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                              Gregory J. Frazer, Au.D., Ph.D., DAB No. 3038 (2021)
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Gregory J. Frazer, Au.D., Ph.D., DAB No. 3038 (2021)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





Gregory J. Frazer, Au.D., Ph.D.
Docket No. A-21-11Decision No. 3038May 3, 2021

        
              
    

      FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Gregory J. Frazer, Au.D., Ph.D. (Petitioner) appeals the decision of an Administrative Law Judge (ALJ) upholding the effective date of Petitioner's reactivation of Medicare billing privileges as determined by a contractor for the Centers for Medicare & Medicaid Services (CMS).  The ALJ upheld the decision to reactivate Petitioner's billing privileges effective October 21, 2019, based on the date Petitioner filed the revalidation application that was subsequently approved by the Medicare contractor.  *Gregory Frazer, AuD*, DAB CR5708 (2020) (ALJ Decision).  The ALJ further concluded that he had no authority to review the Medicare contractor's rejection of Petitioner's earlier April 26, 2019 revalidation application or the deactivation of Petitioner's Medicare billing privileges.  Moreover, the ALJ dispensed with Petitioner's equitable arguments, noting that he may not waive or ignore regulatory requirements based on equitable considerations.  We affirm the ALJ Decision because it correctly applies the law and is supported by substantial evidence.

Legal Background

In order to receive payment by Medicare for services furnished to Medicare beneficiaries, "suppliers" must be approved by CMS for "enrollment" in the program.  *See* 42 C.F.R. §§ 424.500, 424.505, 424.510.1
  "Enrollment" is the process that CMS and its contractors use to identify the supplier, validate the supplier's eligibility to provide items or services to Medicare beneficiaries, identify and confirm a supplier's practice location and owners, and grant the supplier Medicare billing privileges.  *Id*. § 424.502 (defining "Enroll/ Enrollment").  Suppliers include physicians or other practitioners, such as audiologists, that furnish health care services under Medicare.  *See* 42 C.F.R. § 400.202 (defining supplier).

**Page 2**

Once enrolled, suppliers are required to resubmit and recertify the accuracy of their enrollment information at specified intervals as determined by CMS.  *See* 42 C.F.R. §§ 424.515 (describing 5-year revalidation schedule and off-cycle revalidations); 424.516 (describing supplier requirements for maintaining active enrollment).  "CMS contacts [the] supplier directly when it is time to revalidate their enrollment information," and the "supplier must submit to CMS the applicable enrollment application with complete and accurate information and applicable supporting documentation within 60 calendar days." *Id*. § 424.515(a).

CMS may "deactivate" the Medicare billing privileges of a supplier that "does not furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment information."  42 C.F.R. § 424.540(a)(3).  "Deactivate" means that the "supplier's billing privileges were stopped, but can be restored upon the submission of updated information."  *Id*. § 424.502.  In order to reactivate billing privileges, the supplier must recertify that the enrollment information currently on file with Medicare is correct and furnish any missing information as appropriate.  *Id*. § 424.540(b)(1).  In addition, CMS may, for any reason, require a deactivated supplier to submit a new enrollment application as a prerequisite for reactivating billing privileges.  *Id*. § 424.540(b)(2).

CMS may reject a supplier's enrollment application if the "supplier fails to furnish complete information on the . . . enrollment application within 30 calendar days from the date of the contractor request for the missing information" or the "supplier fails to furnish all required supporting documentation within 30 calendar days of submitting the enrollment application."  *Id*. § 424.525(a)(1)-(2).  "Enrollment applications that are rejected are not afforded appeal rights."  *Id*. § 424.525(d).  After CMS rejects an enrollment application, the "supplier must complete and submit a new enrollment application and submit all supporting documentation for CMS review and approval."  *Id*. § 424.525(c).

If CMS approves an enrollment application, the effective date for billing privileges for a practitioner is the later of:  "(1) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) The date that the supplier first began furnishing services at a new practice location."  *Id*. § 424.520(d).2
  In the preamble to the rulemaking that adopted section 424.520, CMS explained that "date of filing" means "the date that the Medicare . . . contractor receives a signed . . . enrollment application that the Medicare . . . contractor is able to process to approval."  73 Fed. Reg. 69,726, 69,766-67 (Nov. 19, 2008); *accord Alexander C. Gatzimos, MD, JD, LLC*, DAB No. 2730, at 15-17 (2016).

**Page 3**

The determination of the effective date of a supplier's billing privileges is an "initial determination" that the supplier may appeal under 42 C.F.R. Part 498.  42 C.F.R. § 498.3(a)(1), (b)(15); *Urology Grp. of N.J.*, DAB No. 2860, at 6 (2018); *Victor Alvarez, M.D.*, DAB No. 2325, at 3 (2010).  A supplier may ask CMS to reconsider the effective date and may request a hearing before an ALJ on the reconsidered determination.  *See* 42 C.F.R. §§ 498.5(l), 498.5(f); *see also Urology Grp.* at 6.  Any party dissatisfied with a hearing decision issued by an ALJ may request review of the ALJ decision by the Board.  *See* 42 C.F.R. § 498.80.

The rejection of a supplier's enrollment application and deactivation of a supplier's billing privileges are not "initial determinations" subject to review by an ALJ or the Board under 42 C.F.R. § 498.3(b).  A supplier whose enrollment application is rejected and whose billing privileges are deactivated may instead file a rebuttal in accordance with 42 C.F.R. §§ 424.545(b), 405.374(a), by filing a written statement with the contractor, "but has no right to appeal the contractor's determination on deactivation to an ALJ or the Board."  *Chaplin Liu, M.D.*, DAB No. 2976, at 3 (2019) (citing 42 C.F.R. §§ 424.525(d), 424.545(b)).

A non-physician practitioner whose enrollment application has been approved may be permitted retrospective billing privileges in accordance with 42 C.F.R. § 424.521.  Under section 424.521(a)(1), a practitioner "may retrospectively bill for services" that were provided up to 30 days (and, in certain disaster situations, up to 90 days) prior to the practitioner's "effective date" if certain circumstances are satisfied.  *See* 42 C.F.R. § 424.521(a)(1)-(2); *see also Richard Weinberger, M.D., and Barbara Vizy*, *M.D.*, DAB No. 2823, at 22 (2017) (discussing regulatory criteria for retrospective billing).

Case Background3

Petitioner is an audiologist enrolled in the Medicare program.  On April 26, 2019, Noridian Healthcare Solutions, LLC (Noridian), a Medicare administrative contractor for CMS, received Petitioner's revalidation application to revalidate his Medicare enrollment.  CMS Ex. 2.4

In a letter dated June 4, 2019, Noridian notified Petitioner's agent that his application was incomplete due to, among other things, a lack of supporting documentation.  CMS Ex. 3, at 1.  The letter directed Petitioner to furnish, among other things, a "[d]iploma, transcript

**Page 4**

or letter from the registrar showing [a] master's or doctoral degree in Audiology."  *Id*.  The letter warned that Petitioner's application may be rejected if complete information is not provided within thirty days.  *Id*. (citing 42 C.F.R. § 424.525).5

In response to Noridian's request for a diploma, transcript, or letter from the registrar, Petitioner provided a copy of his Wayne State University diploma.  *See* CMS Ex. 4, at 5.  The copy of Petitioner's diploma from Wayne State University indicates that he was conferred with a "Doctor of Philosophy" degree.  *Id*.  Beneath the words "Doctor of Philosophy," the word "AUDIOLOGY" appears typed in a smaller and different font, unlike the font used elsewhere on the diploma.  *Id*.

In a letter dated September 3, 2019, Noridian notified Petitioner that his Medicare billing privileges were being deactivated effective September 3, 2019, because he failed to revalidate his enrollment record or respond to requests for more information.  CMS Ex. 5, at 1.  The letter advised Petitioner that he could reactivate his billing privileges by completing an enrollment application either online or by mail.  *Id*.  The letter further advised that Petitioner "will not be paid for services rendered during the period of deactivation."  *Id*. at 2.6
  There is no evidence that Petitioner filed a rebuttal in response to the deactivation determination in accordance with 42 C.F.R. § 424.545(b).

Noridian received a new revalidation application from Petitioner on October 21, 2019.  CMS Ex. 6.  At that time, Petitioner also filed applications for the reassignment of his Medicare benefits to various business entities.  CMS Ex. 7.  These applications included a diploma from the Arizona School of Health Sciences, indicating that Petitioner was awarded the degree of "Doctor of Audiology" in June 2000.  CMS Ex. 7, at 35.  By letters dated December 6, 2019, Noridian notified Petitioner that the various reassignments of benefits were approved.  CMS Ex. 8; CMS Ex. 9, at 10-21.  Noridian's approval of the reassignments is not at issue in this appeal.

By letter dated December 13, 2019, Noridian advised Petitioner that his revalidated Medicare enrollment application (received October 21, 2019) was approved.  CMS Ex. 9, at 6.  The letter advised Petitioner that he "will have a gap in billing privileges from September 3, 2019 through September 20, 2019 for failing to timely submit [his]

**Page 5**

revalidation application."  *Id*.  The letter further advised that if Petitioner disagreed with the effective date, he could request reconsideration.  *Id*. at 8.

On January 10, 2020, Petitioner submitted a timely request for reconsideration of the effective date.  CMS Ex. 9, at 2-3.  Petitioner requested that Noridian "eliminate the gap in billing privileges that now exists from 9/3 – 9/20/19 . . ."  *Id*. at 2.  The request stated: "We understood Medicare's concern was the [Wayne State University] diploma and we made the effort to obtain Dr. Frazer's diploma from a University which did not type the specialty."  *Id*. at 2.  Petitioner included with his request a call log that purported to summarize phone calls Dr. Frazer or others had with representatives of Noridian concerning his rejected April 26, 2019, revalidation application.  *Id*. at 3.7
  According to the call log, the following phone calls allegedly occurred after the September 3, 2019, deactivation of Petitioner's billing privileges:

September 6, 2019 – "Mark states the diploma was received and it looks as if it should not have been denied.  He will send it back and we should call in ten days."
	September 12, 2019 – "Mark has sent the revalidation back to be reworked."
	September 24, 2019 – "We called and spoke with Sandy who said to wait as it is being processed."
	October 1, 2019 – "Penny of Medicare Revalidation dept left a message to call."
	October 1, 2019 – "Returned Penny's call, spoke with George who said the type on the diploma was small and he would send it back for review."
	October 10, 2019 – "Julie called stating they cannot accept the diploma as it appears the specialty has been typed.  We told her we could send a diploma from another University which we had received that day, but she directed us not to send the diploma, but to send a new application with the new diploma."*Id*.

**Page 6**

On April 7, 2020, Noridian issued an unfavorable reconsidered determination.  *See* Letter from Noridian to Petitioner, dated April 7, 2020 ("Reconsidered Determination").8
  Noridian confirmed that Petitioner's April 2019 revalidation application was rejected because "not all the required corrections were received."  *Id*. at 4.  Specifically, the diploma received did not meet Medicare standards.  *Id*. at 3, 4 ("The specialty was not included by the school on the diploma.").  Noridian recounted that Petitioner's billing privileges were deactivated effective September 3, 2019, because he did not timely revalidate his enrollment, which was "due on April 30, 2019."  *Id*. at 3.9
  Noridian confirmed that it received from Petitioner on October 21, 2019, a new revalidation application, which it subsequently approved.  *Id*.  Noridian determined, consistent with section 424.520(d), the earliest effective date of reactivation of Petitioner's billing privileges was October 21, 2019.  *See id*. at 1, 4.  Noridian made clear that Petitioner was permitted to bill for services beginning September 21, 2019, in accordance with 42 C.F.R. § 424.521, which permits retrospective billing for up to 30 days before the supplier's effective date.  *Id*. at 4.  Noridian concluded that no evidence was submitted to support an earlier effective date, and the gap in billing from September 3 – September 20 could not be removed.  *Id*. at 4-5.

The ALJ Proceeding and Decision

Petitioner appealed the reconsidered determination by requesting a hearing before an ALJ.  Petitioner requested that the ALJ "reinstate my billing privileges . . . from September 3, 2019 to September 20, 2019 so I can be reimbursed for the Medicare beneficiaries I provided services to during those dates."  Hearing Request at 3.    Petitioner argued that he made "good faith efforts" to revalidate his enrollment and that Noridian should not have rejected his April 2019 revalidation application.  *Id*.  Petitioner asserted that Noridian should have accepted his Wayne State University diploma that he claims was "on file" with Medicare for 39 years and further complains that he was told it was unnecessary to provide his other two diplomas.  *Id*.10

**Page 7**

CMS filed a pre-hearing brief and motion for summary judgment, arguing that:  (1) the rejection of Petitioner's April 2019 revalidation application and resulting deactivation of billing privileges are not appealable determinations; (2) CMS provided Petitioner with the earliest effective date of reactivated billing privileges under the applicable regulations; (3) CMS is not estopped from denying Petitioner's reconsideration request; and (4) the ALJ does not have jurisdiction to grant Petitioner equitable relief.  CMS Pre-Hearing Brief and Motion for Summary Judgment at 9-15.

Petitioner filed a response, focusing only on the rejection of his April 2019 revalidation application and arguing that Noridian should have accepted his Wayne State University diploma and should not have told him it was unnecessary to submit his other audiology diplomas.  Petitioner's Response to CMS Summary Judgment Motion at 4.  In response to CMS's argument that Noridian had not engaged in affirmative misconduct, such as fraud, which would be required at a minimum to support equitable estoppel against the government, Petitioner argued that he *was* defrauded because "Noridian misrepresented and concealed the material fact that all [he] needed to do in order to meet the requirements set forth in the Medicare regulations regarding [his] Audiology diploma was to submit [his] two other Audiology diplomas."  *Id*. at 3.

On September 11, 2020, the ALJ issued a decision sustaining Noridian's determination to reactivate Petitioner's billing privileges effective October 21, 2019.  ALJ Decision at 1.  The ALJ accepted the parties' exhibits into the record and determined an in-person hearing was unnecessary because neither party submitted written direct testimony of a witness.  *Id*.  Although CMS had moved for summary judgment, the ALJ decided the case based on the written record, not under the summary judgment standard.  *Id*.  The ALJ concluded, based on 42 C.F.R. § 424.520(d)(1), that October 21, 2019, was "the *earliest* date when Petitioner qualified for reactivation" because that was the date Petitioner filed the revalidation application that was subsequently approved.  *Id*. at 2, 3.  The ALJ further concluded that he had no authority to review the rejection of Petitioner's April 2019 revalidation application or the deactivation of his billing privileges.  *Id*. at 3-4.  Finally, the ALJ rejected Petitioner's arguments based on equitable principles, concluding that he "may not waive or ignore regulatory requirements based on equitable considerations."  *Id*. at 4 (citing *US Ultrasound*, DAB No. 2302, at 8 (2010)).

**Page 8**

Board Proceedings

Petitioner timely filed a request for review of the ALJ Decision, reiterating many of the same arguments he made before the ALJ.  Request for Review (RR) at 1-5.11
  First, Petitioner contends Noridian's decision to deactivate his billing privileges is an appealable determination under 42 C.F.R. § 498.3(b)(17) (providing right to appeal the denial or revocation of a supplier's Medicare enrollment).  RR at 3.  Second, he contends Noridian's decision to reject his April 2019 revalidation application was arbitrary and erroneous.  *Id*.  Third, Petitioner asserts a "negligent misrepresentation" claim against Noridian for allegedly misrepresenting the status of his Wayne State University diploma in a manner that caused him to delay submitting two other valid diplomas and resulted in the rejection of his application and a gap in billing privileges.  *Id*. at 3-4.  Fourth, Petitioner claims Noridian should be estopped from "denying" his initial revalidation application because he was assured "over the phone" that an additional diploma was not necessary.  *Id*. at 4.  Petitioner requests that the Board "reverse" Noridian's and the ALJ's findings and "close the billing gap."  *Id*. at 5.

Petitioner attached to his Request for Review an affidavit signed by Dorothy Calhoon, dated October 2, 2020 (RR at 6), along with Wayne State University academic transcripts, date-stamped October 14, 2020 (RR at 10-17).  None of this evidence was presented to the ALJ.  The appeal regulations prohibit the Board from admitting into the record in Medicare enrollment appeals evidence not proffered to the ALJ.  *See Chaplin Liu* at 9 n.4 (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 do not consider this new evidence in rendering this decision.  The affidavit and academic transcripts are retained in the administrative record, but this new evidence is not admitted to the record for decision.  *See id*.12

**Page 9**

CMS filed a response brief arguing that the ALJ Decision is both supported by substantial evidence and free from legal error.  CMS Br. at 4.13
  CMS asserts that the rejection of Petitioner's April 2019 revalidation application and subsequent deactivation of billing privileges are not appealable determinations.  *Id*. at 14-16.  CMS further contends that the ALJ correctly concluded that Petitioner was provided with the earliest effective date for the reactivation of billing privileges.  *Id*. at 16-19.  And, CMS argues Petitioner is not entitled to relief, either under a theory of equitable estoppel or by invoking negligent misrepresentation.  *Id*. at 19-22.

Standard of Review

The Board's standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence; the standard of review on a disputed issue of law is whether the ALJ's decision is erroneous.  *Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's or Supplier's Enrollment in the Medicare Program (Guidelines)*, accessible at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html?language=en.

Analysis

**1.  *The ALJ's conclusion that the effective date of reactivation of Petitioner's billing privileges is October 21, 2019, is supported by substantial evidence and free of legal error.***

Petitioner identifies no error in the ALJ's conclusion based on 42 C.F.R. § 424.520(d)(1) "that the *earliest* effective date of participation of a participating Medicare supplier will be the date when the contractor receives an enrollment application that the contractor accepts."  ALJ Decision at 2 (emphasis in original).  Petitioner does not argue that the ALJ incorrectly cited or applied section 424.520(d)(1).  Petitioner does not dispute the ALJ's finding that Noridian rejected his April 26, 2019 revalidation application and deactivated his Medicare billing privileges effective September 3, 2019.  *Id*. at 3; *see also* CMS Ex. 5.  Petitioner also does not dispute the ALJ's finding that the revalidation enrollment application that Noridian processed to approval was the application he filed on October 21, 2019.  ALJ Decision at 3; *see also* CMS Ex. 6; CMS Ex. 9, at 6.  Based on the applicable legal authority and uncontroverted evidence, the ALJ concluded that October 21, 2019, is the earliest date that Petitioner's billing privileges could be reactivated.  ALJ Decision at 3.  We find the ALJ's conclusion is supported by substantial evidence and legally correct.  *See, e.g., Tosan Fregene, M.D. and Oncology*

**Page 10**

*Clinics, Inc.*, DAB No. 3018, at 6-7 (2020); *George Yaplee Med. Ctr. d/b/a Triangle Eye Inst.*, DAB No. 3003, at 7 (2020); *Chaplin Liu* at 6.14

Petitioner raises various arguments challenging the rejection of his April 2019 revalidation application and deactivation of billing privileges.  As further explained below, those determinations are not reviewable by the ALJ or the Board.

**2.  *The ALJ correctly concluded he did not have authority to review the rejection of Petitioner's April 2019 revalidation enrollment application and deactivation of billing privileges.***

Petitioner contends that the rejection of his April 2019 application and deactivation of billing privileges are both appealable under 42 C.F.R. § 498.3(b)(17) (providing that the denial or revocation of a supplier's Medicare enrollment is an initial determination subject to review).  RR at 3.  Petitioner's reliance on section 498.3(b)(17) is misplaced because Petitioner's Medicare enrollment was not denied or revoked; rather, his revalidation application was rejected and his billing privileges were deactivated.

As summarized above, the regulations governing these proceedings list the types of "initial determinations by CMS" that a Medicare supplier may appeal to an ALJ (including certain contractor or CMS reconsidered determinations).  *See* 42 C.F.R. § 498.3(b).  The list does not include either the rejection of a supplier's enrollment application or the deactivation of billing privileges.  *Id*.  Further, the enrollment regulations explicitly state that "[e]nrollment applications that are rejected are not afforded appeal rights."  *Id*. § 424.525(d).  Additionally, as explained above, a deactivated supplier has only the right to file a rebuttal at the contractor level, not an appeal or request for ALJ review.  *See* 42 C.F.R. §§ 424.545(b), 405.374(a); *Willie Goffney, Jr., M.D.*, DAB No. 2763, at 4-5 (2017) ("[N]either section 424.545(b) nor any other regulation provides appeal rights from the contractor's deactivation determination or any rebuttal determination."), *aff'd*, No. 2:17-cv-8032 (C.D. Cal. Sept. 25, 2019), *aff'd*, No. 19-56368, 2021 WL 1682249 (9th Cir. Apr. 29, 2021); *see also Urology Grp.* at 6 ("The regulations do not grant suppliers the right to appeal deactivations.").

Although a supplier may appeal the denial of an enrollment application for cause, *e.g.*, non-compliance with enrollment requirements, disqualifying felony criminal convictions, or providing false or misleading information, the regulations do not provide such appeal

**Page 11**

rights to suppliers whose applications are merely rejected for failing to timely submit complete information or documentation.  *See Liu* at 7 (citing 42 C.F.R. §§ 424.525, 424.530).  Similarly, a supplier may appeal the revocation of Medicare enrollment, resulting in a re-enrollment bar of one to ten years; but, the regulations grant no such appeal rights for deactivation, which has no effect on a "supplier's participation agreement or any conditions of participation" and does not bar reactivation.  *Id*. (citing §§ 424.535, 424.540(c);*Frederick Brodeur, M.D.*, DAB No. 2857, at 14 (2018) ("'Deactivate[d]' means that the . . . supplier's billing privileges were stopped, but can be restored upon the submission of updated information," while "'Revoke/Revocation' means that the provider or supplier's billing privileges are terminated . . . and the supplier's enrollment is terminated.")).

Here, the only determination the ALJ had authority to review was the effective date of reactivation of Petitioner's billing privileges.  *See Fregene* at 7; *Goffney* at 5; *see also* 42 C.F.R. § 498.3(b)(15).  The Board has long held that, in reviewing the effective date of reactivation, to consider arguments that a contractor improperly rejected an earlier enrollment application would make "a nullity" of the prohibition of appeals relating to rejected applications.  *See Liu* at 8 (citing *Lindsay Zamis, M.D., a Pro. Corp*., DAB No. 2802, at 9 (2017); *James Shepard, M.D.*, DAB No. 2793, at 8 (2017)).  This reasoning applies equally to the deactivation of a supplier's billing privileges, "as it would amount to the Board or the ALJ reviewing the validity of the deactivation without any regulatory or other source of such authority."  *Liu* at 8.

Thus, the ALJ did not err in concluding that he lacked authority to review the rejection of Petitioner's April 2019 revalidation application and deactivation of billing privileges.  *See, e.g., Fregene* at 7; *Liu* at 6-8.

**3.  *The ALJ correctly rejected Petitioner's arguments based on equitable grounds.***

Petitioner further contends that "Noridian should be estopped from denying [his] revalidation application" because Noridian representatives allegedly assured him "over the phone that an additional diploma was not necessary."  RR at 4.  He cites various federal court decisions to support his argument that "when conduct of a government official has precipitated a procedural default, courts have refused to permit the [g]overnment to assert that default as a defense."  *Id*.

We reject Petitioner's equitable estoppel argument for several reasons.  First, insofar as Petitioner seeks an earlier effective date to eliminate the gap in his billing privileges based on equitable considerations, the Board has repeatedly held that ALJs and the Board "are bound by the applicable regulations and cannot alter an effective date based on principles of equity."  *Liu* at 10 (citation omitted).  Thus, "[t]he merits of any estoppel claim by Petitioner are ultimately immaterial because . . . the Board is not empowered to

**Page 12**

grant relief based on equitable doctrines, theories, or reasons."  *Linda Silva, P.A.*, DAB No. 2966, at 8 n.6 (2019) (citation omitted).

Second, Petitioner's estoppel argument directly challenges a decision – the rejection of Petitioner's April 2019 revalidation application – that we have no authority to review.  *See supra* at 10-11.  It amounts to an "indirect or backdoor challenge to a contractor decision – namely, an application rejection – for which there are no administrative appeal rights."  *See James Shepard* at 7-8 (rejecting supplier's contention that he was entitled to an earlier effective date based on contractor's alleged errors and omissions in rejecting an earlier enrollment application).

Third, even if equitable estoppel were available (which it is not), the record evidence does not support the elements of such a claim.  "It is well-established that 'the government cannot be estopped absent, at a minimum, a showing that the traditional requirements for estoppel are present (*i.e.*, a factual misrepresentation by the government, reasonable reliance on the misrepresentation by the party seeking estoppel, and harm or detriment to that party as a result of the reliance) *and* that the government's employees or agents engaged in 'affirmative misconduct.'"  *Southlake Emergency Care Ctr*., DAB No. 2402, at 8 (2011) (emphasis in original; citations omitted).  We would find no factual misrepresentation even were we to accept Petitioner's claims that a representative of Noridian thought Petitioner's application should not have been rejected and agreed to further review his Wayne State University diploma.  That is not on its face inconsistent with the fact that Noridian ultimately concluded the diploma was unacceptable.  Nor would the representative's opinion preclude Petitioner from submitting additional evidence of qualification (such as another diploma) or from initiating a new application immediately to ensure timely reinstatement if the re-review failed to reverse the rejection.  Petitioner has not shown it was reasonable to rely on a possible re-review resulting in a different outcome by delaying taking either action to protect his interests.

Petitioner also failed to show that Noridian "engaged in 'affirmative misconduct,' which is something more than failing to provide accurate information or negligently dispensing erroneous advice."  *Silva* at 8 n.6 (citing *Wash. State Dept. of Soc. & Health Servs.*, DAB No. 1561, at 10 (1996);*Hartford HealthCare at Home, Inc.*, DAB No. 2787, at 9-10 (2017)).  Moreover, Petitioner contends Noridian provided erroneous advice over the phone; however, "erroneous oral advice is inadequate, as a matter of law, to estop the government from enforcing federal law."  *Wash. State Dept. of Soc. & Health Servs.* at 10 (citing *Heckler v. Cmty. Health Servs.*, 467 U.S. 51, 65 (1984)); *see also Silva* at 8 n.6.

Finally, none of the court cases cited by Petitioner alters this result.  The only case Petitioner cites from the Ninth Circuit Court of Appeals, *Brandt v. Hickel*, 427 F.2d 53 (9th Cir. 1970), does not involve equitable estoppel.  In *Brandt*, the court concluded that "the collateral estoppel doctrine can properly be applied [against the government] where the erroneous advice was in the form of a crucial misstatement in an official decision."

**Page 13**

*Id*. at 57.  *Brandt* is inapposite because Petitioner does not assert any argument based on collateral estoppel or contend that Noridian made a misstatement in any "official decision."  Petitioner's contention that a federal agency, like CMS, may be equitably estopped from enforcing federal regulations based on alleged oral misstatements by a government contractor has no support in any of the cases Petitioner cites.15

For all of these reasons, we reject Petitioner's equitable estoppel argument and sustain the ALJ's decision declining to grant Petitioner an earlier effective date based on equitable grounds.  ALJ Decision at 4 (citing *US Ultrasound* at 8).

**4.  *Petitioner cannot assert a claim for negligent misrepresentation in this administrative proceeding.***

In another attempt to challenge the rejection of his revalidation application and deactivation of billing privileges, Petitioner asserts the elements of a negligent misrepresentation claim against Noridian.  RR at 3-4.  He directs the Board's attention to *Intelect Corp. v. Cellco P'ship GP*, 160 F. Supp. 3d 157, 186 (D.D.C. 2016), which describes the elements of a tort claim for negligent misrepresentation under District of Columbia law.  *Id*. at 3.  Petitioner asserts that Noridian representatives falsely represented that his Wayne State University diploma was valid, advised him not to submit his two other diplomas, and then upheld the rejection of his application after determining that his diploma was invalid.  *Id*. at 3.  Petitioner asserts that he relied to his detriment on Noridian's material misrepresentations, which led to the wrongful rejection of his revalidation application and a gap in his billing privileges.  *Id*. at 3-4.

Apart from the lack of evidence supporting these alleged misrepresentations (as discussed above), Petitioner did not assert a "negligent misrepresentation" claim before the ALJ and, for that reason alone, we reject Petitioner's attempt to raise the issue now.  *See Foot Specialists of Northridge*, DAB No. 2773, at 13-14 (2017) (rejecting argument that supplier raised for the first time on appeal before the Board);*Complete Home Care, Inc.*, DAB No. 2525, at 5 (2013) ("[T]he Board will not consider issues which could have been presented to the ALJ but were not."); *Hiva Vakil, M.D.*, DAB No. 2460, at 5 (2012) (concluding that supplier waived argument "because they did not raise it before the ALJ despite having the opportunity to do so").

**Page 14**

Even if Petitioner had raised his "negligent misrepresentation" claim before the ALJ, neither the ALJ nor the Board has jurisdiction to adjudicate common law tort claims.  In supplier enrollment appeals (like this one), the jurisdiction of the ALJ and the Board is derived from the Social Security Act ("Act") and the regulations found in 42 C.F.R. Part 498, Subpart E (§§ 498.80-498.95).  Act § 1866(j).  The ALJ and the Board are not authorized under the Act or Part 498 to hear and decide tort claims brought under state law.  *Id*.; *see also* 42 C.F.R. § 498.1.

Moreover, Petitioner's negligent misrepresentation claim must be rejected because it is yet another "indirect or backdoor" attempt to challenge the handling and rejection of his April 2019 revalidation application.  *See, e.g.*, *James Shepard* at 8.  As explained above, the rejection of an enrollment application and deactivation of billing privileges are not reviewable by the Board.  *See supra* at 10-11.  For all of these reasons, we decline Petitioner's request to "close the billing gap" based on a claim of negligent misrepresentation.

Conclusion

We affirm the ALJ Decision upholding Noridian's determination that the effective date of reactivation of Petitioner's Medicare billing privileges is October 21, 2019.


          /s/
        Leslie A. Sussan

                      Board Member
          /s/
        Constance B. Tobias

                      Board Member
          /s/
        Michael Cunningham

                      Presiding Board Member
      1. We cite to, and apply, the enrollment regulations in effect on December 13, 2019, the date CMS's contractor issued the initial determination regarding the effective date of Petitioner's billing privileges.  See George Yaplee Med. Ctr. d/b/a Triangle Eye Inst., DAB No. 3003, at 3 n.3 (2020). back to note 1
                      2. For purposes of section 424.520(d), an application to revalidate billing privileges is treated as an initial enrollment application.  See Ark. Health Grp., DAB No. 2929, at 9 n.5 (2019). 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. Although the date of receipt does not appear on the application, there is no dispute it was received by Noridian on April 26, 2019.  See Request for Review at 2 ("On or about April 26, 2019, I applied to Noridian for revalidation of my billing privileges."); CMS Response Br. at 2 ("On April 26, 2019, Noridian received an insufficient revalidation application from Appellant."). back to note 4
                      5. Section 424.525(a)(1) provides that CMS may reject a supplier's enrollment application for "fail[ing] to furnish complete information on the . . . supplier enrollment application within 30 calendar days from the date of the contractor request for the missing information." back to note 5
                      6. When a supplier's billing privileges have been deactivated, "[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary."  42 C.F.R. § 424.555(b).  If any supplier "furnishes an otherwise Medicare covered item or service for which payment may not be made," any expense incurred for such item or service shall be the responsibility of the supplier.  Id. § 424.555(c). back to note 6
                      7. The call log repeatedly uses the pronoun "we," without identifying who "we" refers to. back to note 7
                      8. The Reconsidered Determination from Noridian dated April 7, 2020, was filed by Petitioner as an attachment to his request for an ALJ hearing.  See Civil Remedies Division, Docket No. C-20-564. back to note 8
                      9. Petitioner does not dispute that his revalidation enrollment application was initially due on April 30, 2019. back to note 9
                      10. Petitioner submitted a copy of the Wayne State University diploma to the ALJ as part of his "supporting documentation" that omitted the word "audiology."  See Docket No. C-20-564, Entry #1b, at 17.  According to Petitioner, his original Wayne State University diploma did not include his specialization, "but a replacement diploma did."  Pet. Response to CMS Summary Judgment Motion at 2.  Petitioner did not explain when or how he obtained a "replacement diploma" with his typed specialization.  In any event, we do not consider or resolve these factual issues that go to Noridian's rejection of Petitioner's April 2019 revalidation application and deactivation of billing privileges because those issues are not reviewable by the ALJ or the Board.  See infra at 10-11. back to note 10
                      11. In his initial submission to the Board, Petitioner refiled his August 29, 2020 Response to CMS Summary Judgment Motion.  See Board, Docket No. A-21-11.  Petitioner's Request for Review, which is dated November 2, 2020, was filed as attachment 1b to his initial submission. back to note 11
                      12. Even if we could consider admitting the evidence, we would exclude it as irrelevant and immaterial because the evidence only goes to challenging determinations that are not reviewable by the ALJ or the Board (i.e., the rejection of Petitioner's application and deactivation of billing privileges).  Moreover, "[i]n deciding whether to admit additional evidence, the Board considers whether its proponent has shown 'good cause' for not producing it during the ALJ proceeding."  North Las Vegas Care Ctr., DAB No. 2946, at 16 (2019).  Petitioner provided no explanation as to why the affidavit and transcripts were not obtained and produced during the ALJ proceeding. back to note 12
                      13. CMS objected to Petitioner's submission of new evidence with his Request for Review.  CMS Br. at 14 n.3.  We do not admit the new evidence for the reasons stated above. back to note 13
                      14. As the ALJ noted, Noridian allowed a period of retrospective billing beginning 30 days before the effective date of Petitioner's billing privileges.  Because Petitioner's billing privileges were deactivated effective September 3, 2019 and reactivated effective October 21, 2019 (with retrospective billing beginning September 21, 2019), a gap exists from September 3, 2019 through September 20, 2019, during which Petitioner did not have Medicare billing privileges. back to note 14
                      15. Apart from Brandt, Petitioner cites tax cases concluding that the government may be estopped from raising the statute of limitations or other statutory deadlines against taxpayers who delayed taking action based on written agreements or other written notifications or representations authorized by the IRS.  See Walsonavich v. United States, 335 F.2d 96, 101 (3d Cir. 1964); Miller v. United States, 500 F.2d 1007, 1010-11 (2d Cir. 1974); Smale & Robinson, Inc. v. United States, 123 F. Supp. 457 (S.D. Cal. 1954).  Petitioner also cites a Social Security case, Tuck v. Finch, 430 F.2d 1075 (4th Cir. 1970); however, that case does not involve equitable estoppel or any alleged misstatement by a government agent.  In any case, the Board is not bound by federal court of appeals decisions from judicial circuits other than the circuit to which its decision in the pending matter may be appealed.  See Golden Living Ctr. – Trussville, DAB No. 2937, at 27 (2019); Rockcastle Health & Rehab. Ctr., DAB No. 2891, at 24 (2018). back to note 15 Back to top
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