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                              Steven B. DeWilde, D.O., DAB CR5040 (2018)
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Steven B. DeWilde, D.O., DAB CR5040 (2018)








  
  
    

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





Steven B. DeWilde, D.O.,
	(NPI: 1629507975),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-17-1178Decision No. CR5040March 14, 2018

        
              
    

      DECISION
The Medicare­ enrollment application of Petitioner, Steven B. DeWilde, D.O., is denied pursuant to 42 C.F.R. § 424.530(a)(3).1
I.  Background
Wisconsin Physicians Service (WPS), the Medicare administrative contractor (MAC) for the Centers for Medicare & Medicaid Services (CMS), notified Petitioner by letter dated June 15, 2017, that his application to enroll in Medicare was denied.  WPS stated that the denial was pursuant to 42 C.F.R. § 424.530(a)(2) and (3) because Petitioner was convicted of a felony within ten years of receipt of his enrollment application and because he was excluded from Medicare by the Inspector General (I.G.), U.S. Department of Health and Human Services.  CMS Exhibit (Ex.) 4.
Petitioner requested reconsideration on July 6, 2017.  CMS Amended Ex. 1 at 4; CMS Ex. 5 at 1-2.  On July 27, 2017, WPS issued a letter that states that it was issued in response to a corrective action plan.  The WPS letter does not state that it was issued in
Page 2
response to Petitioner’s request for a reconsidered determination.  Considering the numerous other errors in the letter including referring to Petitioner as a provider rather than a supplier; a citation to 42 C.F.R. § 424.535, which establishes grounds for revocation rather than denial of enrollment; and that the phrasing of the letter is consistent with a reconsidered determination, I conclude that references in the letter to “corrective action plan” are simply careless clerical errors and that the determination is, in fact, a reconsidered determination.  WPS upheld the denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(2) and (3) on reconsideration based on Petitioner’s felony conviction and his exclusion from Medicare by the I.G.  CMS Ex. 1; CMS Amended Ex. 1 at 1-3.  On December 8, 2017, CMS reopened the reconsidered determination and issued a revised reconsideration determination upholding denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(2) and (3).2
  CMS Ex. 10 at 1-7.
On September 15, 2017, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ).  On September 26, 2017, the case was assigned to me for hearing and decision, and I issued an Acknowledgment and Prehearing Order (Prehearing Order).
On October 26, 2017, CMS filed its prehearing brief in support of “summary affirmance” (CMS Br.), which I construe to be a motion for summary judgment,3
 and CMS exhibits 1 through 9.  CMS filed CMS Amended Ex. 1 on November 3, 2017.  On November 21, 2017, Petitioner filed a prehearing brief (P. Br.) and Petitioner’s exhibits (P. Exs.) 1 through 20.  CMS filed its reply brief (CMS Reply) and CMS Ex. 10 on December 11, 2017.  Petitioner filed a sur-reply (P. Sur-reply) and P. Ex. 21 on December 18, 2017.
Page 3
Petitioner has not objected to my consideration of CMS Exs. 1 through 10 and CMS Amended Ex. 1, and they are admitted as evidence.4
  P. Ex. 1 is the I.G. letter reinstating Petitioner’s eligibility to participate in Medicare effective August 10, 2017.  CMS does not object to my consideration of P. Ex. 1 and it is admitted.  CMS objects to my consideration of Petitioner’s exhibits 2, 5, 6, 10, 11, 12, 13, 18, 19, and 20 pursuant to 42 C.F.R. § 498.56(e)(2)(ii), on grounds they are new documentary evidence and Petitioner has not established good cause for offering them for the first time before me.  CMS Reply at 7-8.  P. Ex. 2 is an October 3, 2017 letter from the Office of Personnel Management (OPM) advising Petitioner that his OPM debarment, which became effective November 15, 2005, ended effective August 10, 2017, because the I.G. ended Petitioner’s exclusion from participating in Medicare effective that date.  Pursuant to 42 C.F.R. § 498.56(e), when new documentary evidence is offered for the first time at the ALJ level, I must determine whether good cause exists for offering the evidence for the first time at this level.  The date on the OPM letter shows it did not exist at the time of the initial reconsidered determination on July 27, 2017.  The letter is relevant, though cumulative of P. Ex. 1, as it shows that the I.G. exclusion of Petitioner ended.  The letter is not cumulative to the extent it shows that the OPM debarment, a separate ground for denial of enrollment under 42 C.F.R. § 424.530(a)(2)(ii), had ended.  The letter was made part of the record in this case and was available for CMS to consider at the time of the reopened and revised reconsidered determination on December 8, 2017.  I find there is good cause to admit P. Ex. 2.  CMS does not object to my consideration of P. Exs. 3, 4, 7, 8, 9, 14, 15, 16, 17, and 21 and they are admitted.  P. Exs. 5, 6, 19, and 20 are letters of reference; P. Exs. 10, 11, 12, and 13 are certificates issued in 1986, 1987, 1988, and 1989, reflecting that Petitioner was issued a degree as a Doctor of Osteopathy, he completed an internship and residency, and was certified in general practice; and P. Ex.
Page 4
18 is an Alcoholics Anonymous attendance sheet.  The only issue before me is whether CMS or the MAC had a basis to deny Petitioner’s enrollment in the Medicare program.  42 C.F.R. §§ 424.545; 498.3(b)(17); 498.5(*l*)(2); *Letantia Bussell, M.D.*, DAB No. 2196 at 12-13 (2008).  In deciding the issue before me I may only admit evidence that is relevant and material; that is, the evidence has a tendency to make the existence of a fact of consequence more or less probable than without the evidence.  42 C.F.R. § 498.60(b)(1); Fed. R. Evid. 401.  P. Exs. 5, 6, 10, 11, 12, 13, 18, and 20 do not help me resolve whether or not CMS or the MAC had a basis to deny Petitioner’s enrollment in Medicare and those exhibits are excluded as they are not relevant.
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.5
  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioner is a supplier under the Act.
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 denial of enrollment and revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505, a supplier such as Petitioner must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.
Page 5
The Secretary has delegated the authority to accept or deny enrollment applications to CMS.  Pursuant to the Secretary’s regulations, CMS may deny a provider’s or supplier’s enrollment application for any of the reasons set out in 42 C.F.R. § 424.530(a).  In this case, CMS denied Petitioner’s application under 42 C.F.R. § 424.530(a)(2) and (3), which provide in pertinent part:
(a)  *Reasons for denial*.  CMS may deny a provider’s or supplier’s enrollment in the Medicare program for the following reasons:
* * * *
(2) *Provider or supplier conduct*.  A provider, supplier, an owner, managing employee, an authorized or delegated official, medical director, supervising physician, or other health care personnel furnishing Medicare reimbursable services who is required to be reported on the enrollment application, in accordance with section 1862(e)(1) of the Act, is—
(i) Excluded from the Medicare, Medicaid and any other Federal health care programs, as defined in §1001.2 of this chapter, in accordance with section 1128, 1128A, 1156, 1842, 1862, 1867 or 1892 of the Act.
(ii) Debarred, suspended, or otherwise excluded from participating in any other Federal procurement or nonprocurement activity in accordance with section 2455 of the Federal Acquisition Streamlining Act (FASA).
(3)  *Felonies*.  The provider, supplier, or any owner or managing employee of the provider or supplier****was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.
(i)  Offenses include, but are not limited in scope or severity to —
(A) Felony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual
Page 6
was convicted, including guilty pleas and adjudicated pretrial diversions.
(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.
(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that results in a conviction of criminal neglect or misconduct.
(D) Any felonies that would result in mandatory exclusion under section 1128(a) of the Act.
(ii)  Denials based on felony convictions are for a period to be determined by the Secretary, but not less than 10 years from the date of conviction if the individual has been convicted on one previous occasion for one or more offenses.
42 C.F.R. § 424.530(a)(2) and (3)6
; Act §§ 1842(h)(8), 1866(b)(2)(D).
A prospective supplier whose enrollment application has been denied may request reconsideration and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. § 424.545(a).  A prospective supplier submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a), (b).  CMS or its contractor must give notice of its reconsidered determination to the prospective supplier, giving the reasons for its determination, specifying the conditions or requirements the prospective supplier failed to meet, and advising of the right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the prospective supplier, the prospective 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.  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 prospective supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c).
Page 7
**B. Issues**
Whether summary judgment is appropriate; and
Whether there was a basis for the denial of Petitioner’s application to enroll in the Medicare program.
**C.  Findings of Fact, Conclusions of Law, and Analysis**
My conclusions of law are set forth in bold text followed by my findings of fact and analysis.
**1.  Summary judgment is appropriate.**
CMS requested summary judgment.  I construe Petitioner’s pleadings as opposing summary judgment.  Petitioner, a supplier denied enrollment in Medicare, has a right to a hearing and judicial review, and a hearing on the record is required under the Act.  Act §§ 205(b), 1866(h)(1), (j); 42 C.F.R. §§ 498.3(b)(1), (5), (6), (8), (15), (17), and 498.5; *Crestview*, 373 F.3d at 748-51.  A party may waive appearance at an oral hearing but must do so affirmatively in writing and Petitioner has not waived oral hearing in this case.  42 C.F.R. § 498.66.  Petitioner has not consented to a decision based only upon the documentary evidence and pleadings.  Accordingly, disposition on the written record alone is not permissible, unless CMS’s motion for summary judgment has merit.
Summary judgment is not automatic upon request but is limited to certain specific conditions.  The procedures applicable to the adjudication of this case are at 42 C.F.R. pt. 498.  The regulations do not establish or recognize a summary judgment 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.  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.
Page 8
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.  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 differs 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 F. App’x 181 (6th Cir. 2005).
In this case, I conclude that there is no genuine dispute as to any material fact pertinent to a denial of enrollment under 42 C.F.R. § 424.530(a)(3) that requires a trial.  There is no dispute that Petitioner was convicted of a felony within the ten years preceding his application to enroll in Medicare and the revised reconsidered determination.  Petitioner admits that, on June 2, 2009, he pleaded guilty in the Oakland County Michigan Circuit Court to one count of fleeing and eluding the police, a fourth degree felony.  CMS Ex. 9.  Petitioner does not dispute that his conviction occurred within the ten years preceding the
Page 9
filing of the enrollment application that Petitioner signed on June 9, 2017.  CMS Ex. 2 at 1.  These undisputed material facts establish a basis for the denial of Petitioner’s enrollment in Medicare under 42 C.F.R. § 424.530(a)(3) as a matter of law.  Accordingly, I conclude that summary judgment is appropriate.
**2.  Petitioner was convicted, within the meaning of 42 C.F.R. § 1001.2, of a state felony offense.**
**3.  The Secretary has given broad discretion to CMS to determine which state or federal felony convictions are detrimental to the Medicare program or its beneficiaries.  42 C.F.R. § 424.530(a)(3); 79 Fed. Reg. 72,500, 72,531-32 (Dec. 5, 2014).**
**4.  There is a basis for denial of Petitioner’s enrollment in Medicare pursuant to 42 C.F.R. § 424.530(a)(3) based upon Petitioner’s state felony conviction which CMS has determined is detrimental to Medicare and its beneficiaries.**
**5.  The issue for hearing and decision is whether there is a basis for denial of Petitioner’s Medicare enrollment and, if there is a basis for denial, my jurisdiction does not extend to review of whether CMS properly exercised its discretion to deny Petitioner’s Medicare enrollment application.**
**a.  Facts**
The facts material to the denial of Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.530(a)(3) are undisputed.
On or about June 2, 2009, Petitioner pleaded guilty in the Oakland County Michigan Circuit Court to one count of fleeing and/or eluding police on or about May 2, 2009, a fourth degree felony in violation of Mich. Comp. Laws § 750.479a(1) (2012).7
750.479a(1). An operator of a motor vehicle or vessel who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the operator to bring his or her motor vehicle or vessel to a stop shall not willfully fail to obey that direction by increasing the speed of the vehicle or vessel, extinguishing the lights of the vehicle or vessel, or otherwise attempting to flee or elude the police or conservation officer. This subsection does not apply unless the police or conservation officer giving the signal is in uniform and the officer's vehicle or vessel is identified as an official police or department of natural resources vehicle or vessel.
(2) Except as provided in subsection (3), (4), or (5), an individual who violates subsection (1) is guilty of fourth-degree fleeing and eluding, a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.
Page 10
Petitioner was sentenced on August 11, 2009, to 60 days in jail followed by two years of probation.  CMS Ex. 9 at 1-3; P. Br. at 3-4, 6; P. Sur-reply at 1-2.  There is no dispute that the I.G. excluded Petitioner from participation in Medicare, Medicaid, and all federal healthcare programs effective September 20, 2005, pursuant to section 1128(a)(4) of the Act based on his 2005 felony controlled substance conviction.  CMS Ex. 3.  However, there is also no dispute that Petitioner’s eligibility to participate in Medicare was approved by the I.G. effective August 10, 2017, a fact considered when the revised reconsidered determination was issued on December 8, 2017.  P. Ex. 1; CMS Ex. 10 at 2-3.
On or around June 9, 2017, Petitioner’s prospective employer, Alcona Health Services, submitted a Medicare enrollment application (CMS-855I) on Petitioner’s behalf using the Provider Enrollment, Chain, and Ownership System (PECOS).  CMS Ex. 2 at 1, 4; CMS Ex. 10 at 3; P. Br. at 9; P. Sur-reply at 1.  It is undisputed that Petitioner’s 2009 Michigan felony conviction of fleeing and eluding police occurred within the ten years preceding the filing of the CMS-855I enrollment application in June 2017.
**b.  Analysis**
The revised reconsidered determination cited both 42 C.F.R. § 424.530(a)(2) and (3) as the bases for denial of Petitioner’s enrollment in Medicare.  CMS needs only one basis for denial.  Based on the following analysis, I conclude that there is a basis for denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(3) but not 42 C.F.R. § 424.530(a)(2).
In recent regulatory changes, the Secretary has delegated unfettered discretion to CMS to decide what constitutes a felony offense detrimental to the best interests of the Medicare
Page 11
program and its beneficiaries under 42 C.F.R. § 424.530(a)(3).  79 Fed. Reg. 72,500, 72,531-32 (Dec. 5, 2014).  Effective February 3, 2015, 42 C.F.R. § 424.530(a)(3) was amended to permit CMS to determine that a felony is detrimental to Medicare or its beneficiaries even if it is not one described in 42 C.F.R. § 424.530(a)(3)(i).  The preamble8
 to the revised regulation states:
First, we proposed to modify the list of felonies in each section such that any felony conviction that we determine to be detrimental to the best interests of the Medicare program and its beneficiaries would constitute a basis for denial or revocation.  We stated that considering the very serious nature of any felony conviction, our authority in §§ 424.530(a)(3)(i) and 424.535(a)(3)(i) should not be restricted to the categories of felonies identified in (a)(3)(i); this was especially true considering that the types of felony offenses often vary from state to state.
79 Fed. Reg. 72,500, 72,509-10*.*The revised reconsidered determination dated December 8, 2017, shows that CMS specifically exercised its new discretion and determined that Petitioner’s offense was detrimental to Medicare and its beneficiaries.  CMS Ex. 10 at 4-5.  As noted above, my discretion in this case is limited to determining whether CMS had a basis for denial of enrollment under 42 C.F.R. § 424.530(a)(3). *Letantia Bussell, M.D.*, DAB No. 2196 at 13.  It is undisputed that Petitioner was convicted of a state felony within the ten years preceding his application to enroll and the revised reconsidered determination.  CMS has determined using its delegated authority that Petitioner’s felony was detrimental to Medicare and its beneficiaries.  CMS Reply at 5-7.  I have no authority to review the determination of whether or not the offense was detrimental.
Accordingly, I conclude that there is a basis to deny Petitioner’s enrollment in Medicare pursuant to 42 C.F.R. § 424.530(a)(3).  I have no authority to review the exercise of discretion by CMS or its contractor to deny enrollment where there is a basis for such action.  *Abdul Razzaque Ahmed, M.D.*, DAB No. 2261 at 19 (2009), *aff’d*, *Ahmed v. Sebelius*, 710 F. Supp. 2d 167 (D. Mass. 2010).
Page 12
The revised reconsidered determination is the determination subject to my review as clarified by the Board in *Neb Group of Arizona LLC*, DAB No. 2573 at 7.  CMS indicates in the revised reconsidered determination that denial of Petitioner’s application to enroll was also pursuant to 42 C.F.R. § 424.530(a)(2), based on Petitioner’s exclusion by the I.G.  I note, however, that Petitioner was no longer excluded by the I.G. at the time of the revised reconsidered determination.  Because Petitioner was not “excluded” at the time of the revised reconsidered determination, there was no basis for denying enrollment under the authority delegated to CMS by 42 C.F.R. § 424.530(a)(2), which by its language is limited to the status of being currently excluded.
Petitioner raises several arguments which I have no discretion to consider in deciding this case.  Whether or not the Michigan state court judge thought Petitioner’s conviction is serious is not a permitted consideration.  Petitioner was convicted of a felony and that is the severity specifically required under 42 C.F.R. § 424.530(a)(3).  Petitioner’s rehabilitation, the fact he and his family have suffered due to his conviction and exclusion, the fact that his eligibility to enroll in Medicare was reinstated by the I.G., the fact that OPM removed the bar, and the fact that there may be a demand for Petitioner’s services, are all facts that I am not permitted to consider given my narrow scope of review.  Further, to the extent that Petitioner’s arguments may be construed as a request for equitable relief, I have no authority to grant equitable relief.  *US Ultrasound*, DAB No. 2302 at 8 (2010).  Furthermore, I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or ultra vires.  *1866ICPayday.com, L.L.C.*, DAB No. 2289 at 14 (2009) (noting that “[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 was a basis to deny Petitioner’s application to enroll in Medicare pursuant to 42 C.F.R. § 424.530(a)(3).


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated. back to note 1
                      2. In its December 8, 2017 notice, CMS states that it reopened the reconsidered determination dated November 28, 2017. However, I find no evidence of a reconsidered determination issued by WPS or CMS on November 28, 2017. I need not resolve whether CMS intended to refer to the July 27, 2017 reconsidered determination issued by WPS, as it is the December 8, 2017 revised reconsidered determination that is subject to my review. back to note 2
                      3. Summary judgment is the term of art used to refer specifically to the procedures described by Fed. R. Civ. P. 56(a) and related cases. The term “summary affirmance” is imprecise and does not refer to the specific procedural device used to affirm a decision or determination without according due process rights provided by law. back to note 3
                      4. Petitioner states in his sur-reply that CMS Ex. 10 was filed “at the last minute of the last possible day.” P. Sur-reply at 1. Whether or not that is a correct characterization, it is not grounds for objection to the admission of CMS Ex. 10, which is the reopened and revised reconsidered determination. Pursuant to 42 C.F.R. § 498.30, CMS may reopen and revise any initial or reconsidered determination within 12 months of the notice of the initial determination. The initial determination in this case issued on June 15, 2017, so CMS was well within the 12-month window for reopening and revising the prior MAC reconsidered determination. Furthermore, Petitioner may only request ALJ review of an unfavorable reconsidered determination and only that reconsidered determination is subject to my review. 42 C.F.R. § 498.5(l); Neb Group of Arizona LLC, DAB No. 2573 at 7 (2014); Benson Ejindu, DAB No. 2572 at 5 (2014) (the reconsidered determination is the agency action that is subject to review). Therefore, the existence of the reopened and revised reconsidered determination both establishes and defines my jurisdiction, and it will generally always be admissible as evidence to permit me to determine my jurisdiction. back to note 4
                      5. 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 5
                      6. The current version of 42 C.F.R. § 424.530(a)(3) has been in effect since February 3, 2015. 79 Fed. Reg. 72,500, 72,531-32 (Dec. 5, 2014). back to note 6
                      7. The statute provides in pertinent part: back to note 7
                      8. Each agency submitting a proposed or final rule for publication in the Federal Register must provide a preamble to inform the reader of the basis and purpose of the regulation or proposal. 1 C.F.R. § 18.12. In promulgating regulations, the Secretary must publish the proposed regulation in the Federal Register and allow no fewer than 60 days for public comment. Act § 1871. back to note 8 Back to top
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