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                              Angela Johnson, DAB No. 3042 (2021)
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Angela Johnson, DAB No. 3042 (2021)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





Angela Johnson
Docket No. A-21-29Decision No. 3042June 9, 2021

        
              
    

      FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Angela Johnson (Petitioner) appeals a December 9, 2020 decision by an administrative law judge (ALJ).  *Angela Johnson*, DAB CR 5774 (ALJ Decision).  The ALJ affirmed a reconsidered determination by Palmetto GBA (Palmetto), a Medicare contractor for the Centers for Medicare and Medicaid Services (CMS), to deny Petitioner’s Medicare enrollment application pursuant to 42 C.F.R. § 424.530(a)(1) because she did not qualify as a Medicare provider or supplier.  For the reasons discussed below, we conclude that the ALJ Decision is supported by substantial evidence and free from legal error.

Legal Background

The Medicare program provides health insurance benefits to persons 65 years and older and to certain disabled persons.  Social Security Act (Act) §§ 1811, 1831, 1836.1
  CMS administers the Medicare program and delegates certain program functions to private contractors that function as CMS’s agents in administering the program – in this case, Palmetto.  *See*Act §§ 1816, 1842, 1874A; 42 C.F.R. § 421.5(b).

The requirements for establishing and maintaining Medicare billing privileges are contained in 42 C.F.R. Part 424, subpart P (§§ 424.500-424.570).  In order to receive payment for services furnished to Medicare beneficiaries, a provider or supplier must be “enrolled” in Medicare and maintain active status.  42 C.F.R. §§ 424.500, 424.505, 424.510, 424.516.  A “supplier” is “a physician or other practitioner, or an entity other than a provider, that furnishes health care services under Medicare.”  42 C.F.R. § 400.202 (defining “Supplier”); *accord* Act § 1861(d); 42 C.F.R. § 498.2 (describing types of

**Page 2**

suppliers).  A “provider” is an entity that has in effect an agreement to participate in Medicare, such as a hospital, home health agency, or skilled nursing facility, among other entities.  42 C.F.R. § 400.202 (defining “Provider”); *accord*Act § 1861(u); 42 C.F.R. § 498.2 (describing types of providers).

To enroll in Medicare, prospective providers and 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 provider or supplier’s eligibility to furnish Medicare-covered items or services.  *Id*. §§ 424.510, 424.515, 424.516, 498.2 (defining “Prospective provider” and “Prospective supplier”).

CMS may deny a prospective provider or supplier’s enrollment in the Medicare program for the reasons set out in 42 C.F.R. § 424.530(a), one of which is when a “provider or 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).  “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.”  *Id*. § 424.502.

A prospective provider or supplier that is denied enrollment may appeal CMS’s reconsidered determination in accordance with 42 C.F.R. Part 498, subpart A.  *Id*. § 424.545(a).  The reconsidered determination to deny the enrollment of a provider or supplier under 42 C.F.R. § 424.530 is an “initial determination” that may be appealed through the administrative process to the ALJ and then to the Board.  42 C.F.R. § 498.3(b)(17); *see also,* *e.g.*,*Deann Worthington, NP*, DAB No. 2661, at 2 (2015).

Case Background2

In February 2020, Palmetto received from Petitioner a CMS-855I, which is a CMS form titled “Medicare Enrollment Application [for] Physicians and Non-Physician Practitioners” and referred to hereafter as Petitioner’s Medicare enrollment application.  CMS Ex. 1; CMS Ex. 4, at 2.  The application states, “[a]ll physicians[] as well as eligible professionals as defined in section 1848(k)(3)(B) of the Social Security Act must complete this application to enroll in the Medicare program and receive a Medicare

**Page 3**

billing number.”3
  CMS Ex. 1, at 2.  On her application, Petitioner checked multiple boxes under the heading “Physician Specialty.”*Id*. at 8.  Petitioner additionally checked boxes under the heading “Eligible Professional or Other Non-Physician Specialty Type,” indicating that she is a non-physician practitioner with the following specialties:  occupational therapist in private practice (Petitioner added “Unlicensed” next to this checked box); registered dietician or nutrition professional (Petitioner underlined “Nutrition Professional”); and undefined non-physician practitioner specialty (Petitioner added “Licensed Cosmetologist (. . . professional skilled sanitation home health [services]).”  *Id*. at 9.  She included a copy of two licenses with her application:  an active license for cosmetology and an expired license for “Hairdressing & Manicuring.”4
  *Id*. at 31.  She did not include any documentation purporting to relate to physician specialty, occupational therapy, or nutrition qualifications.

By letter dated March 5, 2020, Palmetto denied Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(1) because she did “not meet CMS regulatory requirements for the specialty [she sought] to enroll as”; and she did “not qualify as a provider of services or a supplier of medical and health services.”  CMS Ex. 2.  The letter further stated Petitioner “is not recognized by any Federal statute as a Medicare provider or supplier as a cosmetologist.”  *Id*.

Petitioner submitted a reconsideration request to Palmetto, arguing that her cosmetology license, professional experience, and education warranted reversal of the enrollment denial.  CMS Ex. 3.  She argued that her cosmetology license “does meet the home health requirements for sanitation training, testing and licensure and care of home health and disabled Medicare patient[s].”  *Id*. at 1.  In addition, she asserted that she could provide Palmetto with “venipuncture phlebotomy licensure and certification proof” and further stated that she previously worked for Jackson Madison County General Hospital and that she holds a Bachelor of Science degree in Business Administration.  *Id*.

**Page 4**

On May 22, 2020, Palmetto issued its reconsidered determination sustaining the denial of Petitioner’s application to enroll as a licensed cosmetologist.  CMS Ex. 4.  The determination stated that, “[p]er 42 CFR 424.530(a)(1), the [applicant] does not qualify as a provider of services or a supplier of medical and health services.  The applicant is not recognized by any Federal statute as a Medicare provider or supplier as a Cosmetologist.” *Id*. at 2.

The ALJ Proceedings and Decision

Petitioner timely requested an ALJ hearing to contest the reconsidered determination.  She attached to her filing several documents, including various emails between her and Palmetto representatives.  The submissions do not have exhibit numbers.5

On Petitioner’s request for an ALJ hearing, CMS moved for summary judgment; Petitioner opposed CMS’s motion, and each party filed proposed exhibits.6
  On October 15, 2020, Petitioner filed an Emergency Addendum and submitted supporting documents, which the ALJ construed as a motion to supplement Petitioner’s prehearing exchange.  *Angela Johnson*, Order, Docket No. C-20-665 (Oct. 16, 2020).  On October 26, 2020, CMS expressly waived any objection to Petitioner’s supplemental exhibits.  On October 27, 2020, the ALJ issued an order closing the record, notifying the parties that she would not consider any further submissions.7
  *Angela Johnson*, Order Closing Record, Docket No. C-20-665.

The ALJ sustained CMS’s denial determination on the written record after concluding that an in-person hearing was unnecessary.  ALJ Decision at 2-3, 7.  The ALJ made four findings of fact/conclusions of law:  (1) the services of an independent home health caregiver do not qualify as home health services under Medicare Part A or as medical and other health services under Medicare Part B; (2) an individual may only enroll in Medicare to supply covered medical and health services; (3) CMS had a legal basis to deny Petitioner’s Medicare enrollment application under 42 C.F.R. § 424.530(a)(1) because Petitioner does not qualify as a non-physician practitioner eligible for enrollment; and (4) the ALJ lacked authority to grant Petitioner’s additional requests for

**Page 5**

relief, including the payment of Petitioner’s Medicare claims for past services and the termination of specific Palmetto employees.  ALJ Decision at 4-7.

Board Proceedings

Petitioner timely requested Board review of the ALJ Decision.  In her request for review (RR), she alleges that she is qualified to enroll in the Medicare program as a “sole freelance home health care provider.”  RR at 2.  Next, she contends Palmetto improperly denied her Medicare enrollment application by failing to consider her bachelor’s degree in Business Administration and alleged phlebotomy and venipuncture licenses because the reconsidered determination refers to her specialty type only as a cosmetologist.  *Id*.; CMS Ex. 4, at 2.  She further argues the ALJ erred in concluding that phlebotomy, venipuncture, and cosmetology are not part of home health care.  *Id*.  Furthermore, Petitioner asserts that she provides a range of medical services to Medicare beneficiaries, and thus presumably, she should qualify as a Medicare supplier.  RR at 3.  Finally, Petitioner reiterates her additional requests for relief made before the ALJ, namely that the Board award her payment for past services she provided to Medicare beneficiaries and order termination of certain Palmetto employees.8
  *Id*. at 1, 4.

Petitioner attached to her Request for Review eight separate spreadsheets, each labeled “HH Medicare Bill” and “Payroll Report.”  Each spreadsheet designates a specific Medicare beneficiary and a time period.  The submissions do not include exhibit numbers.  The Payroll Reports dated January 2020 to November 2020, and dated December 2021 to May 2021, were not previously submitted 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, 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.9

**Page 6**

On March 9, 2021, CMS filed a response brief arguing that the Medicare statute and regulations do not permit Petitioner to enroll as a supplier or provider and that the ALJ Decision should be affirmed.  CMS Br. at 3.  On April 16, 2021, Petitioner filed a reply to CMS’s response brief asserting – for the first time on appeal – that Petitioner is a clinical nurse specialist, and thus, qualified to enroll in the Medicare program.10
  P. Reply at 2.

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.

Analysis

**1.*The ALJ’s conclusion that CMS had a valid legal basis to deny Petitioner’s enrollment pursuant to section 424.530(a)(1) 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 of enrollment in the Medicare program is to determine whether CMS had a legal basis for its action.  If it did, then we are bound to affirm the denial.  We do not review CMS’s exercise of discretion in determining to take the action under review.  *See Dr. Robert Kanowitz*, DAB No. 2942, at 4 (2019).  “[W]here 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).

**Page 7**

Section 424.530(a)(1) authorizes CMS to deny a prospective provider or supplier’s Medicare enrollment application if the enrolling entity 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 . . . .”  Substantial evidence in the record shows that Petitioner’s case meets those criteria, and thus, CMS had a legal basis to deny Petitioner’s enrollment.

We first address the enrollment requirements in subpart P.  As discussed above, the regulations maintain that only a “provider” or “supplier” may enroll in Medicare to receive payment for Medicare-covered services.  42 C.F.R. §§ 424.500, 424.505, 424.510, 400.202.  Petitioner, however, cannot show that she is qualified to enroll in Medicare as **any** recognized kind of provider or supplier.  Petitioner contends on appeal that she is a “home health care provider,” but concedes that she does not represent a Medicare-eligible home health agency; she makes no claim to represent any other Medicare provider type.  *See*RR at 2 (describing herself as a “sole freelance home health care provider, not an agency”); *see generally*42 C.F.R. § 400.202 (defining “Provider”).  Petitioner does not claim to be among the exhaustive list of providers specified in section 400.202.

Additionally, Petitioner does not satisfy the definition of a Medicare-eligible “supplier.”  The record exhibits cited by the ALJ show, and Petitioner acknowledges, that she is not a physician.  RR at 3; *see* CMS Ex. 1-3.  Still, Petitioner argues that she may enroll in the Medicare program as a non-physician practitioner and that Palmetto improperly denied her enrollment by failing to consider her relevant education and licenses.  RR at 2.  However, neither the Act nor the applicable regulations permit an individual to enroll in Medicare based on a Bachelor of Science degree in Business Administration or licenses in cosmetology, phlebotomy, or venipuncture.  Act § 1861; 42 C.F.R. §§ 424.510, 424.515, 424.516.  Cosmetologist and phlebotomist are not among the specific non-physician practitioner categories listed in the statute.11

Petitioner’s enrollment application makes evident that she failed to show that she was in compliance with requirements for any eligible category.  As explained above, Petitioner submitted to Palmetto a CMS-855I, Medicare enrollment application.  The application indicates that “eligible professionals,” as defined in section 1848(k)(3)(B) of the Act, “must complete this application to enroll in the Medicare program and receive a Medicare billing number.”  *Id*. at 2.

**Page 8**

Section 1848(k)(3)(B) defines an “eligible professional” to mean any of the following:

(i) A physician.
(ii) A practitioner described in section 1842(b)(18)(C).
(iii) A physical or occupational therapist or a qualified speech-language pathologist.
(iv) Beginning with 2009, a qualified audiologist (as defined in section 1861(ll)(3)(B)).

Act § 1848(k)(3)(B).

Practitioners described in section 1842(b)(18)(C) include:

(i) A physician assistant, nurse practitioner, or clinical nurse specialist (as defined in section 1861(aa)(5)).
(ii) A certified registered nurse anesthetist (as defined in section 1861(bb)(2)).
(iii) A certified nurse-midwife (as defined in section 1861(gg)(2)).
(iv) A clinical social worker (as defined in section 1861(hh)(1)).
(v) A clinical psychologist (as defined by the Secretary for purposes of section 1861(ii)).
(vi) A registered dietitian or nutrition professional.

*Id*. § 1842(b)(18)(C).  In her hearing request before the ALJ and request for Board review of the ALJ Decision, Petitioner did not claim to be one of the other practitioners eligible for Medicare enrollment, enumerated above.  However, in her reply to CMS’s brief, Petitioner attempts to argue for the first time that she is a clinical nurse specialist (CNS), a practitioner described in section 1842(b)(18)(C) and defined in section 1861(aa)(5)(B) of the Act, because of the level of services that she provides and her alleged “phlebotomy licensure.”  P. Reply at 2.

To begin with, the Board need not consider this argument because Petitioner’s reply brief is untimely.  Petitioner needed to submit any reply to CMS’s response brief within 15 days after electronic receipt of CMS’s response in the Board’s electronic filing system (DAB E-File).  Acknowledgment of Request for Review at 2-3.  Because CMS filed its response on March 9, 2021, Petitioner’s reply brief was due on March 24, 2021.  Petitioner, however, submitted her reply more than three weeks late, on April 16, 2021.  The Board permits parties to request an extension of time for filing their reply, but they must do so before the original due date, include a statement about whether the opposing party objects to the requested extension, and state the reasons for the request.  *See Guidelines*at “Development on the Record on Appeal” ¶ (e).  The Board will grant such an extension only for good cause shown.  *Id*.  Petitioner did not request an extension from

**Page 9**

the Board or provide any reason for her untimely submission.  Accordingly, the Board need not address the new issue raised in Petitioner’s untimely reply.

Moreover, Petitioner did not raise this issue before the ALJ.  “A party appearing before the Board is not permitted to raise on appeal issues that could have been raised before the ALJ but were not.”  *Russell L. Reitz, M.D.*, DAB No. 2748, at 8 (2016), *appeal dismissed* *sub nom. Cent. Kan. Cancer Inst. v. Dep’t of Health & Hum. Servs.*, No. 2:17-cv-02012 (D. Kan. June 2, 2017); *Guidelines*at “Completion of the Review Process” ¶ (a) (“The Board will not consider issues not raised in the request for review, nor issues which could have been presented to the ALJ but were not.”).  Petitioner did not assert that she was a CNS before the ALJ and has not made any showing here that she could not have done so.  Accordingly, that issue is not properly before the Board.  *See, e.g., Hiva Vakil, M.D.*, DAB No. 2460, at 5 (2012) (applying the Board’s Appellate Division Guidelines to exclude arguments not raised before the ALJ).

Furthermore, even were we to consider the merits of Petitioner’s contention in her reply that she is a CNS, it would not change the outcome of her appeal.  Our review is based on the enrollment application that Petitioner submitted to Palmetto that was subsequently denied.  42 C.F.R. § 498.3(b)(17); *see generally Willie Goffney, Jr., M.D.*, DAB No. 2763, at 4 (2017) (explaining that a contractor’s reconsidered determination “sets the parameters of the issues before the ALJ (and the Board)”)), *aff’d*, No. 2:17-cv-8032 (C.D. Cal. Sept. 25, 2019), *aff’d*, No. 19-56368 (9th Cir. Apr. 29, 2021).  In her application to Palmetto, Petitioner did not claim to be a CNS.  CMS Ex. 1.  Indeed, Section 2(H) of Petitioner’s enrollment application instructs “eligible professional[s]” to check a series of boxes to indicate their “specialty,” including, among others, “Certified Clinical Nurse Specialist (CNS).”  *Id*. at 9.  Although Petitioner checked several boxes indicating her alleged specialties, she did not check the box next to “Certified Clinical Nurse Specialist (CNS).”12
  *Id*.  She also did not complete Section 2(L), a section to be completed by “Nurse Practitioners and Certified Clinical Nurse Specialists.”  *Id*. at 11.  Further still, the Act defines a CNS as:  (i) a “registered nurse” who is “licensed to practice nursing in the State in which the clinical nurse specialist services are performed; and (ii) holds a master’s degree in a defined clinical area of nursing from an accredited educational institution.”  Act § 1861(aa)(5)(B).  Even now, Petitioner has presented no evidence that she holds any of the credentials of a CNS.  Accordingly, we see no evidence that Palmetto erred in denying Petitioner’s enrollment application when Petitioner did not

**Page 10**

communicate in her application that she purported to be a CNS and further did not include any documentation to establish she is a Medicare-eligible CNS.

In sum, the record shows that Petitioner did not comply with the enrollment requirements in 42 C.F.R. Part 424, subpart P or in the enrollment application that she submitted to Palmetto.  The ALJ’s decision affirming CMS’s denial of Petitioner’s Medicare enrollment application was thus supported by substantial evidence and contained no error of law.

**2.*Petitioner has identified no error in the ALJ Decision affirming the enrollment denial.***

Petitioner contends that the ALJ erred in concluding that “phlebotomy/venipuncture is not an actual medical practitioner, or necessary part of home health staffing or hospital staffing, or a qualified medical care practitioner.”  RR at 2.  She further contends that the ALJ failed to recognize that cosmetology is a “help” to home health care.  *Id*.

Petitioner, however, misunderstands the ALJ’s conclusion.  The ALJ held that licensed cosmetologists and phlebotomists “are not among the licensed health care practitioners specified in the statute and regulations.”  ALJ Decision at 5.  As we noted in the preceding section, the Act and applicable regulations do not permit an individual to enroll as a supplier in Medicare simply because they possess licenses in phlebotomy and cosmetology.  The ALJ’s conclusion thus contains no legal error.  *See supra*at 7-8; *see generally*Act § 1861.  Moreover, insofar as Petitioner argues that phlebotomy, venipuncture, and cosmetology are critical to home health care in general, we note that the ALJ did not determine otherwise.  Rather, the ALJ properly limited her review to determining whether CMS had a legal basis to deny Petitioner’s Medicare enrollment application based on the Act and the applicable regulations.

Petitioner further contends on appeal that she provides a range of services to Medicare beneficiaries, implying, presumably, that her professional competence should qualify her to enroll in Medicare as a supplier.  Her services allegedly include:

Under skin, over skin, drug administration, hair removal, cleaning, encouraging, driving, appointments and management of physicians along with patients/clients, BP and blood sugar monitoring 6+ times a day, spiritual help, legal help, a form of physical therapy, a form of occupational therapy, diet and nutrition advisement (in [Bachelor of Science degree in Business Administration] with medical classes) as well as actual nutrition provided, and at all hours.  Also, ER services provided and able to provide protection and relief to patients/clients as a safety net to call ER for them if sugar lower than 50 or BP elevated or hyponaturemia BP low or high extremes.

**Page 11**

RR at 2.

However, as with her recent assertion that she is a CNS, Petitioner never raised this issue before the ALJ, despite the opportunity to do so.  Thus, this issue is not properly before the Board.  *See supra*at 8.

In any case, Petitioner’s experience in delivering services to Medicare beneficiaries is immaterial.  “Nothing in the Medicare statute and regulations authorizes the Board to ignore, waive, or otherwise make an exception” to the statutory limitations on Medicare enrollment “on the ground that Petitioner is professionally competent . . . or because his enrollment could benefit Medicare or its beneficiaries.  The ALJ and the Board are authorized to determine only whether Petitioner has, in fact, met applicable enrollment requirements.”  *Sheldon* *Pinsky, Ph.D., LICSW*, DAB No. 2412, at 3 (2011); *see also* *US Ultrasound*, DAB No. 2302, at 8 (2010) (holding that neither the ALJ nor the Board may provide equitable relief by enrolling a supplier who does not meet statutory or regulatory requirements).  Thus, Petitioner has not identified a basis for reversing the ALJ’s decision affirming CMS’s denial of her enrollment.

**3.*Petitioner’s other arguments lack merit.***

Petitioner makes two additional arguments, neither of which have merit.  Petitioner asserts that, although she has provided services to Medicare beneficiaries for the past three years, Palmetto has failed to reimburse her for those services.  RR at 2, 4.  She requests that the Board award her “full wages” for services rendered.  *Id*.  Petitioner submitted no proof that she submitted reimbursement claims to Palmetto or that those claims were subsequently denied.13
  In any event, appeals of those denials would proceed through the appeals process found in 42 C.F.R. Part 405, subpart I, which involves a review process separate from the review of the ALJ decision denying Petitioner’s enrollment application.  Therefore, even if Petitioner had submitted evidence that Palmetto denied her reimbursement claims, the Board is not authorized to address those claims.  Moreover, the governing regulations do not permit Petitioner to receive payment for providing Medicare-covered services when she is not eligible to enroll in Medicare.  42 C.F.R. § 424.500 (“Providers and suppliers must meet and maintain . . . enrollment requirements to bill either the Medicare program or its beneficiaries for Medicare covered services or supplies.”); *see also*§ 424.555(b) (“No payment may be made for otherwise

**Page 12**

Medicare covered items or services furnished to a Medicare beneficiary by a provider or supplier if the billing privileges of the provider or supplier are deactivated, denied, or revoked.”).  Furthermore, if a provider or supplier furnishes Medicare-covered services for which payment may not be made because they are not properly enrolled, “any expense incurred for such otherwise Medicare covered . . . service shall be the responsibility of the provider or supplier,” not CMS or its contractor.  *See id*. § 424.555(c).

Petitioner further seeks the termination of certain Palmetto employees for denying her Medicare enrollment application.  RR at 1-4.  The Board, however, does not have the authority to grant Petitioner’s request to terminate contractor employees.  *See generally*42 C.F.R. Part 498, subpart E (§§ 498.80-498.95).  The Board’s authority is limited to a review of the ALJ Decision, and the Board may only modify, affirm, remand, or reverse the ALJ’s decision.  The Board may not grant other relief.  42 C.F.R. § 498.88.  In any event, as the ALJ correctly observed, the record does not show that Palmetto employees acted improperly.14
  ALJ Decision at 7.  Moreover, as discussed above, the ALJ Decision affirming Palmetto’s decision to deny Petitioner’s enrollment application was supported by substantial evidence and contained no legal error pursuant to 42 C.F.R. § 424.530(a)(1).  Thus, we see no basis to modify or reverse the ALJ Decision.

**Page 13**

Conclusion

For the reasons fully explained above, we affirm the ALJ Decision affirming CMS’s denial of Petitioner’s enrollment application.


          /s/
        Michael Cunningham

                      Board Member
          /s/
        Constance B. Tobias

                      Board Member
          /s/
        Leslie A. Sussan

                      Presiding Board Member
      1. The current version of the Social Security 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.  Also, a cross-reference table for the Act and the United States Code can be found at https://www.ssa.gov/OP_Home/comp2/G-APP-H.html. back to note 1
                      2. 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 2
                      3. Section 1848(k)(3)(B) defines an “eligible professional” to mean any of the following:  (i) a physician; (ii) a practitioner described in section 1842(b)(18)(C) of the Act; (iii) a physical or occupational therapist or a qualified speech-language pathologist; and (iv) beginning with 2009, a qualified audiologist as defined in section 1861(ll)(3)(B).  Act § 1848(k)(3)(b).  Practitioners described in section 1842(b)(18)(C) include:  (i) a physician assistant, nurse practitioner, or clinical nurse specialist (as defined in section 1861(aa)(5)); (ii) a certified registered nurse anesthetist (as defined in section 1861(bb)(2)); (iii) a certified nurse-midwife (as defined in section 1861(gg)(2)); (iv) a clinical social worker (as defined in section 1861(hh)(1)); (v) a clinical psychologist (as defined by the Secretary for purposes of section 1861(ii)); and (vi) a registered dietitian or nutrition professional. back to note 3
                      4. On Petitioner’s enrollment application, she also alleges that she maintains a “MO license whole homehealth.”  CMS Ex. 1, at 6.  Although she did not include a separate license for home health care with her enrollment application, she indicates the license number and states that the license was valid until “9/2019.”  Id.  We note that the license number and expiration date match Petitioner’s State of Missouri license for “Hairdressing & Manicuring” already included with her enrollment application.  Id. at 31.  Petitioner, therefore, appears to be referring to this license to support her claim that she maintains a license in home health care. back to note 4
                      5. The ALJ used docket entry numbers from the case in the DAB E-File system to denote Petitioner’s submissions and admitted them into the record.  ALJ Decision at 2. back to note 5
                      6. Petitioner filed four different versions of her opposition to CMS’s motion on September 3, 18, and 22, 2020.  The ALJ determined each version was timely.  Angela Johnson, Order, Docket No. C-20-665 (Oct. 16, 2020). back to note 6
                      7. On December 2, 2020, in disregard of the ALJ’s October 27, 2020 order closing the record, Petitioner submitted additional exhibits to the ALJ for her review.  The ALJ properly exercised her discretion to exclude those exhibits from her evaluation of the record because they were offered after the record had closed.   ALJ Decision at 2. back to note 7
                      8. In her request for review, Petitioner asserts that she submitted a second Medicare enrollment application to Palmetto, but a copy of the application is not in the record because CMS filed a motion to exclude the second application from the ALJ’s review.  RR at 3.  The record, however, does not reflect that Petitioner submitted into evidence a subsequent 855I enrollment application or that CMS moved to exclude that application from the record before the ALJ.  Moreover, as noted earlier, CMS expressly waived any objection to Petitioner’s supplemental exhibits, which did not include the second enrollment application.  See supra at 4. back to note 8
                      9. Petitioner’s remaining submissions were previously submitted before the ALJ.  See Docket No. C-20-665.  All citations in the decision are to the exhibits in the record before the ALJ. back to note 9
                      10. Petitioner filed three different versions of her reply brief to CMS’s response.  Although she does not indicate which version constitutes the final version, we have reviewed the submissions and determined the most recent version contains only minor typographical corrections compared to the older versions.  Therefore, we consider only Petitioner’s third submission as her reply.  See Docket No. A-21-29.            In addition, in Petitioner’s reply, she requested an expedited decision due to her financial need.  P. Reply at 1.  The federal regulations provide that “[w]hen a request for Board review of a denial of an enrollment application is filed after an ALJ has issued a decision or dismissal order, the Board must issue a decision, dismissal order or remand to the ALJ, as appropriate, no later than 180 days after the appeal was received by the Board.”  42 C.F.R. § 498.88(g).  The regulations do not establish a process to further expedite this type of appeal.  This decision is being issued within the prescribed timeframe. back to note 10
                      11. Petitioner has never submitted as evidence copies of her phlebotomy and venipuncture licenses or proof of her degree, such as a copy of her diploma or transcripts.  Thus, even if Petitioner’s claimed skills could qualify her to enroll in Medicare (which, as explained, they do not), Petitioner has failed to present proof of the additional credentials on which she relies. back to note 11
                      12. We note that Petitioner did check a box for “Registered Dietitian or Nutrition Professional,” which is an eligible professional described in section 1842(b)(18)(C) of the Act.  However, the record does not show that Petitioner submitted to CMS appropriate documentation of her eligibility to enroll as either a registered dietitian or nutrition professional as defined in section 1861(vv)(2) of the Act, and Petitioner has never argued that CMS improperly denied her application to enroll in the Medicare program as a registered dietitian or nutrition professional.  Therefore, this issue is not before us on appeal. back to note 12
                      13. While Petitioner included with her hearing request exhibits purportedly describing her billing, those submissions contain no information regarding what services she allegedly provided to beneficiaries.  See Docket No. C-20-665.  Moreover, none of Petitioner’s exhibits demonstrate that she filed claims with Palmetto that were subsequently denied.  Id. back to note 13
                      14. Petitioner alleges on appeal to us that certain Palmetto employees discriminated against her on the basis of her racial identity.  RR at 1-2.  The record does not show that Petitioner made this argument before the ALJ in her prior submissions.  As we have noted, the Board will not consider issues which were not raised in the request for review or which could have been presented to the ALJ but were not.  See Guidelines at “Completion of the Review Process” ¶ (a).  Moreover, the record does not contain any evidence that any Palmetto employee was aware of or acted on the basis of Petitioner’s race. back to note 14 Back to top
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