Health Law Daily Wrap Up, ADMINISTRATION OF MEDICARE/MEDICAID PROGRAMS—DAB DECISIONS: Denial of Medicare enrollment affirmed in decision discussing potential for non-emergency ambulance services, (Jan 23, 2026)

By Justin Marcus Smith, J.D.

The Medicare program does not categorically exclude coverage for “non-emergent transportation services.”

A state-licensed ambulette company (petitioner) did not qualify for Medicare enrollment, affirmed an administrative law judge (ALJ) assigned to hear the matter for the Departmental Appeals Board of the United States Department of Health & Human Services. The ALJ clarified that the stated basis for enrollment denial was misleading, albeit technically accurate. The ALJ explained that the correct basis for denial of enrollment was that the petitioner did not claim, and it did not show, that it satisfied Medicare requirements for ambulances that provide non-emergency medical transportation. The ALJ also analyzed how the ambulette company timely appealed denial of Medicare enrollment in the context of a reconsidered determination vacated for scrivener’s error (Reliance Care Enterprise, LLC, DAB No. CR6585, Docket No. C-24-707 (Dec. 11, 2024)).

Background. A Nevada non-emergency medical transport service provider (petitioner), commonly referred to as an ambulette service, applied to enroll in the Medicare program. The assigned Medicare administrative contractor (MAC) denied enrollment on the basis that companies providing non-emergency medical transportation are not eligible for Medicare program participation. On reconsideration, the MAC affirmed denial of enrollment, but it cited the wrong regulation, a regulation that applies to entities convicted of felonies. Petitioner appealed, and the Centers for Medicare and Medicaid Services (CMS) moved to dismiss.

While the appeal was pending, the contractor vacated its erroneous reconsideration determination and issued a revised one that cited the correct regulation, 42 C.F.R. § 424.530(a)(1). The revised determination was otherwise virtually identical.

Appeal timely. The administrative law judge (ALJ) assigned to hear the appeal denied the CMS motion to dismiss because the petitioner re-filed its request for a hearing before an ALJ well within the 60-day deadline for appealing the MAC’s revised, reconsidered determination.

CMS argued the petitioner had no right to further review because it appealed a vacated determination. The ALJ analyzed that CMS, without saying so, implied the petitioner had no right to appeal the revised reconsideration determination, the one that corrected the scrivener’s error, because it did not timely appeal that one.

The ALJ disagreed with CMS and held the petitioner was entitled to review of the revised reconsideration because: (1) petitioners, especially pro se petitioners, should not be unfairly denied review; (2) the revised reconsideration merely corrected an obvious scrivener’s error; (3) the revised reconsideration called for consolidation if the petitioner timely appealed; and (4) the petitioner here did, in fact, timely appeal when it re-filed its original hearing request.

Enrollment denial affirmed. Turning to the substance of the appeal, the ALJ affirmed denial of enrollment because the petitioner did not show or even claim that its service met the Medicare regulatory requirements for ambulances.

The ALJ continued that the reconsidered determination may have been technically accurate but “a bit misleading” as to the stated reasoning that Medicare excludes “non-emergent transportation services.” The ALJ reasoned that the Medicare statute lists medical and other services that may indeed qualify for Medicare coverage, including ambulance services, where other methods of transportation are contra-indicated by the individual’s condition and “to the extent provided in regulations.” 42 U.S.C. § 1395x(s)(7); 42 C.F.R. §§ 410.10(i), 410.40, 410.41. That includes some non-emergency transport services like non-emergency “basic life support” and non-emergency “advanced life support.” 42 C.F.R. § 410.40(c). Special rules address scheduled, repetitive and non-scheduled, non-repetitive ambulance services. 42 C.F.R. § 410.40(e)(2) and (3). However, the supplier must meet specific vehicle and other reporting requirements for ambulances. See, e.g., 42 C.F.R. §§ 410.40(a), 410.41.

Although the State of Nevada certified the petitioner to provide non-emergency medical transportation, it did not call itself an ambulance or meet any of the Medicare regulatory requirements for ambulances. Accordingly, it was not eligible for Medicare enrollment. MACs can deny prospective suppliers who do not meet enrollment requirements. The ALJ therefore affirmed denial of enrollment.

The ALJ footnoted that the Nevada Medicaid agency might certify the petitioner to provide nonemergency medical transportation to Medicaid beneficiaries. See 42 C.F.R. § 431.53.

The petitioner requested, in the alternative, return of its $709 application fee, but the ALJ ruled it did not have authority to order fee return. See 42 C.F.R. § 498.3(b).

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