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                              Cheryl Ackerman, MD, DAB No. 3050 (2021)
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Cheryl Ackerman, MD, DAB No. 3050 (2021)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





Cheryl Ackerman, MD
Docket No. A-21-54Decision No. 3050October 18, 2021

        
              
    

      FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Cheryl Ackerman, M.D. (Petitioner), appearing pro se, appeals the decision of an administrative law judge (ALJ) affirming the denial of her Medicare enrollment application as determined by a contractor for the Centers for Medicare & Medicaid Services (CMS).  *Cheryl Ackerman, MD*, DAB CR5843 (2021) (ALJ Decision).  The ALJ upheld the enrollment denial under 42 C.F.R. § 424.530(a)(1) because Petitioner failed to demonstrate compliance with applicable state licensure requirements as required by 42 C.F.R. § 424.516(a)(2).  Specifically, the ALJ concluded that Petitioner failed to show compliance with the conditions of her state medical license, which permit her to practice medicine only in the employ of an approved physician and prohibit her from engaging in the solo practice of medicine.  We affirm the ALJ Decision because it correctly applies the law and is supported by substantial evidence.

Legal Background

CMS administers the Medicare enrollment of health care practitioners through regulations promulgated by the Secretary of Health and Human Services.  Social Security Act (Act) § 1866(j)(1)(A).1
  The requirements for establishing and maintaining Medicare billing privileges are set forth in 42 C.F.R. Part 424, subpart P (sections 424.500-.570).  To participate in Medicare, physicians and other “suppliers” of health care services must be enrolled in the Medicare program.  42 C.F.R. §§ 424.500, 400.202 (defining “Supplier”), 424.502 (defining “Enroll/Enrollment”).  Enrollment confers on a supplier “billing privileges,” *i.e.*, the right to claim and receive Medicare payment for health care services provided to program beneficiaries.  *Id*. §§ 424.500, 424.505.

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To enroll in Medicare, prospective suppliers must submit to a Medicare contractor complete, accurate, and true information on an enrollment application along with all applicable federal and state licenses and certifications and other documentation necessary to establish a supplier’s eligibility to furnish Medicare-covered items or services.  *Id*. §§ 424.510, 424.515, 424.516, 498.2 (defining “Prospective supplier”).

CMS may deny2
 a prospective supplier’s enrollment in the Medicare program for the reasons set out in 42 C.F.R. § 424.530(a), such as when a supplier “is determined to not be in compliance with the enrollment requirements in [42 C.F.R. Part 424,] subpart P or in the enrollment application applicable for its provider or supplier type, and has not submitted a plan of corrective action as outlined in part 488 of this chapter.”  42 C.F.R. §424.530(a)(1).  The “enrollment requirements” in subpart P include section 424.516(a)(2), which requires the supplier to certify and CMS to verify that the supplier is in “[c]ompliance with Federal and State licensure, certification, and regulatory requirements . . . based on the type of services or supplies the . . . supplier type will furnish and bill Medicare.”  *Id*. § 424.516(a)(2).

CMS’s decision to deny a supplier’s Medicare enrollment is an “initial determination” that may be appealed under the procedures at 42 C.F.R. Part 498.  *Id*. § 498.3(a)(1), (b)(17).  The supplier must first request “reconsideration” of the initial determination to deny enrollment and, if dissatisfied with the reconsidered determination, may request a hearing before an ALJ.  *Id*. §§ 498.5(1), 498.22, 498.40.  A party dissatisfied with an ALJ’s decision may request the Departmental Appeals Board (Board) to review the ALJ decision.  *Id*. § 498.80.

Case Background3

On October 24, 2011, Petitioner, a dermatologist, entered into a private letter agreement (Agreement) with the New Jersey State Board of Medical Examiners (New Jersey Board) to resolve eight patient complaints.  CMS Ex. 11, at 1-2; CMS Ex. 13, at 27.  In order to continue practicing medicine in New Jersey, the Agreement required that Petitioner comply with the requirements of the New Jersey Professional Assistance Program (PAP), including undergoing a psychiatric evaluation and providing psychiatric reports to the PAP.  CMS Ex. 11, at 2.  On February 21, 2012, the New Jersey Board suspended Petitioner’s medical license due to her failure to comply with the Agreement and

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concerns regarding her overall fitness to practice medicine.  *Id*.  Because Petitioner’s New Jersey medical license was suspended, her Medicare enrollment and billing privileges were revoked effective February 21, 2012.  CMS Ex. 12, at 1 (¶ 4).

In 2012 and 2013, Petitioner repeatedly sought to have her medical license reinstated in New Jersey.  CMS Ex. 11, at 2.  The New Jersey Board denied her petitions for reinstatement.  *Id*.  Petitioner appealed to the Appellate Division of the Superior Court of New Jersey.  *Id*.  The superior court remanded the matter for a hearing before an administrative law judge.  *Id*.The remand led to settlement negotiations, which resulted in a Consent Order that the New Jersey Board and Petitioner, with the advice of counsel, entered into on November 16, 2015.  *Id*. at 3; CMS Ex. 10 (Consent Order).  The Consent Order reinstated Petitioner’s license to practice medicine in New Jersey subject to various conditions, including the following:

[Petitioner] shall resume the practice of medicine *only in the employ of another physician approved by the Board and shall not engage in solo practice absent approval from the Board*.  [Petitioner] shall report to the Board the name and address of the physician with whom she is employed.  This physician shall evaluate [Petitioner’s] skills to practice medicine and report any concerns regarding [Petitioner’s] practice to the Board’s Medical Director . . . . *[Petitioner] is permitted to seek Board approval to practice in a solo setting after she has practiced in an employment setting for two (2) years*.

CMS Ex. 10, at 2 (¶ 3) (emphasis added).4
  The Consent Order represented the “full, complete, and final resolution” of the matter.  *Id*. at 4 (¶ 11).

On November 25, 2015, the New York State Board for Professional Medical Conduct (New York Board) charged Petitioner with one specification of professional misconduct for having had disciplinary action taken in New Jersey that would, “if committed in New York state, constitute professional misconduct.”  CMS Ex. 13, at 40-41.  In February 2016, following a hearing, the New York Board sustained the charge and imposed a three-year stayed suspension on Petitioner’s license to practice medicine and placed her on probation for three years.  *Id*.at 26, 32.  The terms of probation required Petitioner to comply with the New Jersey Consent Order and obtain approval before recommencing

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the practice of medicine in New York.  *Id*. at 32, 43.  Petitioner appealed the New York Board’s decision.  The Appellate Division of the New York State Supreme Court noted that, in an intervening administrative appeal, the New York Administrative Review Board for Professional Medical Conduct had overturned the suspension of Petitioner’s New York medical license but left undisturbed the probation and practice restrictions.  *See* *Ackerman v. N.Y. State Dep’t of Health*, 64 N.Y.S. 3d 370, 373 (N.Y. App. Div. 2017).  The court upheld the probation and practice restrictions.  *Id*. at 374.

On March 7, 2016, Petitioner requested that the New Jersey Board amend the Consent Order.  CMS Ex. 11, at 1.  Petitioner sought, among other things, an unrestricted medical license, “a pronouncement that [she] has fully complied with all psychological reporting obligations imposed by the Board,” “a guarantee that no further conditions will be placed on [her] license,” and “a guarantee that no further psychological testing of [her] will be required.”  *Id*. at 4.  In an April 26, 2016 order, the New Jersey Board denied the petition, finding that the restrictions on Petitioner’s license were necessary and less restrictive conditions were not appropriate.  *Id*. at 7-9.  After a lengthy discussion of the evidence, the New Jersey Board concluded:

The Consent Order [Petitioner] entered into with the advice of counsel allows her to practice medicine, albeit with protections for the public, and provides a pathway for [Petitioner’s] practice with fewer restrictions.  We find that working under the employ of another physician and continued therapy and testing are necessary conditions at this point in
time.  The Board has determined that in light of the lengthy history of interactions between the Board and [Petitioner] and the evidence discussed above, especially Dr. [S.’s] addendum to his report, the Board cannot at this time safely permit [Petitioner] to practice medicine under less restrictive conditions than those delineated in the November 16, 2015 Consent Order, which the Board declines to amend.

*Id*. at 9.

On April 21, 2020, Novitas Solutions, Inc. (Novitas), a Medicare contractor, received a Medicare enrollment application (CMS-855I) from Petitioner.  CMS Ex. 1.5
  In her application, Petitioner indicated that she held a New Jersey medical license and identified a primary practice location in New Jersey.  *Id*. at 8, 26, 50.  Petitioner wrote: “I am

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planning to treat patients[] [i]n the [sic] my practice[] [a]s Medicare Provider.”  *Id*. at 52.  Petitioner further stated: “Please provide a [n]ew pecos number to treat [M]edicare [p]atients [i]n New Jersey, Licensed 25 MA 06096100.”  *Id*.6
  Her application included no evidence that she was practicing medicine under the employ of another physician approved by the New Jersey Board, as required by the Consent Order, and no evidence that she had received approval from the New Jersey Board to practice medicine independently.

In an initial determination dated April 28, 2020, Novitas denied Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(1) because Petitioner’s medical license prohibited her from practicing medicine as a sole practitioner “absent approval from the New Jersey Medical Board” and “[n]o evidence of approval has been received.”  CMS Ex. 2, at 1.  The initial determination acknowledged the restrictions in the Consent Order, including that Petitioner “shall only resume the practice of medicine in the employ of another physician.”  *Id*.7
  Novitas noted that if Petitioner could correct the deficiencies and establish her eligibility to participate in the Medicare program, she could submit a corrective action plan within thirty days after the date of the letter.  *Id*.  Petitioner was also advised of her right to request reconsideration.  *Id*. at 1-2.

Petitioner submitted a corrective action plan on May 4, 2020, claiming that she had an unrestricted medical license in New Jersey and “a perfect history of [p]racticing [m]edicine [w]ith a [m]edical practice . . . . [t]hat treats Medicare patients.”  CMS Ex. 3, at 11.  On June 22, 2020, Novitas upheld the denial of Petitioner’s enrollment application, finding that the corrective action plan did not correct the deficiencies that led to the denial of her application based on section 424.516(a)(2).  CMS Ex. 6, at 2.Novitas stated that it had confirmed that Petitioner’s New Jersey “medical license continues to include the restrictions set forth in the November 16, 2015 Consent Order,” and Petitioner had not provided evidence to show compliance with the conditions in the Consent Order.  *Id*.

On June 29, 2020, Petitioner requested reconsideration, arguing again that she had an unrestricted medical license and was in compliance with the New Jersey Board.  CMS Ex. 7, at 3.  On September 18, 2020, Novitas issued an unfavorable reconsidered determination, again finding that Petitioner failed to comply with state licensure requirements under the Consent Order and, therefore, was not in compliance with Medicare enrollment requirements under section 424.516(a)(2).  CMS Ex. 9, at 2.

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Novitas explained that based on the Consent Order, Petitioner “is restricted from engaging in the sole practice of medicine absent approval from the [New Jersey] Board, and has not produced evidence indicating that she received approval.”  *Id*.  Accordingly, Novitas upheld the denial of Petitioner’s Medicare enrollment application.  *Id*.

The ALJ Proceedings and Decision

Petitioner timely requested an ALJ hearing on the reconsidered determination.  Request for Hearing (with attachment).  In accordance with the ALJ’s Pre-Hearing Order, CMS filed a pre-hearing brief, motion for summary judgment, and fourteen exhibits, including the written direct testimony of a hearing specialist for Novitas.  CMS argued that the denial of Petitioner’s Medicare application must be upheld because Petitioner failed to demonstrate compliance with applicable state licensure requirements, as required under 42 C.F.R. § 424.516(a)(2), specifically the restrictive conditions set forth in the Consent Order.  CMS Pre-Hearing Br. and Mot. for Summ. J. at 1-2.  CMS argued that “Petitioner did not meet the statutory and regulatory requirements for a physician, as Petitioner was restricted from engaging in the solo practice of medicine absent approval from the NJ Board, and has not produced evidence indicating that she received approval to practice medicine without the supervision of another physician.”  *Id*. at 9.  CMS further noted that Petitioner presented no evidence that “she is no longer subject to the Consent Order or that she is under the supervision of another physician as required.”  *Id*. at 10.

Petitioner filed a brief (docketed January 26, 2021) opposing summary judgment and attached to her filing several documents, which the ALJ accepted as Petitioner’s proposed exhibits.  Petitioner’s Br. in Opp’n to Summ. J. (P. Br.); ALJ Decision at 5.8
  Petitioner asserted that:  (1) she has an unrestricted medical license in New Jersey and the Consent Order was amended by the New Jersey Board; (2) the New Jersey Board acted unfairly and discriminated against her when imposing restrictions on her medical license; and (3) she is an ethical doctor that has not committed crime or fraud, has had a “perfect history” of practicing medicine, and has never been sued for malpractice.  *Id*. at 1-4, 6-14.  On February 17, 2021, the ALJ issued an order closing the record and notifying the parties

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that she would not consider any further submissions.  Order Closing Record, Docket (Dkt.) No. C-21-87.9

The ALJ determined, consistent with her Pre-Hearing Order, that an in-person hearing was unnecessary because Petitioner did not request to cross-examine CMS’s only witness and did not offer the written direct testimony of any witness.  ALJ Decision at 5-6.  The ALJ proceeded to decide the case on the written record and denied CMS’s motion for summary judgment as moot.  *Id*. at 6.  The ALJ made essentially three broad findings of fact/conclusions of law.  First, the ALJ concluded that “CMS had a legal basis to deny Petitioner’s Medicare enrollment application under 42 C.F.R. § 424.530(a)(1)” because Petitioner had “not obtained an unrestricted license in New Jersey and ha[d] not complied with the restrictions placed upon her by the Consent Order.”  ALJ Decision at 7-8.10
  Second, the ALJ determined that “Petitioner may not collaterally attack the decisions of the New Jersey and New York Boards in this forum.”  *Id*. at 8.  Third, the ALJ concluded that “Petitioner’s other arguments, which are essentially equitable, are not a basis to overturn CMS’s determination denying Petitioner’s application to enroll in Medicare.”  *Id*. at 9.

The ALJ further found that, although “Petitioner did not check any box on the Form CMS-855I regarding her practice structure,” Petitioner sought to enroll in Medicare as a solo practitioner.  ALJ Decision at 3 n.3 (citing CMS Ex. 1, at 22).  The ALJ made this finding for two reasons:  (1) “in the face of Novitas’ repeated statements that it had denied Petitioner’s applications because she was proposing to engage in solo practice, Petitioner has not stated, in any submission to Novitas or to [the ALJ], that she intends to practice in a supervised employment setting”; and (2) “in proceedings before the New York Board, Petitioner admitted under oath that the Consent Order prevented her from engaging in solo practice,” she was having difficulty finding employment, and was

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asking the New Jersey Board to allow her to open her own practice because she has many patients.  *Id*.11

Board Proceedings

On April 17, 2021, Petitioner timely filed a Request for Review of the ALJ Decision, reiterating many of the same arguments she made before the ALJ.  Request for Review (RR) at 1-5.12
  First, Petitioner contends her Medicare enrollment application was improperly denied because she has unrestricted medical licenses in New Jersey and New York.  *Id*. at 2-4.  Second, she asserts that she was the victim of legal malpractice and assault and battery in the New Jersey Board proceedings and further asserts that the New Jersey Board and New York Board discriminated against her.  *Id*.at 3.  Finally, Petitioner reiterates her additional requests for relief made before the ALJ, namely that she has a “perfect history” of practicing medicine as a licensed doctor, Medicare provider, and board-certified dermatologist.  *Id*. at 2.

Petitioner attached to her Request for Review several documents she collectively identifies as “Exhibits for Appeal To be reinstated as Medicare Provider.”  *Id*. at 6-29.  These documents included the following new documents not previously submitted to the ALJ:

a copy of a New York registration certificate stating that Petitioner “is registered to practice in New York State through 09/30/2022 as a(n) PHYSICIAN”;
	a letter dated September 22, 2014, from an expert witness retained by Petitioner in connection with a legal malpractice case; and
	a letter dated July 1, 2019, from a licensed clinical social worker directed to the Pennsylvania Board of Medicine concerning Petitioner’s character and competency to practice medicine.Page 9

*Id*. at 8, 10-14, 29.13

None of this evidence was presented to the ALJ.  The regulations applicable to this appeal prohibit the Board from admitting into the record in Medicare enrollment appeals evidence not proffered to the ALJ.  *See Chaplin Liu, M.D.*, DAB No. 2976, at 9 n.4 (2019) (citing 42 C.F.R. § 498.86(a) (“Except for provider or supplier enrollment appeals, the Board may admit evidence into the record in addition to the evidence introduced at the ALJ hearing (or the documents considered by the ALJ if the hearing was waived) . . . .”)).  Accordingly, we exclude this evidence from the record and do not consider it in rendering this decision.  *See id*.14

On May 18, 2021, Petitioner submitted a one-page letter brief reiterating the same arguments made in her Request for Review and providing duplicate copies of documents previously filed.  Board Dkt. 6.  On June 1, 2021, Petitioner submitted another one-page

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letter brief restating arguments previously made and providing duplicate copies of documents already filed.  Board Dkt. 8.

On June 1, 2021, CMS filed its response to Petitioner’s Request for Review, arguing that the ALJ Decision is both supported by substantial evidence and free from legal error.15
  CMS contends, among other things, that the ALJ correctly concluded that CMS had a legal basis to deny Petitioner’s enrollment application because Petitioner was ineligible for enrollment and participation in the Medicare Program.  CMS Br. at 11-14.  CMS further argues that Petitioner is not permitted to collaterally attack the decisions of the New Jersey Board and New York Board.  *Id*. at 14-15.  Finally, CMS argues Petitioner is not entitled to equitable relief.  *Id*.at 19-21.  Petitioner’s deadline to file a reply to CMS’s response was June 21, 2021.

On June 7, 2021, Petitioner filed a one-page letter brief repeating the arguments made in her Request for Review and previous filings.  She attached to her brief duplicate copies of documents already filed and the following new documents not previously submitted to the ALJ:

a black-and-white copy of a picture of an unidentified subject; and
	an x-ray report from Barnabas Health Clara Maass Medical Center dated November 20, 2017, regarding a rib fracture Petitioner sustained.Board Dkt. 7, at 5-6.  As explained earlier, the regulations governing this appeal prohibit the Board from admitting evidence that was not submitted to the ALJ.  *Chaplin Liu, M.D*. at 9 n.4.  Consequently, we exclude these new exhibits from the record and have not considered or relied upon them in reaching our decision.16

On August 23, 2021, the Board received two new submissions from Petitioner in the above appeal.  Both submissions were received by the Civil Remedies Division (CRD) and forwarded to the Board.  The first submission is a two-page letter brief (dated August 8, 2021) with five enclosures and postmarked August 13, 2021.  Board Dkt. 9.  In this submission, Petitioner repeated arguments previously made and attached duplicate copies of documents previously filed.  *Id*.  Petitioner also submitted, for the first time, a copy of a registration card from the New Jersey Office of the Attorney General’s Division of Consumer Affairs certifying that Petitioner has registered as a medical doctor for the

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period of May 12, 2021 to June 30, 2023.  *Id*. at 5.  This is new evidence that was not previously presented to the ALJ and, therefore, it is excluded and will not be considered in this appeal.  *Chaplin Liu, M.D*. at 9 n.4.

The second submission received on August 23, 2021, is an email directed to CRD attorneys dated August 20, 2021, with four attachments.  Board Dkt. 11.  Petitioner again submitted, with one exception, duplicate copies of documents already filed.  *Id*.  Petitioner submitted, for the first time, a copy of a $40.00 money order paid to “State of New Jersey CDS license.”  *Id*. at 2.  This is new evidence that was not previously presented to the ALJ and, therefore, it is excluded and will not be considered in this appeal.  *Chaplin Liu, M.D*. at 9 n.4.

On August 30, 2021, the Board received yet another submission from Petitioner that was received by the CRD and forwarded to the Board.  This third submission is an email directed to a CRD attorney dated August 28, 2021, repeating previous arguments and attaching duplicate copies of documents that were already filed.  Board Dkt. 12.  None of these three submissions was requested by the Board and all three were submitted well after the June 21, 2021 deadline for Petitioner to file a reply.

On August 30, 2021, the Board issued an order making clear that the record is closed and stating that “no further filings will be accepted in this appeal from either party without prior permission from the Board.”  Board Dkt. 13.  Notwithstanding the order, Petitioner made additional filings on September 8, 2021 and September 25, 2021, without seeking prior permission from the Board.  Board Dkts. 14, 15.  We reject Petitioner’s filings submitted in violation of the order and will not consider them in rendering this decision.17

Standard of Review

The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole.  The standard of review on a disputed issue of law is whether the ALJ decision is erroneous.  *See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program*, at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html.

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Analysis

***The ALJ’s conclusion that CMS had a valid legal basis to deny Petitioner’s enrollment is supported by substantial evidence and is not legally erroneous.***“The ALJ’s (and the Board’s) role in an appeal of CMS’s denial or revocation of enrollment in the Medicare program is to determine whether CMS had a legal basis for its action.”  *Dr. Robert Kanowitz*, DAB No. 2942, at 4 (2019).“If it did, then we are bound to affirm the denial or revocation.”  *Id*.  “We do not review CMS’s exercise of discretion in determining to take the action under review.”  *Id*.  The Board has held that, “where CMS is legally authorized to deny an enrollment application, an ALJ cannot substitute his or her discretion for that of CMS (or CMS’s contractor) in determining whether, under the circumstances, denial is appropriate.  Nor can the Board.”  *Brian K. Ellefsen, DO*, DAB No. 2626, at 7 (2015); *see also* *Ronald Paul Belin, DPM*, DAB No. 2629, at 5 (2015) (“[T]he Board has held that, where CMS is legally authorized to deny an enrollment application, neither an ALJ nor the Board itself is empowered to substitute for CMS or its contractor in determining *how* to exercise its discretion.” (original underlining changed to italics)).

Section 424.530(a)(1) authorizes CMS (or its contractor) to deny a prospective supplier’s Medicare enrollment application if the supplier is determined “to not be in compliance with the enrollment requirements in [42 C.F.R. Part 424,] subpart P or in the enrollment application applicable for its provider or supplier type, and has not submitted a plan of corrective action as outlined in part 488 of this chapter.”  One of the enrollment requirements in 42 C.F.R. Part 424, subpart P, is section 424.516(a)(2), which requires that prospective suppliers, such as physicians, be in compliance with state licensure requirements.  The ALJ concluded that CMS had a legal basis to deny Petitioner’s enrollment application under 42 C.F.R. § 424.530(a)(1) because Petitioner was not in compliance with state licensure requirements as required by section 424.516(a)(2).

Specifically, the ALJ found “Petitioner has not shown that she is in compliance with the restrictions that the Consent Order placed on her New Jersey medical license.”  ALJ Decision at 7.  The record evidence shows Petitioner is restricted from engaging in the solo practice of medicine absent approval from the New Jersey Board and is only permitted to practice medicine in the employ of another physician approved by the New Jersey Board.  *Id*. (citing CMS Ex. 10, at 2 (¶¶ 2-3).  As the ALJ found, “Petitioner has offered no evidence . . . demonstrating that she is compliant with the restrictions placed on her New Jersey medical license.”  *Id*. at 7-8.  Petitioner presented no evidence (or argument) that she is practicing under the employ of another physician approved by the New Jersey Board.  Further, the ALJ found “[n]one of the documents Petitioner has offered show that the New Jersey Board granted permission for her to resume practicing medicine as a solo practitioner or to practice medicine if not employed by another physician.”  *Id*. at 8.  Moreover, the record evidence shows Petitioner’s attempt to set

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aside the restrictions in the Consent Order and obtain an unrestricted medical license was rejected by the New Jersey Board.  *Id*. (citing CMS Ex. 11).

In her Request for Review, Petitioner acknowledges that her New Jersey medical license was suspended in 2012, but argues, without citing to any evidence, that the New Jersey Board reinstated her license without restrictions.RR at 3 (“MD license was suspended in 2012[.]  The NJ board reinstated unrestricted MD license.”).  Petitioner’s contention is unsupported by the record evidence.  The Consent Order that reinstated her medical license plainly imposes significant restrictions on her license to practice medicine.  CMS Ex. 10, at 2 (¶¶ 1, 3).  The New Jersey Board denied Petitioner’s request to amend the Consent Order to remove the restrictions.  CMS Ex. 11, at 9 (“[Petitioner’s] emergent motion to amend the November 16, 2015 Consent Order and to immediately remove any and all restrictions on [her] medical license is denied in its entirety.”).  Petitioner presented no order, ruling, letter, or any other documentation from the New Jersey Board showing that the restrictions on her medical license set forth in the Consent Order were ever amended or removed.

Petitioner nevertheless complains that “[a]ll of the facts were ignored,” and the ALJ “did not read the affidavits.”  RR at 2.  We note, however, that the ALJ admitted all of the proposed exhibits Petitioner submitted with her briefing.  ALJ Decision at 5.  We further note that Petitioner did not offer the written direct testimony of any witness in the form of a sworn affidavit or declaration under penalty of perjury.  *Id*. at 5-6.18
  Although the ALJ did not specifically describe each of the documents Petitioner submitted, she acknowledged that “Petitioner submitted a number of documents along with her brief” and “these documents do not show that Petitioner’s New Jersey medical license is unrestricted.”  *Id*. at 8.  We agree.  We will not presume that the ALJ “ignored” evidence merely because the ALJ did not specifically discuss it.  “An ALJ is not required to discuss evidence that does not detract from the ALJ’s findings.”  *Lake Park Nursing & Rehab. Ctr*., DAB No. 2035, at 18 (2006) (citing *Estes Nursing Facility Civic Ctr.*, DAB No. 2000, at 5 (2005)).

Based on assertions made in her Request for Review, Petitioner relies on the following record evidence to support her contention that she has an unrestricted New Jersey medical license:  (1) a registration card from the New Jersey Office of the Attorney General, Division of Consumer Affairs, indicating that Petitioner was registered as a medical doctor in New Jersey from June 27, 2019 to June 30, 2021 (P. Br. at 19); (2) certificates from the American Board of Dermatology indicating that Petitioner was board certified in dermatology in January 2013 (CMS Ex. 1, at 54; ALJ Doc. 4 at 4); (3) a

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certificate indicating that Petitioner was elected as a Fellow of the American College of Physicians in 1997 (CMS Ex. 13, at 57); (4) records of Petitioner’s continuing education credits issued by the American College of Physicians and American Academy of Dermatology from 2010-2015 (CMS Ex. 13, at 59-66); (5) an undated written statement by Dr. W.R. expressing his belief that the Consent Order does not reflect “what the judge ordered” and that Petitioner’s “full unrestricted Medical license[] is reinstated in New Jersey” (P. Br. at 20-21); (6) a letter from the New Jersey Office of the Attorney General, Division of Consumer Affairs, Drug Control Unit, indicating that Petitioner’s CDS registration was active through October 31, 2019 (P. Br. at 25); and (7) a registration card issued by the DEA valid through June 30, 2019 (ALJ Doc. 4 at 12).  As explained below, none of this evidence detracts from the ALJ’s finding that Petitioner “has not obtained an unrestricted license in New Jersey and has not complied with the restrictions placed upon her by the Consent Order.”  ALJ Decision at 8.

The registration card certifying that Petitioner was registered as a medical doctor in New Jersey from June 2019 – June 2021 does not change the fact that Petitioner’s medical license was reinstated, with restrictions, in November 2015.  CMS Ex. 10.  The issue is not whether Petitioner has a New Jersey medical license.  Indeed, the registration card is consistent with the undisputed fact that the New Jersey Board reinstated Petitioner’s medical license.  The registration card, however, does not establish that the New Jersey Board amended or set aside the restrictions on her medical license as set forth in the Consent Order.  The same is true with respect to the documents showing Petitioner was board certified in dermatology in 2013, was issued credits for continuing medical education from 2010-2015, and was elected as a Fellow of the American College of Physicians in 1997.  Although Petitioner has a New Jersey medical license, none of this evidence shows that the restrictions on her medical license imposed by the Consent Order were set aside.

Petitioner also points to an undated written statement (not made under penalty of perjury) by Dr. W.R.  P. Br. 20-21.19
  Dr. W.R. writes that he attended a November 10, 2015 “meeting” relating to the Consent Order.  *Id*. at 20 (¶ 5).  According to Dr. W.R., New Jersey Office of Administrative Law ALJ Gerson “asked the NJ board to reinstate the FULL unrestricted medical license [i]n New Jersey.”  *Id*. at 20-21 (¶¶ 5-6).  Dr. W.R. further wrote:  “[Petitioner] is fit to practice medicine, that is why her full unrestricted Medical license[] is reinstated in New Jersey.  The order that was written was not what the judge ordered[.]  The judge recommended that her FULL unrestricted medical license [b]e immediately reinstated in New Jersey to practice medicine[.]”  *Id*. at 21 (¶ 11).  Notably, the New Jersey Board rejected this same argument when Petitioner made it in connection with her petition to amend the Consent Order.  CMS Ex. 11, at 4-5.

Page 15

Dr. W.R.’s written statement misconstrues the Consent Order and reflects confusion about the process that led to the reinstatement of Petitioner’s medical license, with restrictions, pursuant to the Consent Order.  Although ALJ Gerson facilitated settlement discussions, the Consent Order was not issued or ordered by ALJ Gerson.  *See* CMS Ex. 10; CMS Ex. 11, at 4-5 (“ALJ Gerson did not order the Board to enter an unrestricted license for [Petitioner].  Rather, the ALJ facilitated settlement negotiations that resulted in the Consent Order at issue here.”).  Regardless of what ALJ Gerson may have “recommended” during settlement discussions, the Consent Order entered into by Petitioner and the New Jersey Board plainly restricted Petitioner’s New Jersey medical license.  Dr. W.R.’s written statement does not identify the factual basis for his assertion that Petitioner’s medical license was reinstated in New Jersey without restrictions.  He also fails to identify any order, ruling, letter, or other document from the New Jersey Board that reinstated Petitioner’s medical license without restrictions.

We are unpersuaded by the conclusory and unfounded assertions made by Dr. W.R., who did not appear as a witness or submit written direct testimony before the ALJ.  His written statement reflects confusion about the process that led to the Consent Order, misconstrues how the Consent Order was established, and is contradicted by the terms of the Consent Order and subsequent Order of the New Jersey Board denying Petitioner’s motion to remove the restrictions on her medical license.  CMS Exs. 10, 11.  Dr. W.R.’s undated statement is plainly insufficient to establish that Petitioner has an unrestricted medical license in New Jersey.20

Petitioner also submitted a letter dated March 1, 2019 from the New Jersey Office of the Attorney General, Division of Consumer Affairs, Drug Control Unit that states Petitioner’s “CDS Registration . . . is Active” with an expiration date of October 31, 2019.  P. Br. at 17.  The letter also states that “[n]o public disciplinary action has been taken against the [Petitioner].”  *Id*. Similarly, Petitioner submitted to the ALJ a copy of her DEA registration card that expired on June 30, 2019.  ALJ Doc. 4 at 12.  Apart from the fact that both registration cards expired before Petitioner submitted her Medicare enrollment application, the evidence is irrelevant and immaterial.  The fact that Petitioner registered with state and federal agencies to prescribe controlled substances does not mean the New Jersey Board set aside the restrictions on her license to practice medicine

Page 16

as set forth in the Consent Order.  Moreover, even if there had been no disciplinary action against Petitioner’s CDS registration, the record evidence is uncontroverted that Petitioner’s medical license was suspended and reinstated subject to the restrictions in the Consent Order.  CMS Exs. 10, 11.  The fact that Petitioner maintained state and federal registrations to prescribe controlled substances falls far short of establishing that the New Jersey Board removed the restrictions on Petitioner’s medical license.

Petitioner further argues that she has an unrestricted license to practice medicine in New York.  RR at 3, 4.21
  The status of Petitioner’s New York medical license is immaterial in this case.  In her application, Petitioner sought to enroll in Medicare based only on her New Jersey medical license and a New Jersey practice location.  CMS Ex. 1, at 8, 26, 50.  The regulations provide that a physician must be “legally authorized to practice by the State in which he or she performs the functions or actions, and who is acting within the scope of his or her license . . . .”  42 C.F.R. § 410.20(b); *see also* *Akram A. Ismail, M.D.*, DAB No. 2429, at 9 (2011) (“The ‘State licensure’ requirement in section 424.516(a)(2) must be read in a manner consistent with the regulatory and statutory provisions requiring that a physician be ‘legally authorized to practice’ medicine by the state in which he performs the actions. [Social Security] Act § 1861(r); 42 C.F.R. § 410.20(b).”); *Meindert Niemeyer*, *M.D.*, DAB No. 2865, at 6 (2018) (“The enrollment requirements include regulations that require a physician to have a valid medical license *in the state in which the physician practices*.” (citing 42 C.F.R. §§ 424.516(a)(2) and 410.20(b) (emphasis added))).  Thus, regardless of the status of Petitioner’s New York medical license, Novitas had a legal basis to deny Petitioner’s enrollment application because she failed to show compliance with licensure requirements in the State of New Jersey where, according to her application, she sought to provide services to Medicare beneficiaries.

For all of these reasons, we find that substantial evidence supports the ALJ’s conclusion that CMS had a legal basis to deny Petitioner’s Medicare enrollment application because Petitioner was not in compliance with state licensure requirements as required by 42 C.F.R. §§ 424.530(a)(1) and 424.516(a)(2).

Page 17

***The ALJ did not err in concluding that she had no authority to review Petitioner’s collateral attacks of the decisions of the New Jersey Board and New York Board.***As she argued before the ALJ, Petitioner contends that the New Jersey Board and New York Board acted unfairly and discriminated against her when they imposed restrictions on her medical licenses.  RR at 1-5.  She argues that the New Jersey Board discriminated against her because she is a woman and a victim of assault and battery.  *Id*. at 3.  She also asserts individuals involved in the New Jersey Board proceedings assaulted her and that the attorney who represented her at those proceedings was negligent.  *Id*. at 2-3.  The ALJ determined that she had no authority to review these issues.  ALJ Decision at 8-9.22

Petitioner’s allegations of discrimination and legal malpractice in the underlying state administrative proceedings amount to collateral attacks that neither the ALJ nor the Board have authority to review.  “[T]he regulations governing this proceeding authorize hearing and appeal rights only with respect to specific *federal agency* determinations.” *Douglas Bradley, M.D*., DAB No. 2663, at 16 (2015) (citing 42 C.F.R. §§ 498.3, 498.5).  “Nothing in those regulations, or in the Medicare statute, even remotely suggests that they were intended [to] provide a forum to collaterally challenge adverse decisions by federal or state courts or non-federal regulatory bodies.”  *Id*.

The ALJ, therefore, did not err in rejecting Petitioner’s allegations of discrimination and legal malpractice as impermissible collateral attacks on the underlying state administrative proceedings and in determining that her review was limited to whether CMS (through its contractor) had a legal basis to deny Petitioner’s enrollment application.  ALJ Decision at 8-9.

***The ALJ correctly rejected Petitioner’s arguments based on equitable grounds.***Petitioner contends that she has a “perfect history” of practicing medicine as a licensed medical doctor for thirty years and a Medicare provider for twenty-eight years.  RR at 2.  She argues that she has not been excluded from Medicare by the Inspector General and does not owe Medicare any money.  *Id*.at 4.  Petitioner also states that she is board certified in dermatology, has maintained a certification in internal medicine, and is not a felon.  *Id*.  She adds that she should be reinstated as a Medicare provider to provide treatment for geriatric patients.  *Id*.  The ALJ found these arguments provided no basis to overturn the denial of Petitioner’s enrollment application to the extent they are based on equitable considerations.  ALJ Decision at 9.

Page 18

We agree with the ALJ and further find that Petitioner’s contentions are not relevant to the issues before us.  Petitioner’s enrollment application was not denied because Novitas found she was excluded from Medicare by the Inspector General, owed Medicare money, or was a felon.  Moreover, Petitioner’s prior experience delivering services to Medicare beneficiaries, along with her medical certifications, do not excuse her from satisfying Medicare enrollment requirements, including compliance with state licensure requirements.  “Nothing in the Medicare statute and regulations authorizes the Board to ignore, waive, or otherwise make an exception” to the limitations on Medicare enrollment “on the ground that Petitioner is professionally competent . . . or because [her] enrollment could benefit Medicare or its beneficiaries.”  *Sheldon* *Pinsky, Ph.D., LICSW*, DAB No. 2412, at 3 (2011).  “The ALJ and the Board are authorized to determine only whether Petitioner has, in fact, met applicable enrollment requirements.”  *Id*.

To the extent Petitioner’s arguments amount to a request for equitable relief, neither the ALJ nor the Board is authorized to overturn an enrollment denial on equitable grounds.  “The applicable regulations . . . do not provide for consideration of such equitable arguments in ALJ or Board appeals of CMS enrollment determinations.”  *Amber Mullins, N.P*., DAB No. 2729, at 5 (2016).  The Board “has consistently held that neither it nor an ALJ may provide equitable relief[.]”  *Id*. at 6 (citing *US Ultrasound*, DAB No. 2302, at 8 (2010) (“Neither 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.”); *Pepper Hill Nursing & Rehab. Ctr., LLC*, DAB No. 2395, at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements); *UpturnCare Co., d/b/a Accessible Home Health Care*, DAB No. 2632, at 19 (2015) (holding that the Board may not overturn a Medicare enrollment denial on equitable grounds).  Petitioner has not identified any basis to reverse the ALJ’s decision affirming CMS’s denial of her enrollment application.

Page 19

Conclusion

We affirm the ALJ Decision affirming CMS’s denial of Petitioner’s Medicare enrollment application.


          /s/
        Christopher S. Randolph

                      Board Member
          /s/
        Constance B. Tobias

                      Board Member
          /s/
        Michael Cunningham

                      Presiding Board Member
      1. The current version of the Act can be found at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm. Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section. Cross-reference tables for the Act and the United States Code can be found at http://uscode.house.gov/table3/1935_531.htm and https://www.ssa.gov/OP_Home/comp2/G-APP-H.html. back to note 1
                      2. “Deny/Denial” means “the enrolling provider or supplier has been determined to be ineligible to receive Medicare billing privileges for Medicare covered items or services provided to Medicare beneficiaries.” 42 C.F.R. § 424.502. back to note 2
                      3. The factual information in this section is drawn from the ALJ Decision and the record and is not intended to replace, modify, or supplement the ALJ’s findings of fact. back to note 3
                      4. The Consent Order further required Petitioner to “obtain an FDG-PET scan of her brain,” “arrange for follow-up neurological examinations with a neurologist of her choosing,” “undergo an MRI (with and without contrast) of her brain,” and “continue to attend treatment” with a doctor who was to provide quarterly reports to the New Jersey Board’s medical director regarding Petitioner’s ongoing fitness to practice medicine. CMS Ex. 10, at 2-3 (¶¶ 4-7). The restrictions imposed in the Consent Order were based on “the [New Jersey] Board’s concerns over [Petitioner’s] competence to safely perform the function of a licensee.” CMS Ex. 11, at 5. back to note 4
                      5. Petitioner had previously applied to re-enroll in the Medicare program on multiple occasions, but those applications were either rejected or denied. CMS Ex. 12 at 2-3 (¶¶ 9-10). Petitioner’s prior enrollment applications are not at issue in this appeal. Our decision here pertains only to the application received by Novitas on April 21, 2020. This decision does not resolve Petitioner’s other matter pending before the Board. Docket No. A-21-72. back to note 5
                      6. The Provider Enrollment, Chain, and Ownership System (PECOS) is CMS’s online Medicare enrollment management system. back to note 6
                      7. The requirement in the Consent Order was more restrictive in that any physician that employed Petitioner had to be “approved” by the New Jersey Board. CMS Ex. 10, at 2 (¶ 3). back to note 7
                      8. Although Petitioner did not submit exhibits in the form required by the ALJ’s Pre-Hearing Order, the ALJ nevertheless “accepted the additional documents as Petitioner’s proposed exhibits” because “CMS did not object.” ALJ Decision at 5. Petitioner’s submission also included an objection to CMS Ex. 12, the written direct testimony of the Novitas hearing specialist. Id. The ALJ overruled Petitioner’s objection and admitted all of CMS’s exhibits. Id. Petitioner does not assert in this appeal that the ALJ erred in admitting CMS Ex. 12 and, in any event, we perceive no error in the ALJ’s evidentiary rulings. back to note 8
                      9. Notwithstanding the Order Closing the Record, Petitioner submitted additional documentation to the ALJ on March 3, 2021, including a letter attaching: (1) an on-line “registration renewal – transaction summary” from the New York State Office of the Professions indicating a registration period from “10/01/2020 through 09/30/2022”; and (2) a copy of a New York registration certificate indicating Petitioner was registered to practice as a physician through November 30, 2019. ALJ Doc. 18 at 3, 6. The other documents attached to the letter had already been submitted to the ALJ. It does not appear that the ALJ considered this additional submission because it was docketed after issuance of the ALJ Decision. Petitioner does not assert in this appeal that the ALJ erred in not considering this late-filed submission. Moreover, we find the new documents included with Petitioner’s late submission are irrelevant and immaterial because they fail to show that Petitioner complied with any of the restrictive conditions in the Consent Order and because the status of her New York medical license is immaterial. See infra at 12-13, 16. back to note 9
                      10. The ALJ further found that Petitioner had not shown that she was approved to recommence practicing medicine in New York. ALJ Decision at 8. We address Petitioner’s contentions about the status of her New York medical license below. See infra at 16. back to note 10
                      11. Petitioner does not challenge this finding on appeal and has made no argument that she is practicing medicine in the employ of an approved physician. The ALJ’s finding is consistent with other statements made in Petitioner’s enrollment application about her plan to treat patients in her practice, CMS Ex. 1, at 52, and her assertions before the ALJ (and the Board) that she has an “unrestricted” New Jersey medical license. back to note 11
                      12. In all, Petitioner made three initial submissions to the Board. First, Petitioner submitted a “notice of appeal,” docketed April 27, 2021, indicating her intent to appeal the ALJ Decision. Second, she filed a supplementary document, docketed April 28, 2021, indicating her intent to submit a brief. Third, Petitioner filed what the Board has construed as her Request for Review, docketed April 30, 2021. The pages of Petitioner’s Request for Review and attachments are not numbered. We cite to the page numbers of the PDF as docketed in DAB E-File. back to note 12
                      13. In her Request for Review, Petitioner also submitted copies of the following documents previously filed in the ALJ proceeding:
• a registration card from the New Jersey Office of the Attorney General’s Division of Consumer Affairs certifying that Petitioner has registered as a medical doctor for the period of June 27, 2019 to June 30, 2021 (P. Br. at 19);
• a letter from the New Jersey Office of the Attorney General, Division of Consumer Affairs, Drug Control Unit, certifying that Petitioner’s Controlled Dangerous Substance (CDS) registration is active through October 31, 2019 (P. Br. at 25);
• a January 1997 certificate from the American College of Physicians that states Petitioner “has been elected as a Fellow of the American College of Physicians” (CMS Ex. 13, at 57);
• a copy of her Drug Enforcement Administration (DEA) license (ALJ Doc. 4 at 12);
• Continuing Medical Education Transcript from the American College of Physicians and Continuing Professional Development Record from the American Academy of Dermatology (CMS Ex. 13, at 59-66);
• multiple certificates from the American Board of Dermatology indicating that Petitioner is board certified in dermatology (CMS Ex. 1, at 54; ALJ Doc. 4 at 4); and
• a signed statement by Dr. W.R. (not under penalty of perjury) expressing his belief that Petitioner is “fit to practice medicine” and that the Consent Order does not reflect “what the judge ordered” (P. Br. at 20-21).
RR at 7, 9, 15, 16, 17-21, 24, 25-26. back to note 13
                      14. Even if we could consider admitting this new evidence, it would not help Petitioner and has no bearing on the issues before the Board. None of the documents show that the Consent Order was amended or set aside, that Petitioner is practicing medicine as an employee of a physician approved by the New Jersey Board, or that Petitioner received approval from the New Jersey Board to practice medicine independently. back to note 14
                      15. CMS objected to Petitioner’s submission of new evidence on appeal. CMS Br. at 2-3. We sustain CMS’s objection for the reasons stated herein. back to note 15
                      16. Again, even if we could consider admitting this new evidence, it would not help Petitioner and has no bearing on the issues before the Board. See supra at n.14. back to note 16
                      17. The submissions received and docketed prior to the order were considered by the Board, apart from any new evidence submitted. back to note 17
                      18. The rules applicable to the ALJ proceeding require that “[a]ny written direct testimony must be in the form of a sworn affidavit or declaration under penalty of perjury.” CRD Procedures at 18 (¶ 19.b). back to note 18
                      19. Based on the letter’s content, it appears it was prepared in January 2016. P. Br. 21 (¶ 8). back to note 19
                      20. Although Petitioner does not refer to it in her Request for Review (or in any other submission to the Board), Petitioner also submitted to the ALJ a letter dated May 5, 2019, from N.F., a licensed clinical social worker, to the New York Board in support of Petitioner’s application to recommence the practice of medicine in New York. P. Br. at 16. In the letter, N.F. wrote that “[i]n New Jersey, [Petitioner] has an unrestricted medical license with no probation and no misconduct allegations.” Id. N.F. does not identify the factual basis for his assertion that Petitioner has an unrestricted medical license in New Jersey and does not identify any order, ruling, letter, or other document from the New Jersey Board removing the restrictions on Petitioner’s medical license. Like the written statement by Dr. W.F., we are unpersuaded by the conclusory and unfounded assertion in N.F.’s letter and find this evidence fails to show that Petitioner has an unrestricted medical license in New Jersey. back to note 20
                      21. Petitioner’s contention that she has an unrestricted New York medical license is unsupported by the record evidence. In February 2016, the New York Board entered an order placing Petitioner on probation for three years (which required compliance with the New Jersey Consent Order) and requiring Petitioner, who was no longer practicing medicine in New York, to obtain the approval of the Office of Professional Medical Conduct (OPMC) before recommencing the practice of medicine in New York. CMS Ex. 13, at 32, 43. Those practice restrictions were upheld on appeal. See Ackerman v. N.Y. State Dep’t of Health, 64 N.Y.S. 3d 370, 373-74 (N.Y. App. Div. 2017). Petitioner presented no evidence to the ALJ showing that the New York Board removed these restrictions. ALJ Decision at 8 (finding that Petitioner presented no evidence that she obtained permission to recommence practicing medicine in New York). back to note 21
                      22. Petitioner made similar allegations of discrimination and legal malpractice before the New York Appellate Division, which the court rejected as an impermissible attempt to “relitigate the circumstances underlying the New Jersey Board’s consent order.” See Ackerman, 64 N.Y.S. 3d at 373-74. back to note 22 Back to top
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