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                              Physical Therapy and Wellness Center of Maui, LLC, DAB CR5334 (2019)
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Physical Therapy and Wellness Center of Maui, LLC, DAB CR5334 (2019)








  
  
    

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





Physical Therapy and Wellness Center of Maui, LLC
	(NPI: 1578623211 / PTAN: H562120),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-18-849Decision No. CR5334June 3, 2019

        
              
    

      DECISION
The Medicare enrollment and billing privileges of Petitioner, Physical Therapy and Wellness Center of Maui, LLC, are revoked pursuant to 42 C.F.R. §§ 424.535(a)(5) and 424.535(a)(9)1
 based on a violations of 42 C.F.R. §§ 424.510(d)(1), (2) and 424.516(d)(1)(iii).  The effective date of revocation is August 22, 2017, the date it was determined that Petitioner was not operating a practice location at the address listed in Petitioner’s Medicare enrollment application.  42 C.F.R. § 424.535(g).
I.  Procedural History and Jurisdiction
On December 14, 2017, Noridian Healthcare Solutions, a Medicare administrative contractor (MAC), notified Petitioner of its initial determination to revoke Petitioner’s Medicare enrollment and billing privileges effective August 22, 2017, and to impose a two-year re-enrollment bar.  The MAC cited 42 C.F.R. §§ 424.535(a)(5) and 424.535(a)(9) as authority for the revocation and alleged it was determined, based on an on-site review, that Petitioner was no longer operating at 53 Puunene Avenue, Suite 104,
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Kahului, HI, and that Petitioner failed to notify the Centers for Medicare & Medicaid Services (CMS) of a change of practice location as required by 42 C.F.R. § 424.516.  CMS Exhibit (Ex.) 1 at 185-86, 347-48.
Petitioner requested reconsideration by letter dated December 26, 2017.  CMS Ex. 1 at 9‐346.  A MAC hearing officer issued a reconsidered determination on March 15, 2018.  The hearing officer upheld the revocation of Petitioner’s Medicare enrollment and billing privileges concluding that Petitioner was no longer operational at the address on file and did not report the change of address.  CMS Ex. 1 at 1-4.
Petitioner requested a hearing before an administrative law judge (ALJ) on April 10, 2018 (RFH).  The case was assigned to me and an Acknowledgement and Prehearing Order (Prehearing Order) was issued on May 3, 2018.
CMS filed a motion for summary judgment and prehearing brief on June 4, 2018 (CMS Br.) with CMS Ex. 1.  On July 1, 2018, Petitioner filed a prehearing brief and response in opposition to the CMS motion (P. Br.) with Petitioner’s exhibits (P. Exs.) 1 and 2.  Petitioner did not object to my consideration of CMS Ex. 1 and it is admitted as evidence.  On July 16, 2018, CMS filed a reply brief (CMS Reply) and objections to P. Exs. 1 and 2.  P. Ex. 1 is a copy of Petitioner’s March 29, 2018 request for hearing (P. Ex. 1 at 1-3) and a document titled “Affidavit of Mailing” with a notary attestation and seal indicating that the “Affidavit of Mailing” was signed under oath (P. Ex. 1 at 4-5).  CMS objects because the “Affidavit of Mailing” was not executed in accordance with 28 U.S.C. § 1746 and the testimony is vague.  CMS Reply at 5-6.  The CMS objection is overruled and P. Ex. 1 is admitted.  The Prehearing Order provides for filing of witness statements in the form of an affidavit or a declaration executed pursuant to 28 U.S.C. § 1746.  Prehearing Order ¶ II.D.1.  The “Affidavit of Mailing” was executed as an affidavit, signed before a notary, has a facially valid notary attestation and seal attached, and is presumptively authentic.  The fact the “Affidavit of Mailing” was not executed in the alternative form of a declaration is not grounds for exclusion.  Neither the request for hearing nor the affidavit are subject to the good cause requirement of 42 C.F.R. § 498.56(e)(2)(ii), which by its terms is limited to documentary evidence that could have previously been submitted at the time of the reconsidered determination.  The “Affidavit of Mailing” is not vague, and is only considered for what is specifically stated, which I accept as true for purposes of summary judgment.  CMS objects to my consideration of P. Ex. 2 on grounds that Petitioner has not shown good cause for the submission of this documentary evidence for the first time before me citing the requirement of 42 C.F.R. § 498.56(e)(2)(ii).  CMS also objects that P. Ex. 2 is not relevant.  CMS Reply at 2-5.  P. Ex. 2 consists of various claims related forms and checks, all of which bear an address for Petitioner of 430 Kele Street, Suite 401, Kahului, HI  96732 (430 Kele Street).  The documents in P. Ex. 2 are evidence that Petitioner operated from 430 Kele Street.  However, the documents have no
Page 3
tendency to show that Petitioner’s change of address to 430 Kele Street was ever received by the MAC and therefore P. Ex. 2 is not relevant and not admitted.  *See* Fed. R. Evid. 401.
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 suppliers.2
  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioner, a nonphysician practitioner organization, is a supplier under the Act.  Act § 1861(d), (p) (42 U.S.C. § 1395x(d), (p)); 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.
Page 4
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).  Pursuant to 42 C.F.R. § 424.535(a)(9), CMS may revoke a supplier’s enrollment and billing privileges if the supplier did not comply with the reporting requirements specified in 42 C.F.R. § 424.516(d)(1)(iii), which require that a physician, nonphysician practitioner or a physician or nonphysician practitioner organization report to their MAC within 30 days any change in practice location.
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. § 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 Group of Ariz. LLC*, DAB No. 2573 at 7 (2014).
Page 5
**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 (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 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. 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, 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. Pro. 56 will be applied.
Page 6
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 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) and (9) and the effective date of revocation.  The duration of the bar to re-enrollment is not subject to my review and that issue must be resolved against Petitioner as a matter of law.
Page 7
**2.  Petitioner must be operational to furnish Medicare-covered items or services.  42 C.F.R. § 424.535(a)(5)(i).**
**3.  Petitioner must satisfy all Medicare enrollment requirements.  42 C.F.R. § 424.535(a)(5)(ii).**
**4.  Petitioner was required to report completely, accurately, and truthfully in their enrollment applications all information requested by the applications.  42 C.F.R. § 424.510(d)(1), (2).**
**5.  In order to maintain active enrollment, Petitioner was required to report to the MAC any change in practice location within 30 days.  42 C.F.R. § 424.516(d)(1)(iii).**
**6.  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 or that fails to satisfy any Medicare enrollment requirement.  42 C.F.R. § 424.535(a)(5)(i) and (ii).**
**7.  There is a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(5)(i) and (ii) because Petitioner was not operating its practice at the location on file with the MAC and CMS when on-site reviews were attempted.**
**8.  There is also a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) because Petitioner failed to report a change of practice location to the MAC to reflect their correct practice location within 30 days as required by 42 C.F.R.  § 424.516(d)(1)(iii).**
**9.  Revocation of Petitioner’s Medicare enrollment and billing privileges is effective August 22, 2017, the date it was determined by CMS that Petitioner was not operational at the practice location listed in Petitioner’s Medicare enrollment applications (CMS-855I).  42 C.F.R. § 424.535(g).**
**10.  I have no authority to review the duration of the bar to re‐enrollment imposed by the MAC.**
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**a.  Undisputed Facts**
The material facts are not disputed.
Petitioner filed an application (CMS-855B) dated February 5 and 6, 2009, revalidating its enrollment in Medicare as a physical therapy practice group.  CMS Ex. 1 at 359-461.  Petitioner’s practice location was listed as 53 Puuenne Avenue, Suite 104, Kahului, HI  96732 (53 Puuenne Avenue).  CMS Ex. 1 at 413, 417, 453.
On August 22, 2017 and December 5, 2017, site inspectors attempted to conduct an inspection of Petitioner’s practice location at 53 Puuenne Avenue.  Both investigators found that Petitioner was not open for business, no staff was present, no customers were present and Petitioner was not operating at that location.  Pictures show that the office space was empty.  CMS Ex. 1 at 350-53.
Petitioner admits that on about January 4, 2016, it changed its practice location from 53 Puuenne Avenue to 430 Kele Street.  RFH at 1; CMS Ex. 1 at 9, 30, 183, 204; P. Ex. 1 at 1.  Petitioner asserts that on about February 11, 2016, it mailed a CMS-855B application to the MAC with CMS-855Is for each of Petitioner’s four physical therapists advising the MAC of the change of practice location.  CMS Ex. 1 at 9, 183, RFH at 1; P. Ex. 1 at 4.  Petitioner submitted with its request for reconsideration copies of the CMS-855 applications for Petitioner and its four physical therapists, reporting the change of practice location from 53 Puuenne Avenue to 430 Kele Street, all of which are signed in January or February 2016.3
  CMS Ex. 1 at 15-176, 187-346.  The change of practice location occurred on January 4, 2016.  CMS Ex. 1 at 30.  Pursuant to 42 C.F.R. § 424.516(d)(1), non-physician practitioner organizations such as Petitioner have 30 days to report a change in practice location.  Petitioner admits the CMS-855s reporting the change in address were not mailed until February 11, 2016, seven days after 30-day reporting period expired.  I accept Petitioner’s assertions as true for purposes of summary judgment.
The MAC asserts none of the CMS-855s were received from Petitioner.  Petitioner has presented no evidence to show a genuine dispute of material fact that the applications were not received by the MAC or from which I may draw an inference in favor of Petitioner that receipt by the MAC occurred.  Even though I accept as true that the
Page 9
CMS‐855s were placed in the mail that does not permit an inference that they were actually received by the MAC in the face of evidence they were not.
**b.  Analysis**
There is no dispute that in February 2009, Petitioner revalidated its enrollment in Medicare as a physical therapy practice group, with its practice location at 53 Puuenne Avenue.  CMS Ex. 1 at 413, 417, 453.  There is no dispute that site inspectors found that Petitioner was not operating a practice at 53 Puuenne Avenue on August 22, 2017 and December 5, 2017.  CMS Ex. 1 at 350-53; P. Br. at 2.
I accept as true for purposes of summary judgment that Petitioner sent the MAC notice of the change of practice location in February 2016, but the notices were sent to the MAC more than 37 days after the change occurred, 7 days late.  The MAC denies receiving the CMS-855s Petitioner sent on about February 11, 2016, notifying the MAC of the change of practice location that occurred on about January 4, 2016.  Petitioner has presented no certified mail return receipt or any evidence of an acknowledgment by the MAC of receipt of the CMS-855s, or other similar evidence that shows there is a genuine dispute as to the MAC’s denial of receipt of the CMS-855s.
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 must comply with 42 C.F.R. § 424.516.  Petitioner was a nonphysician practitioner organization.  42 C.F.R. § 424.502.  Pursuant to 42 C.F.R. § 424.516(d)(1)(iii), physicians, nonphysicians, and physician or nonphysician practitioner organizations must report a change of practice location to the MAC within 30 days of the change.  A report of a change in practice location must be done by filing with the MAC the correct CMS-855 or by using the online CMS Provider Enrollment, Chain, and Ownership System (PECOS).  42 C.F.R. §§ 424.502, 424.515.  The Board has interpreted the regulations as providing that an application is not filed until it is received by the MAC.  *Alexander C. Gatzimos, MD, JD, LLC d/b/a Michiana Adult Med. Specialists*, DAB No. 2730 (2016).  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.
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. § 424.545(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.*,
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DAB No. 1904 (2004).  Applying the Board’s interpretation of the regulations in *Gatzimos*and *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 the MAC received the CMS-855s sent by Petitioner in February 2016, i.e., that the CMS-855s reporting the change of practice location were actually received by the MAC and thereby filed.  Petitioner has not offered evidence such as a certified mail receipt or acknowledgment by the MAC that shows a genuine dispute that the MAC received Petitioner’s CMS-855B informing of a change of address.
There appears to be no dispute by CMS in this case that Petitioner did, in fact, move to a new practice location at 430 Kele Street on about January 4, 2016.  Further, there is no dispute that Petitioner remained operational at the 430 Kele Street address at the time of the site surveys.  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 (2018).
I conclude that:
Petitioner was not operational at the practice location address on file with CMS and the MAC when site reviews occurred and that is a basis for revocation under 42 C.F.R. § 424.535(a)(5)(i); and
Petitioner has failed to show compliance with the enrollment requirement established by 42 C.F.R. § 424.516(d)(1)(iii) to report its change of practice location within 30 days and that is a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(5)(ii) and (9).
Petitioner argues that it used the 430 Kele Street address on all claims and that should have been sufficient notice to the MAC of the change of address.  RFH at 2; P. Br. at 1.  However, this is no defense for Petitioner.  Whether or not the MAC and CMS could have determined Petitioner’s practice location after investigation is not the issue.  Petitioner failed to comply with the Medicare conditions for maintaining enrollment by failing to ensure that its reports of its change of practice location were timely received by the MAC and CMS.
Accordingly, I conclude Petitioner violated requirements for enrolling and maintaining enrollment in Medicare and there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(5) and (9).
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Having found that there is a basis for revocation, I have no authority to review the exercise of discretion by CMS to revoke Petitioner’s Medicare enrollment and billing privileges.  *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).
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 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).  Petitioners do not dispute that its practice location at 53 Puuenne Avenue was not operational when the first site review occurred on August 22, 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 Petitioners’ **practice location** was no longer operational.  Therefore, August 22, 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).
Page 12
To the extent that Petitioners’ 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, Petitioners’ Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(5)(i) and (ii) and 424.535(a)(9).  The effective date of revocation is August 22, 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. The signatures on the CMS-855B for Petitioner (the practice group) and the CMS-855I for Deborah A. Jacob are dated January 15, 2015. CMS Ex. 1 at 47, 90. The date appears to be incorrect given that the reported change of practice location did not occur until January 2016. I need not resolve the possible inconsistency as on summary judgment I do not weigh the evidence but draw all favorable inferences for Petitioner. I infer that the applications were actually signed by Deborah A. Jacob in January 2016. back to note 3 Back to top
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