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                              Tactical Rehabilitation, Inc., DAB CR5272 (2019)
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Tactical Rehabilitation, Inc., DAB CR5272 (2019)








  
  
    

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





Tactical Rehabilitation, Inc.,
	(NPI: 1023451291 / PTAN: 6957360001),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-18-387Decision No.  CR5272March 18, 2019

        
              
    

      DECISION
The Medicare enrollment and billing privileges of Petitioner, Tactical Rehabilitation, Inc., are revoked pursuant to 42 C.F.R. §§ 424.57(e) and 424.535(a)(1)1
 based on noncompliance with 42 C.F.R. § 424.57(c)(1) and (2) (Supplier Standards 1 and 2).2
 Revocation is effective June 15, 2017. 42 C.F.R. § 424.535(g).
**Page 2**
I. Procedural History and Jurisdiction
On May 16, 2017, Palmetto GBA (Palmetto) notified Petitioner that Petitioner's Medicare enrollment and billing privileges were revoked effective June 15, 2017. Palmetto cited 42 C.F.R. §§ 405.800, 424.57(e), and 424.535(a)(1) and (g),3
 as the legal authority for the revocation based on violations of 42 C.F.R. § 424.57(c)(1), (2), (10), (17), and (22) (Supplier Standards 1, 2, 10, 17, and 22). Palmetto notified Petitioner that it was subject to a one-year bar to re-enrollment pursuant to 42 C.F.R. § 424.535(c). Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 56-59, 100-107.
Petitioner submitted a Corrective Action Plan (CAP) dated June 7, 2017. CMS Ex. 1 at 52‐87, 108-75. Petitioner also filed with Palmetto a CMS-855S, a Medicare enrollment application for suppliers of durable medical equipment, prosthetics, orthotics and supplies (DMEPOS), dated June 5, 2017. CMS Ex. 1 at 148-75. Petitioner certified in the CMS-855S that it only supplied DMEPOS in Virginia. CMS Ex. 1 at 156, 173. On July 31, 2017, Palmetto notified Petitioner that it determined Petitioner corrected the violations of 42 C.F.R. § 424.57(c)(10), (17), and (22) (Supplier Standards 10, 17, and 22). However, Palmetto determined that Petitioner continued to be in violation of 42 C.F.R. § 424.57(c)(1) and (2) (Supplier Standards 1 and 2). CMS Ex. 1 at 46-51, 176-81.
Petitioner timely requested reconsideration on August 28, 2017. CMS Ex. 1 at 7-8. Petitioner also filed with Palmetto another CMS-855S dated August 29, 2017. CMS Ex. 1 at 18-45. Petitioner certified in the new CMS-855S that it supplied DMEPOS in Virginia and California. CMS Ex. 1 at 26, 44.
On October 25, 2017, a Palmetto hearing officer issued a reconsidered determination in which she upheld revocation of Petitioner's Medicare enrollment and billing privileges based on violations of 42 C.F.R. § 424.57(c)(1)  and (2) (Supplier Standards 1 and 2). CMS Ex. 1 at 1-6. The re-enrollment bar, which was the minimum one year, was unchanged. My review in this case is limited to the bases for revocation upheld in the reconsidered determination. *Neb Grp. of Ariz. LLC*, DAB No. 2573 at 7; 42 C.F.R. § 498.5(*l*)(2).
**Page 3**
Petitioner requested a hearing before an administrative law judge (ALJ) on December 20, 2017 (RFH)4
.  The case was assigned to me for hearing and decision on January 11, 2018, and an Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction. Petitioner's request for hearing was timely and I have jurisdiction.
On February 12, 2018, CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 3. On March 10, 2018, Petitioner filed the affidavit of its President, David Marr, which I treat as Petitioner's exhibit (P. Ex. 1). Petitioner also filed a brief opposing the CMS motion for summary judgment (P. Br.). On March 30, 2018, CMS waived a reply brief. No objections have been made to my consideration of CMS Exs. 1 through 3 and P. Ex. 1, and they are admitted and considered as evidence.
II. Discussion
**A. Applicable Law**
Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B. Administration of the Part B program is through contractors, such as Palmetto. Act § 1842(a) (42 U.S.C. § 1395u(a)). Only eligible providers of services and suppliers may enroll in Medicare to receive payments for services rendered to Medicare-eligible beneficiaries.5
 Act §§ 1834(j)(1) (42 U.S.C. § 1395m(j)(1)); 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). Petitioner is a DMEPOS supplier.
**Page 4**
The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for the enrollment in Medicare of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations such as revocation of enrollment and billing privileges. Act § 1866(j) (42 U.S.C. § 1395cc(j)).
Pursuant to 42 C.F.R. §§ 424.57 and 424.505, a DMEPOS supplier such as Petitioner must be enrolled in the Medicare program to be reimbursed for DMEPOS sold or rented to Medicare beneficiaries. The regulations establish detailed requirements that suppliers must meet and maintain to enroll in Medicare and to receive and maintain Medicare billing privileges. 42 C.F.R. pt. 424, subpt. P. DMEPOS suppliers have additional requirements imposed by 42 C.F.R. § 424.57(b) and (c). To receive direct-billing privileges, a DMEPOS supplier must meet and maintain the Medicare application certification standards set forth in 42 C.F.R. § 424.57(c). Among other requirements, a DMEPOS supplier must operate and furnish Medicare-covered items in compliance with all applicable federal and state licensure and regulatory requirements. 42 C.F.R. § 424.57(c)(1). A DMEPOS supplier must also provide complete and accurate information in response to questions on its application for Medicare billing privileges and must report to CMS any changes in information supplied on the application within 30 days of the change. 42 C.F.R. §§ 424.57(c)(2); 424.516(c).
The Secretary has delegated authority to CMS or its Medicare contractor to revoke an enrolled supplier's Medicare enrollment and billing privileges and any supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535. Noncompliance with enrollment requirements established by 42 C.F.R. § 424.57(b) and (c) for DMEPOS suppliers is also a basis for revocation of billing privileges and enrollment in Medicare pursuant to 42 C.F.R. § 424.57(e)(1). Generally, when CMS revokes a supplier's Medicare billing privileges for not complying with enrollment requirements, the revocation is effective 30 days after CMS or its contractor mails notice of its determination to the supplier. 42 C.F.R. §§ 405.800(b)(2); 424.57(e)(1); 424.535(g). After a supplier's Medicare enrollment and billing privileges are revoked, the supplier is barred from reenrolling in the Medicare program for one to three years. 42 C.F.R. § 424.535(c).
A supplier whose enrollment and billing privileges have been revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498. 42 C.F.R. §§ 405.803; 424.545. A supplier submits a written request for reconsideration to CMS or its contractor. 42 C.F.R. § 498.22(a). CMS or its contractor must give notice of its reconsidered determination to the supplier, giving the reasons for its determination and specifying the conditions or requirements the supplier failed to meet, and advising the supplier of its right to an ALJ hearing. 42 C.F.R. § 498.25. If the decision on reconsideration is unfavorable to the supplier, the supplier has the right to request a
**Page 5**
hearing by an ALJ and further review by the Departmental Appeals Board (the Board. Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545; 498.3(b)(17); 498.5(*l*)(2). CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied. 42 C.F.R. § 498.5(*l*)(2). A hearing on the record, also known as an oral hearing, is required under the Act. *Crestview Parke Care Ctr. v. Thompson*, 373 F.3d 743, 748-51 (6th Cir. 2004). The supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records. 42 C.F.R. § 424.545(c). A supplier or provider whose enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(1) also has the right to submit one CAP. Denial of a CAP, which is also a denial of reinstatement of a provider's or supplier's billing privileges, is not an initial determination and there is no right to ALJ or Board review of the denial under 42 C.F.R. pt. 498. 42 C.F.R. § 405.809(b)(2).
**B. Issue**
Whether summary judgment is appropriate; and
Whether there was a basis for the revocation of Petitioner's billing privileges and Medicare enrollment.
**C. Findings of Fact, Conclusions of Law, and Analysis**
**1. Summary judgment is appropriate.**
CMS filed a motion for summary judgment that Petitioner opposes.
A provider or supplier denied enrollment in Medicare or whose enrollment has been revoked has a right to a hearing and judicial review pursuant to sections 1866(h)(1) and (j) of the Act and 42 C.F.R. §§ 498.3(b)(1), (5), (6), (8), (15), (17); 498.5. A hearing on the record, also known as an oral hearing, is required under the Act. Act §§ 205(b), 1866 (h)(1) and (j)(8); *Crestview*, 373 F.3d at 748-51. A party may waive appearance at an oral hearing but must do so affirmatively in writing. 42 C.F.R. § 498.66. In this case, Petitioner has not waived the right to oral hearing or otherwise consented to a decision based only upon the documentary evidence or pleadings. Accordingly, disposition on the written record alone is not permissible, unless the CMS motion for summary judgment has merit.
Summary judgment is not automatic upon request but is limited to certain specific conditions.  The Secretary's regulations that establish the procedure to be followed in adjudicating Petitioner's case are at 42 C.F.R. pt. 498. 42 C.F.R. §§ 405.800; 405.803(a); 424.545(a); 498.3(b)(5), (6), (15), (17). The regulations do not establish a summary judgment procedure or recognize such a procedure. However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated
**Page 6**
pursuant to 42 C.F.R. pt. 498. *See, e.g.*, *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 also has recognized that the Federal Rules of Civil Procedure (Fed. R. Civ. Pro.) do not apply in administrative adjudications such as this but the Board has accepted that Fed. R. Civ. Pro. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order.  The parties were given notice by the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. Pro. 56 will be applied.  Prehearing Order ¶¶ II.D & G.
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. The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor. Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven. *Mission Hosp. Reg'l Med. Ctr.*, DAB No. 2459 at 4 (2012) (and cases cited therein); *Experts Are Us, Inc.*, DAB No. 2452 at 4 (2012) (and cases cited therein); *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300 at 3 (2010) (and cases cited therein); *see also Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 248 (1986).
The standard for deciding a case on summary judgment and an ALJ's decision-making in deciding a summary judgment motion differs from that used in resolving a case on the merits after a hearing or when hearing is waived. On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record. Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true. *Holy Cross Vill. at Notre Dame, Inc.*, DAB No. 2291 at 5 (2009). The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party's evidence would be sufficient to meet that party's evidentiary burden. *Dumas Nursing & Rehab., L.P.*, DAB No. 2347 at 5 (2010). The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden. However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498. *Batavia Nursing & Conv.*
**Page 7**
*Ctr.*, DAB No. 1904 (2004), *aff'd*,*Batavia Nursing & Conv. Ctr. v. Thompson*, 129 Fed. App'x 181 (6th Cir. 2005).
I conclude that there is no genuine dispute as to any material fact pertinent to revocation pursuant to 42 C.F.R. §§ 424.57(e) and 424.535(a)(1) that requires a trial in this case. Petitioner does not dispute that it furnished DMEPOS items in a state in which it was not licensed. Petitioner also does not dispute that it failed to disclose to Palmetto and CMS all of the states in which Petitioner furnished DMEPOS items. This case is resolved based on application of the regulations to the undisputed facts as discussed hereafter. Accordingly, summary judgment is appropriate.
**2. Petitioner violated 42 C.F.R. § 424.57(c)(1) (Supplier Standard 1).**
**3. Petitioner violated 42 C.F.R. § 424.57(c)(2) (Supplier Standard 2).**
**4. There is a basis for revocation of Petitioner's enrollment and billing privileges pursuant to****42 C.F.R. §§ 424.57(e) and 424.535(a)(1).**
**5. The effective date of revocation of Petitioner's enrollment and billing privileges is determined pursuant to 42 C.F.R. § 424.57(e) and is****June 15, 2017****, which is 30 days after the date of the****May 16, 2017****notice of the Palmetto initial determination to revoke.**
**a. Facts**
The material facts are not disputed and any inferences are drawn in Petitioner's favor on summary judgment.
1. In 2013, Petitioner enrolled in Medicare as a supplier providing DMEPOS from its office in Vero Beach, Florida. CMS Ex. 2 at 8, 11; CMS Br. at 3; P. Br. at 2.
2. Petitioner certified in its initial enrollment CMS-855S dated October 30, 2013, that it would only be providing DMEPOS in Florida. CMS Ex. 2 at 8, 28.
3. In December 2016, Petitioner moved its DMEPOS business to Hopewell, Virginia.6
**Page 8**
4. Petitioner notified Palmetto and CMS of the move to Virginia by filing a CMS-855S signed February 2, 2017, in which Petitioner certified it would only be providing DMEPOS in Virginia. CMS Ex. 3 at 8-10, 26.
5. Petitioner does not deny that in 2015, 2016, and 2017, it billed Medicare for DMEPOS items furnished in California, North Carolina, and states other than Florida or Virginia. Petitioner admits that in 2014 it provided as many as 14 pieces of equipment without meeting California registration requirements. CMS Ex. 1 at 93-97; P. Ex. 1; P. Br.; RFH at 1, 123.
6. Petitioner does not deny that from its initial enrollment in 2013 to February 2, 2017, it did not notify Palmetto or CMS by filing a CMS-855S, that it was providing DMEPOS in any state other than Florida.
7. Petitioner filed with Palmetto a CMS-855S dated August 29, 2017. CMS Ex. 1 at 18-45. Petitioner certified in the new CMS-855S that it supplied DMEPOS in Virginia and California. CMS Ex. 1 at 26, 44.
8. Petitioner does not deny that from February 2, 2017 to the initial determination to revoke, Petitioner did not notify Palmetto or CMS by filing a CMS-855S, that it was providing DMEPOS in any states other than Virginia.
9. Petitioner does not deny that it provided DMEPOS in California before it obtained a California license in 2017. RFH at 1, 23, 123; CMS Ex. 1 at 61.
10. Petitioner had a license to dispense devices and medical equipment issued by the North Carolina Board of Pharmacy on February 17, 2014. RFH at 15; P. Br. at 3; P. Ex. 1.
11. Petitioner had a license to dispense home medical equipment issued by the Florida Agency for Health Care Administration effective August 14, 2013 through August 13, 2017. RFH at 21-22, 31.
**Page 9**
**b. Analysis**
In this case, summary judgment in favor of CMS is appropriate. There are no genuine disputes as to any fact material to the decision in this case and judgment is based on application of the law to the undisputed facts. All favorable inferences are drawn in Petitioner's favor and Petitioner's assertions are accepted as true for purposes of summary judgment. Petitioner's alleged defenses are without merit and must be resolved against Petitioner as a matter of law. Summary judgment is appropriate as to revocation based on Supplier Standards 1 and 2.
The Palmetto hearing officer upheld revocation based on violations of Supplier Standards 1 and 2. The regulations the hearing officer concluded Petitioner violated require:
(c) *Application certification standards*. The supplier must meet and must certify in its application for billing privileges [CMS-877S] that it meets and will continue to meet the following standards:
(1) Operates its business and furnishes Medicare-covered items in compliance with the following applicable laws:
(i) Federal regulatory requirements that specify requirements for the provision of DMEPOS and ensure accessibility for the disabled.
	(ii) State licensure and regulatory requirements. If a State requires licensure to furnish certain items or services, a DMEPOS supplier –
(A) Must be licensed to provide the item or service; and
(B) May contract with a licensed individual or other entity to provide the licensed services unless expressly prohibited by State law.
(2) Has not made, or caused to be made, any false statement or misrepresentation of a material fact on its application for billing privileges.  (The supplier must provide complete and accurate information in response to questions on its application for billing privileges.  The supplier must report to CMS any changes in information supplied on the application within 30 days of the change.)
**Page 10**
42 C.F.R. § 424.57(c)(1) and (2).
Violation of either Supplier Standard provides CMS and Palmetto a basis for revocation of Petitioner's Medicare enrollment and billing privileges. Even a single violation of a single supplier standard is an adequate basis for revocation of billing privileges and enrollment. *1866ICPayday.com*, DAB No. 2289 at 13 (2009). Furthermore, if I find a basis for revocation, I have no authority to review the exercise of discretion by CMS or Palmetto to revoke. *Abdul Razzaque Ahmed, M.D.*, DAB No. 2261 at 19 (2009),*aff'd, Ahmed v. Sebelius*, 710 F. Supp. 2d 167 (D. Mass. 2010). My authority is limited to determining whether there is a legal basis for revocation of Petitioner's Medicare enrollment and billing privileges and if there is a basis for revocation, I have no discretion not to uphold revocation. *Id*.
**(i) Supplier Standard 1**
There is no dispute that the California legislature requires that an out-of-state home medical device retailer register with the state prior to dispensing prescription DMEPOS in California. Cal. Health & Safety Code § 111656.7 (West 2001).  There is no dispute that Petitioner did not have the required California registration or license prior to 2017. RFH at 1, 23, 123; CMS Ex. 1 at 61. There is also no dispute that Petitioner submitted claims to CMS for DMEPOS sales or rentals in California in 2015 and 2016, when Petitioner did not have a California license. CMS Ex. 1 at 93-95. Petitioner admits that in 2014 it provided equipment in California without meeting California registration requirements. P. Ex. 1; P. Br.; RFH at 1, 123. Accordingly, there is a prima facie showing of a violation of 42 C.F.R. § 424.57(c)(1)(ii).
Petitioner's owner argues that he was misled by a federal government website or a contractor's website that indicated no license was necessary in California. RFH at 101, 108-109, 123; P. Br. at 1-2; P. Ex. 1 at 1. I accept as true for purposes of summary judgment that Petitioner was misled. However, I conclude Petitioner's confusion is no defense. The regulation is very clear that Petitioner must meet and must certify in its application that it meets state licensure and regulatory requirements. 42 C.F.R. § 424.57(c)(1)(ii). The regulation does not give Petitioner the option to argue that Petitioner's owner failed to verify state regulatory requirements for licensure because it relied upon a government website or publication.
Petitioner's argument that it relied upon a federal government or one of its contractor's websites may be construed to be an argument that the government should be estopped in this case. However, estoppel against the federal government, if available at all, is presumably unavailable absent "affirmative misconduct," such as fraud. *See, e.g.*,*Pacific Islander Council of Leaders*, DAB No. 2091 at 12 (2007); *Office 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, Palmetto, another government contractor or
**Page 11**
any of their staff members. However, even if I concluded Petitioner's failure to obtain a California license or registration is excusable because Petitioner relied upon incorrect information in a federal government or its contractor's website, it would not excuse the violation of Supplier Standard 2 that occurred because Petitioner provided DMEPOS in California before Petitioner properly notified Palmetto or CMS that it was doing so.
The Palmetto hearing officer also concluded on reconsideration that Petitioner did not have a required North Carolina license. Petitioner disputes that conclusion and has provided its owner's sworn affidavit (P. Ex. 1) with a copy of the North Carolina license attached to Petitioner's brief (P. Br. at 3 (Adobe® document page counter)). However, I need not resolve the issue as I have found Petitioner did not have a California license or registration when it provided DMEPOS in California.
I conclude Petitioner violated Supplier Standard 1.
**(ii) Supplier Standard 2**
Petitioner concedes that it billed Medicare for DMEPOS furnished in California before Palmetto and CMS were notified that Petitioner was providing DMEPOS in California. Petitioner did not notify Palmetto it was providing DMEPOS in California until it filed its CMS-855S dated August 29, 2017, around the time Petitioner requested reconsideration on August 28, 2017. CMS Ex. 1 at 26, 44. Petitioner also does not dispute that in 2015, 2016, and 2017, it also billed Medicare for DMEPOS furnished in North Carolina and states other than Florida or Virginia. CMS Ex. 1 at 93-97; P. Ex. 1; P. Br.; RFH. Petitioner does not dispute that prior to submitting its CMS-855S dated August 29, 2017, Petitioner had only notified Palmetto and CMS that it was supplying DMEPOS in either Florida or Virginia. CMS Ex. 2 at 8, 11, 28; CMS Ex. 3 at 8-10, 26; P. Br. at 2.
Supplier Standard 2 is clear that a DMEPOS supplier cannot make or cause to be made any false statement or misrepresentation of a material fact on its application for billing privileges and must notify CMS of any changes in information supplied on the application within 30 days of the change. 42 C.F.R. § 424.57(c)(2).
Petitioner submitted at least two applications that did not accurately reflect the states in which Petitioner supplied DMEPOS items. The undisputed evidence shows that when Petitioner provided DMEPOS in states other than the two listed on its CMS-855S applications, Petitioner did not file new CMS-855S applications to report the changes.
Accordingly, I conclude that Petitioner violated Suppler Standard 2.
**Page 12**
**(iii) Effective Date of Revocation**
Pursuant to 42 C.F.R. § 424.57(e), revocation for noncompliance with the Supplier Standards established by 42 C.F.R. § 424.57(c) is effective 30 days after the supplier is sent notice of the revocation. Therefore, the correct effective date for revocation of Petitioner's Medicare enrollment and billing privileges is 30 days after the notice of the initial determination to revoke was issued. Accordingly, I conclude that the effective date of the revocation of Petitioner's Medicare enrollment and billing privileges was June 15, 2017, which is 30 days after the date of the May 16, 2017 notice of the initial determination to revoke.
**(iv) Other Arguments of Petitioner**
Petitioner argues that it made billing errors and there was no intent to commit fraud as suggested by the Palmetto hearing officer in the reconsidered determination. Petitioner argues that all billing errors have been corrected and overpayments repaid. RFH at 1-2, 124-25. I find no suggestion in the reconsidered determination of fraud and CMS advances no such argument. Petitioner's violations of Supplier Standards 1 and 2 were not mere billing errors. Rather, Petitioner violated standards to enroll and maintain enrollment applicable to all DMEPOS suppliers.
Petitioner argues that it has made no mistakes in supplying DMEPOS and that it provides drug-free pain relief for hundreds of veterans. RFH at 1-2, 124-25. I accept Petitioner's representations. However, I have no authority to grant equitable relief. *US Ultrasound*, DAB No. 2302 at 8 (2010) ("[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements."). I am also required to follow the Act and regulations and have no authority to declare statutes or regulations invalid. *1866ICPayday.com*,*L.L.C.*, DAB No. 2289 at 14 ("[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.").
III. Conclusion
For the foregoing reasons, I conclude that there is a basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.57(e) and 424.535(a)(1) for violations of 42 C.F.R. § 424.57(c)(1) and (2) (Supplier Standards 1 and 2). The effective date of revocation was June 15, 2017.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the initial determination, unless otherwise indicated. An appellate panel of the Departmental Appeals Board (Board) concluded in Mark Kabat, D.O., DAB No. 2875 at 9-11 (2018) that the applicable regulations are those in effect at the time of the initial determination. The Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination. Neb Grp. of Ariz. LLC, DAB No. 2573 at 9 (2014). In this case, the regulations did not change between the issuance of the initial and reconsidered determinations. back to note 1
                      2. The application certification standards established by 42 C.F.R. § 424.57(c) are commonly referred to as Supplier Standards. back to note 2
                      3. Palmetto erroneously cited 42 C.F.R. §§ 405.800 and 424.535(g) as authority to revoke. The former regulation grants a provider or supplier the right to appeal the denial or revocation of billing privileges, and the latter establishes the effective date of a revocation. back to note 3
                      4. A copy of the request for hearing without enclosures was uploaded to the Departmental Appeals Board Electronic Filing System (DAB E-File) as #1. The complete request for hearing with enclosures was uploaded to DAB E-File as #1b. Citations in this decision are to the version of the RFH with enclosures uploaded as DAB E-File #1b. Page numbers cited for the request for hearing and its enclosures are the Adobe® page counter number for DAB E-File #1b. back to note 4
                      5. A "supplier" furnishes services and supplies under Medicare. The term supplier applies to physicians or other practitioners and facilities that are not included within the definition of the phrase "provider of services." Act § 1861(d) (42 U.S.C. § 1395x(d)). A "provider of services," commonly shortened to "provider," includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act. Act § 1861(u) (42 U.S.C. § 1395x(u)). The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes. back to note 5
                      6. Petitioner's owner had a separate branch DMEPOS supplier enrolled in Medicare in Fayetteville, North Carolina. The other DMEPOS supplier apparently used the same name as Petitioner but had a different billing number. The provision of DMEPOS by the other supplier is not at issue and that DMEPOS supplier is not subject to the revocation action in this case. RFH at 1, 24, 27; CMS Br. at 3 n.1. back to note 6 Back to top
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