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                              ID Clinic Consultants PLLC, DAB CR5364 (2019)
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ID Clinic Consultants PLLC, DAB CR5364 (2019)








  
  
    

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





ID Clinic Consultants PLLC
	(NPI: 1073060331 / PTAN: 547855),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-18-882Decision No. CR5364July 5, 2019

        
              
    

      DECISION
The Medicare enrollment and billing privileges of Petitioner, ID Clinic Consultants PLLC, are revoked pursuant to 42 C.F.R. § 424.535(a)(5)(i).1
 The effective date of revocation is November 9, 2017, the date it was determined that Petitioner was not operating a practice location at the practice location address listed in Petitioner’s Medicare enrollment application.  42 C.F.R. § 424.535(g).
I.  Procedural History and Jurisdiction
On January 2, 2018, Novitas Solutions, a Medicare administrative contractor (MAC), notified Petitioner of its initial determination to revoke Petitioner’s Medicare enrollment and billing privileges effective November 9, 2017, and to impose a two-year re-enrollment bar.  The MAC cited 42 C.F.R. § 424.535(a)(5) as authority for the revocation
**Page 2**
based on an on-site review that found Petitioner was not operational at the address Petitioner previously reported as its practice location at 908 Audelia Road, Suite 200 #323 Richardson, Texas (Audelia Road Address).  The on-site review identified the Audelia Road Address as a United Parcel Service (UPS®) Store with rental mailboxes.  CMS Exhibit (Ex.) 1 at 30-31.
Petitioner requested reconsideration by letter dated February 1, 2018, and submitted a supplemental reconsideration request dated February 23, 2018.  CMS Ex. 1 at 32-44, 46‐228.  A MAC hearing officer issued a reconsidered determination on March 12, 2018.  The hearing officer upheld the revocation of Petitioner’s Medicare enrollment and billing privileges concluding that Petitioner was not operational at the physical practice address on file with CMS and the MAC because the address was a UPS Store and not a location where patients were treated.  CMS Ex. 1 at 1-6.
Petitioner requested a hearing before an administrative law judge (ALJ) on May 4, 2018 (RFH).  The case was assigned to me and an Acknowledgment and Prehearing Order (Prehearing Order) was issued on May 11, 2018.
CMS filed a motion for summary judgment and prehearing brief and nine exhibits on June 11, 2018.  On June 14, 2018, I issued an order rejecting the CMS exhibits because they did not comply with the requirements of the Prehearing Order.  On June 18, 2018, CMS filed an amended motion for summary judgment and prehearing brief (CMS Br.) with an amended CMS exhibit marked CMS Ex. 1 that combined the previously rejected CMS exhibits.  On July 9, 2018, Petitioner filed a response in opposition to the CMS motion for summary judgment, a cross-motion for summary judgment, and prehearing brief (P. Br.).  Petitioner offered no documents as evidence, choosing to rely upon the exhibits filed by CMS.  Petitioner did not object to my consideration of CMS Ex. 1 and it is admitted as evidence.  On July 25, 2018, CMS waived its right to file a reply brief.
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 the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and
**Page 3**
suppliers.2
  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioner, a physician organization, is a supplier under the Act.  Act § 1861(d), (q), (r) (42 U.S.C. § 1395x(d), (q), (r)); 42 C.F.R. § 424.502.
The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for enrolling providers and suppliers in Medicare, including the requirement to provide 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. § 424.505, suppliers such as Petitioner must be enrolled in the Medicare program and be issued a National Provider Identifier (NPI) billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.
The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or a MAC may revoke an enrolled supplier’s Medicare enrollment and billing privileges and supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535.
Pursuant to 42 C.F.R. § 424.535(a)(5), CMS may revoke a supplier’s enrollment and billing privileges if CMS determines, upon on-site review, that the supplier is no longer operational to furnish Medicare-covered items or services, or has otherwise failed to satisfy any of the Medicare enrollment requirements.  42 C.F.R. § 424.535(a)(5)(i)-(ii).
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. § 424.535(g).  However, when CMS revokes a supplier’s billing privileges because the supplier’s “practice location” is not operational, the revocation is effective as of the date CMS determined the supplier’s practice location was no longer operational.  42 C.F.R.
**Page 4**
§ 424.535(g).  After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from re-enrolling 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.  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 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).  The reconsidered determination is the determination subject to my review.  *Neb Grp. of Ariz. LLC*, DAB No. 2573 at 7 (2014).
**B.  Issues**
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**
My conclusions of law are set forth in bold followed by the pertinent findings of undisputed fact and analysis.
**1.  Summary judgment is appropriate.**
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 section 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
**Page 5**
(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.3
  Accordingly, disposition on the written record alone is not permissible, unless the CMS motion for summary judgment or Petitioner’s cross-motion has merit.
Summary judgment is not automatic upon request, but is limited to certain specific conditions.  The Secretary’s regulations at 42 C.F.R. pt. 498 that establish the procedure to be followed in adjudicating Petitioner’s case 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 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 do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 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, para. II.D and G.  The parties were given notice by my Prehearing Order 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 material fact for adjudication and/or the moving party 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.  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.  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
**Page 6**
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 differ from that used in resolving a case after a hearing.  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 & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d*,*Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 Fed. App’x 181 (6th Cir. 2005).
There is no genuine dispute as to any material fact related to revocation pursuant to 42 C.F.R. § 424.535(a)(5)(i) and the effective date of revocation.  The duration of the bar to re-enrollment is not subject to my review.
**2.  Petitioner must be operational to furnish Medicare-covered items or services.  42 C.F.R. § 424.535(a)(5)(i).**
**3.  CMS or the MAC is authorized to revoke the Medicare enrollment and billing privileges of a provider or supplier that is found upon on‐site review not operational at the location reported to be a practice location to CMS or the MAC.  42 C.F.R. § 424.535(a)(5)(i).**
**4.  There is a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(5)(i) because Petitioner was not operating its practice at the location on file with the MAC and CMS when an on-site review was attempted.**
**5.  The regulations do not permit for the submission of a plan of correction to correct noncompliance with program participation**
**Page 7**
**requirements, except when revocation is pursuant to 42 C.F.R. § 424.535(a)(1).**
**6.  Revocation of Petitioner’s Medicare enrollment and billing privileges is effective November 9, 2017, the date it was determined by CMS and the MAC that Petitioner was not operational at the practice location listed in Petitioner’s Medicare enrollment application (CMS-855I).  42 C.F.R. § 424.535(g).**
**7.  I have no authority to review the duration of the bar to re‐enrollment imposed by the MAC.**
**a.  Undisputed Facts**
The material facts are not disputed.
Petitioner is a solo-physician practice owned by Zakir Shaikh, MD.  CMS Ex. 1 at 223 ¶ 1.  Dr. Shaikh sees patients exclusively in hospitals, not a practice office.  CMS Ex. 1 at 225 ¶ 8.
Dr. Shaikh signed an enrollment application (CMS-855I) on August 15, 2017, advising the MAC of a change in Petitioner’s practice location.  CMS Ex. 1 at 10-11, 16.  Unfortunately, section 4A through D are not included among the pages placed in evidence by CMS.  CMS Ex. 1 at 11-12.  However, an “Approved Medicare Enrollment Record” dated August 14, 2017, from the CMS Provider Enrollment, Chain, and Ownership System (PECOS) lists as Petitioner’s practice address the Audelia Road Address effective September 4, 2016.  CMS Ex. 1 at 32.  Petitioner admits that it notified the MAC that the address of its practice location was 908 Audelia Rd., Ste. 200 #323 Richardson, Texas.  P. Br. at 2, 3; CMS Ex. 1 at 46, 49-50, 225-26 ¶¶ 7, 10-11.
Petitioner asserts that listing the Audelia Road Address as Petitioner’s practice location rather than the various hospitals where he delivers care and services was simply a mistake, a fact I accept as true for purposes of summary judgment.  CMS Ex. 1 at 49, 225-26 ¶¶ 10-12; P. Br. at 2-3, 5-6, 8-10.
It is not disputed that on November 9, 2017, a site investigator attempted to conduct an inspection at the Audelia Road Address.  The investigator found that Petitioner did not have a practice location open for business at the Audelia Road Address as that was a UPS® Store with rental mailboxes.  CMS Ex. 1 at 28-29.
**Page 8**
**b.  Analysis**
It is important as a preliminary matter to identify the regulatory basis for revocation in this case.  Neither the initial determination (CMS Ex. 1 at 30-31) nor the reconsidered determination (CMS Ex. 1 at 1-6) specifically cited to either subsection (i) or (ii) of 42 C.F.R. § 424.535(a)(5).  The regulation provides:
(5) On-site review. Upon on-site review or other reliable evidence, CMS determines that the provider or supplier is either of the following:
(i) No longer operational to furnish Medicare-covered items or services.
(ii) Otherwise fails to satisfy any Medicare enrollment requirement.
The reconsidered determination is the determination subject to my review.  *Neb Grp. of Ariz. LLC*, DAB No. 2573 at 7.  The reconsidered determination focuses upon the fact that Petitioner was found not to be operational at the Audelia Road Address.  The reconsidered determination does not articulate any other regulatory violation by Petitioner.  CMS Ex. 1 at 1, 4.  Petitioner is required to submit a complete Medicare enrollment application with accurate and truthful responses to all information requested and to ensure that its enrollment information is updated to remain complete, accurate, and truthful.  42 C.F.R. §§ 424.510(d), 424.515, 424.516.  In order to maintain an active enrollment status in Medicare, Petitioner had to comply with 42 C.F.R. §§ 424.510(d) and 424.516.  Pursuant to 42 C.F.R. § 424.510(d)(2), Petitioner was required to accurately and truthfully provide requested information, including its practice location, in its enrollment or revalidation applications.  CMS has the right to perform on-site inspections to verify information and confirm that a provider or supplier continues to meet enrollment requirements.  42 C.F.R. §§ 424.510(d)(8), 424.517.  The MAC did not cite violations of regulatory requirements other than the requirement related to reporting of Petitioner’s practice location.  Accordingly, I conclude that the only basis for revocation subject to my review in this case is revocation pursuant to 42 C.F.R. § 424.535(a)(5)(i).4
**Page 9**
When Petitioner submitted its CMS-855I application, the regulations required that the application certification statement be signed by an individual who had authority to bind Petitioner both legally and financially.  The signature attests that all information submitted was accurate and that Petitioner was aware of and agreed to abide by all applicable statutes, regulations, and program instructions.  42 C.F.R. § 424.510(d)(3).
Petitioner bears the burden to demonstrate that it meets enrollment requirements and to produce documents demonstrating compliance with all program participation requirements.  42 C.F.R. § 424.535(c).  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*, DAB No. 1904 (2004).  Applying the Board’s interpretation of the regulations in *Batavia* to this case, Petitioner must show, in order to defeat the CMS motion for summary judgment, that there is a genuine dispute of material fact as to whether Petitioner filed a CMS-855I listing its practice location as a UPS® Store mailbox.  Petitioner has not disputed this fact, and has in fact conceded it.  Petitioner cannot meet its burden in this case related to revocation pursuant to 42 C.F.R. § 424.535(a)(5)(i), even if I draw all inferences in Petitioner’s favor.
I accept Petitioner’s assertion that the Audelia Road Address was never its practice location, but only a correspondence address.  I also accept that Dr. Shaikh mistakenly listed Petitioner’s practice location as the Audelia Road Address instead of the hospital addresses where he actually delivered care and services to Medicare-eligible beneficiaries.  P. Br. at 7, 9; CMS Ex. 1 at 225-226 ¶¶ 8, 10.  Dr. Shaikh signed the CMS-855I on August 15, 2017, on Petitioner’s behalf, agreeing to be bound by Medicare participation requirements and certifying that all information in the CMS-855I was true, correct, and completed.  CMS Ex. 1 at 16.  I accept as true that Petitioner mistakenly listed the UPS® Store commercial mailbox as its practice location.  However, Petitioner cites no authority for Petitioner’s mistake constituting a defense to Petitioner incorrectly reporting the Aurelia Road Address as its practice location.
**Page 10**
Petitioner argues that it was operational with Dr. Shaikh delivering care and services to Medicare-eligible beneficiaries at several hospitals.  P. Br. at 5-8.  There is no dispute by CMS that Petitioner did practice only at hospitals.  There is no dispute that Petitioner remained operational at those locations at the time of the site survey.  CMS Br.  However, the Board has interpreted the regulations so that the fact Petitioner may have been operational at another site is not considered relevant by the Board when considering revocation under 42 C.F.R. § 424.535(a)(5)(i).  Rather, the Board reads the regulations as requiring that a provider or supplier not only be operational, but operational at the specific address on record with CMS or the MAC, with one exception not applicable here.  *OC Housecalls, Inc.*, DAB No. 2893 at 10-11.
I conclude that Petitioner was not operational at the practice location address on file with CMS and the MAC when the site review occurred and, according to prior Board decisions, that is a basis for revocation under 42 C.F.R. § 424.535(a)(5)(i). 
	Petitioner argues without citation of authority, that an honest mistake on an enrollment application should not be the basis for revocation under 42 C.F.R. § 424.535(a)(5).  P. Br. at 6, 8-9.  The Secretary has granted CMS and the MACs discretion to revoke enrollment and billing privileges for any of the reasons listed in 42 C.F.R. § 424.535.  While the regulation may grant CMS broad enough discretion not to revoke based on an honest or innocent mistake, I have no authority to review that exercise of discretion when I have found that there is a basis for revocation.  *Dinesh Patel, M.D.*, DAB No. 2551 at 10 (2013); *Fady Fayad, M.D.*, DAB No. 2266 at 16 (2009), *aff'd, Fayad v. Sebelius*, 803 F. Supp. 2d 699 (E.D. Mich. 2011); *Abdul Razzaque Ahmed, M.D.*, DAB No. 2261 at 16-17, 19 (2009), *aff'd, Ahmed v. Sebelius*, 710 F. Supp. 2d 167 (D. Mass. 2010).  Finally, Petitioner argues that it should have been permitted to correct the mistake made regarding its practice location.  Only when revocation is pursuant to 42 C.F.R. § 424.535(a)(1) is CMS or the MAC required to permit a provider or supplier to submit a plan of correction.  No similar requirement is specified for the other bases for revocation listed in 42 C.F.R. § 424.535.
Summary judgment is also appropriate as to the effective date of revocation.  Pursuant to 42 C.F.R. § 424.535(g):
(g)  *Effective date of revocation.*  Revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier, except if the revocation is based on Federal exclusion or debarment, felony conviction, license suspension or revocation, **or the practice location is **determined by CMS or its contractor not to be operational**.  When a revocation is based on a Federal exclusion or debarment, felony conviction, license suspension or revocation, **or the practice location is****
**Page 11**
**determined by CMS or its contractor not to be operational**, **the revocation is effective**with the date of exclusion or debarment, felony conviction, license suspension or revocation or **t****he date that CMS or its contractor determined that the provider or supplier was no longer operational.**
(Emphasis added).  Petitioner does not dispute that it did not have an operational practice location at the Audelia Road Address when the site review occurred on November 9, 2017.  P. Br. at 2.  Pursuant to 42 C.F.R. § 424.535(g), CMS is authorized to establish an effective date of revocation based on the date CMS determined that Petitioner’s **practice location** was not operational at the location provided.  The investigator found that Petitioner did not have an operational practice at the Audelia Road Address on November 9, 2017.  Therefore, November 9, 2017, is the correct effective date of revocation.
When a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from re-enrolling in the Medicare program for one to three years.  42 C.F.R. § 424.535(c).  There is no statutory or regulatory language establishing a right to review of the duration of the re-enrollment bar CMS imposes.  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.535(c), 424.545; 498.3(b), 498.5.  The Board has held that the duration of a revoked supplier’s re-enrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and not subject to ALJ review.  *Vijendra Dave*, DAB No. 2672 at 10-11 (2016).
To the extent that Petitioner’s arguments may be construed as a request for equitable relief, I have no authority to grant such relief.  *US Ultrasound*, DAB No. 2302 at 8 (2010).  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 (2009).
III.  Conclusion
For the foregoing reasons, Petitioner’s Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(5)(i).  The effective date of revocation is November 9, 2017.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Citations are to the 2017 revision of the Code of Federal Regulation (C.F.R.), unless otherwise stated. back to note 1
                      2. A “supplier” furnishes services under Medicare and includes 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) (42 U.S.C. § 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(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 2
                      3. Petitioner states that if summary judgment cannot be granted, it requests decision on the record in its favor. P. Br. at 1 n.1. I conclude that Petitioner has not unequivocally waived the right to oral hearing and I do not accept Petitioner’s statement as a waiver. However, because I conclude summary judgment is appropriate, I also conclude no hearing is required. back to note 3
                      4. Arguably, the MAC’s citations to 42 C.F.R. § 424.535(a) without citation to a specific subsection was either insufficient notice of the actual basis for revocation or should be considered sufficient to place Petitioner on notice of the need to defend on all bases for revocation under 42 C.F.R. § 424.535(a). However, in OC Housecalls, Inc., DAB No. 2893 (2018), a case in which CMS and the MAC did not specify which subsection of 42 C.F.R. § 424.535(a) applied, the Board found it necessary to consider the language of the reconsidered determination and determined that “CMS did not articulate subsection 424.535(a)(5)(ii) as a basis for revocation.” OC Housecalls, Inc., DAB No. 2893 at 13 14. Therefore, the Board rejected the ALJ’s determination that the petitioner in that case violated other Medicare enrollment requirements under 42 C.F.R. § 424.535(a)(5)(ii) by failing to report its correct practice location. back to note 4 Back to top
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