secure .gov websites use HTTPS**
                 A **lock** (A locked padlock) or **https://** means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites. 
  Menu Close
          HHS Search block
    Search
        








  
  
    

  
      

                                      About HHS
    
                        
                              
      
      
      Programs & Services
    
                        
                              
      
      
      Grants & Contracts
    
                        
                              
      
      
      Laws & Regulations Breadcrumb
    Home
                              About
                              Agencies
                              DAB
                              Decisions
                              ALJ Decisions
                              2020
                              Hussam ElGohary, MD, APC, DAB CR5665 (2020)
 Navigate to:
  Departmental Appeals Board (DAB)
    
                                                  
                                                    
            
      
      
      
      About DAB
                                            
            
            Organizational Overview
    
                                                  
                              
            
      
      
      
      Who are the Judges?
    
                                                  
                              
            
      
      
      
      DAB Divisions
    
                                                  
                              
            
      
      
      
      Contact DAB
    
                                                  
                                                    
            
      
      
      
      Filing an Appeal Online
                                            
            
            DAB E-File
    
                                                  
                              
            
      
      
      
      Medicare Operations Division (MOD) E-File
    
                                                  
                                                    
            
      
      
      
      Different Appeals at DAB
                                            
            
            Appeals to DAB Administrative Law Judges (ALJs)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Procedures
    
                                                                
                                                    
            
      
      
      
      Appeals to Board
                          
            
            Practice Manual
    
                                                  
                              
            
      
      
      
      Guidelines
    
                                                  
                              
            
      
      
      
      Regulations
    
                                                  
                              
            
      
      
      
      National Coverage Determination Complaints
    
                                                                
                                                    
            
      
      
      
      Appeals to the Medicare Appeals Council (Council)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Fully Integrated Duals Advantage (FIDA) Demonstration Project
    
                                                  
                                                    
            
      
      
      
      Alternative Dispute Resolution Services
                                            
            
            Sharing Neutrals
    
                                                  
                              
            
      
      
      
      ADR Training
    
                                                  
                              
            
      
      
      
      Other ADR Services
    
                                                  
                                                    
            
      
      
      
      DAB Decisions
                                            
            
            Board Decisions
    
                                                  
                              
            
      
      
      
      DAB Administrative Law Judge (ALJ) Decisions
    
                                                  
                              
            
      
      
      
      Medicare Appeals Council (Council) Decisions
    
                                    
                              
            
      
      
      
      Stakeholder Feedback
    
                                                  
                                                    
            
      
      
      
      Careers
                                            
            
            Open Career Opportunities
    
                                                  
                              
            
      
      
      
      Internships & ExternshipsText resize icon

                    




Hussam ElGohary, MD, APC, DAB CR5665 (2020)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Hussam ElGohary, MD, APC,
	(NPI: 1164502365)
	(PTAN: EE797Y),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-18-525Decision No. CR5665July 27, 2020

        
              
    

      DECISION
Petitioner, Hussam ElGohary, MD, is a California physician.  He is the sole owner of his medical practice, Hussam ElGohary, MD, APC.1
  After his Medicare billing privileges were deactivated, the physician applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted his application, effective June 6, 2017, later revised to June 5, resulting in a coverage lapse from May 17 through June 4, 2017.  Petitioner now challenges that effective date and asks that the lapse in coverage be eliminated.
Because Petitioner ElGohary filed his subsequently-approved enrollment application on June 5, 2017, I find that June 5 is the earliest possible effective date for his enrollment.  *Howard M. Sokoloff, DPM, MS, Inc.*, DAB No. 2972 (2019); *Urology Grp. of NJ, LLC*, DAB No. 2860 (2018); *Willie Goffney, Jr., M.D.*, DAB No. 2763 at 7 (2017), *aff’d sub nom.* *Goffney v. Azar*, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).
Page 2
Background
In a notice dated July 26, 2017, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner that it approved his revalidated Medicare enrollment, although he was subject to a lapse in coverage from May 17 through June 5, 2017.  CMS Ex. 7.  Petitioner requested reconsideration.  *See* CMS Ex. 8.
In a reconsidered determination, dated December 6, 2017, the contractor changed the effective date from June 6 to June 5, with a coverage lapse from May 17 through June 4, 2017.  CMS Ex. 9.  Petitioner appealed.
CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  *See* Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4, 10) (February 13, 2018).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.
CMS submits its motion and brief (CMS Br.) with ten exhibits (CMS Exs. 1-10).  Petitioner submitted a letter (P.Br.) without any exhibits.  In the absence of any objections, I admit into evidence CMS Exs. 1-10.  *See* Acknowledgment and Pre-hearing Order at 5 (¶ 7).
Discussion
***Petitioner filed his subsequently-approved enrollment application on June 5, 2017, and his Medicare reactivated enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).***2
**Enrollment**.  Petitioner ElGohary participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors:  1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.
To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS-
Page 3
approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.3
  When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  For a physician, the effective date for billing privileges “is the *later*of the date of filing” a subsequently-approved enrollment application or “the date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).
**Revalidation and Deactivation**.  To maintain its billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of its enrollment information, a process referred to as “revalidation.”  42 C.F.R. § 424.515.  In addition to periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of its enrollment information.  42 C.F.R. § 424.515(d) and (e).  Within 60 days of receiving CMS’s notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).
If, within 90 days from receipt of CMS’s notice, the supplier does not furnish complete and accurate information and all supporting documentation or does not resubmit and certify the accuracy of its enrollment information, CMS may deactivate its billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3); 424.555(b).  To reactivate its billing privileges, the supplier must complete and submit a new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  *Sokoloff*, DAB No. 2972 at 6-7; *Urology Grp.*, DAB No. 2860 at 7; *Goffney*, DAB No. 2763 at 7.
I have no authority to review a deactivation.  *Sokoloff*, DAB No. 2972 at 6; *Ark. Health Grp*., DAB No. 2929 at 7-9 (2019).
**Petitioner’s deactivation and reenrollment**.  In a notice letter, dated January 13, 2017, the contractor directed Petitioner to revalidate his Medicare enrollment by no later than March 31, 2017, updating or confirming the information in his record.  The letter directed Petitioner to the PECOS website and explained that a supplier could revalidate through the PECOS system or by mailing to the contractor a completed CMS-855 Medicare enrollment application.  The letter warned that, if Petitioner failed to respond to the notice, his Medicare enrollment could be deactivated; the letter explained that, during the period of deactivation, Medicare would not pay for the services rendered.  CMS Ex. 1.
Page 4
On March 29, 2017, Petitioner filed his revalidation application (Form CMS-855I).  CMS Ex. 2.
In correspondence, dated April 12, 2017, the contractor acknowledged that it received Petitioner’s enrollment application; the letter directed Petitioner to revise his submissions and submit additional supporting documentation.  It warned that, if Petitioner failed to respond timely, his application could be rejected.  CMS Ex. 3.
The parties agree that Petitioner submitted to the contractor at least some corrections; however, the contractor determined that his submissions were inadequate, and, in an email and letter, dated May 17, 2017, advised Petitioner that it rejected his application.  CMS Exs. 4, 5.  I have no authority to review a rejected application.  *Wishon Radiological Med. Grp., Inc.*, DAB No. 2941 at 6-7 (2019); *James Shepard, M.D.*, DAB No. 2793 at 8 (2017).
On *June 5, 2017*, Petitioner ElGohary filed his Medicare reenrollment application, which the contractor subsequently approved.4
  CMS Ex. 6.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – June 5, 2017 – is the correct effective date of enrollment.  *Sokoloff*, DAB No. 2972 at 6-7; *Urology Grp.*, DAB No. 2860 at 7-9; *Goffney*, DAB No. 2763 at 7.
I have no authority to grant Petitioner an earlier effective date based on any equitable or policy arguments.  *Sokoloff*, DAB No. 2972 at 9.
Conclusion
Because Petitioner ElGohary filed his subsequently-approved reenrollment application on June 5, 2017, CMS properly granted his Medicare reenrollment effective that date.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. Although this matter has been captioned as the practice’s appeal, in fact, Petitioner ElGohary appeals the effective date of his individual reactivation.  CMS Exs. 1, 5, 9; see CMS Br. at 2 n.1. back to note 1
                      2. I make this one finding of fact/conclusion of law. back to note 2
                      3. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System). back to note 3
                      4. Medicare contractors stamp paper applications with a “Julian date stamp,” which counts the days of the year consecutively.  Here, the first two digits stamped on the application (upper left corner) indicate the year – 2017.  The next three digits indicate the date – the 156th day of 2017, or June 5, 2017.  CMS Ex. 6 at 1. back to note 4 Back to top
    Contact HHS
    
                        
                                            
      
      
      Careers
    
                        
                                            
      
      
      HHS FAQs
    
                        
                                            
      
      
      Nondiscrimination NoticeHHS Archive
    
                        
                                            
      
      
      Accessibility Statement
    
                        
                                            
      
      
      Privacy Policy
    
                        
                                            
      
      
      Viewers & PlayersBudget/Performance
    
                        
                                            
      
      
      Inspector General
    
                        
                                            
      
      
      Web Site Disclaimers
    
                        
                                            
      
      
      EEO/No Fear ActFOIA
    
                        
                                            
      
      
      The White House
    
                        
                                            
      
      
      USA.gov
    
                        
                                            
      
      
      Vulnerability Disclosure Policy
        Sign Up for Email Updates

Receive the latest updates from the Secretary, Blogs, and News Releases.

Sign Up
  HHS Headquarters
          200 Independence Avenue, S.W.
                  Washington, D.C. 20201
                  Toll Free Call Center: 1-877-696-6775​ Disclaimer Policy: Links with this icon () mean that you are leaving the HHS website. The Department of Health and Human Services (HHS) cannot guarantee the accuracy of a non-federal website.
                  Linking to a non-federal website does not mean that HHS or its employees endorse the sponsors, information, or products presented on the website. HHS links outside of itself to provide you with further information.
                  You will be bound by the destination website's privacy policy and/or terms of service when you follow the link.
                  HHS is not responsible for Section 508 compliance (accessibility) on private websites. For more information on HHS's web notification policies, see Website Disclaimers.
 Continue
                  Go back