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                              1st Choice Healthcare Services, Inc., DAB CR5748 (2020)
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1st Choice Healthcare Services, Inc., DAB CR5748 (2020)








  
  
    

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





1st Choice Healthcare Services, Inc.
(NPI: 1295786200)
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-19-1145Decision No. CR5748October 26, 2020

        
              
    

      DECISION

The Medicare enrollment and billing privileges of Petitioner, 1st Choice Healthcare Services, Inc., are revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii).1
  Revocation was effective May 4, 2019, 30 days after the April 4, 2019 notice of the initial determination.  Petitioner was barred from re-enrollment for three years.

I.  Background and Procedural History

Petitioner was enrolled in Medicare as a home health agency.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 13.  Palmetto GBA, a Medicare administrative contractor (MAC), notified Petitioner by letter dated April 4, 2019, that Petitioner’s Medicare enrollment and billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii) effective May 4, 2019, because Petitioner submitted claims for home health services that were provided without a valid certification of eligibility, in violation of 42 C.F.R. § 424.22.  CMS Ex. 1 at 13-14.  The MAC also notified Petitioner

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that its provider agreement was terminated effective May 4, 2019, pursuant to 42 C.F.R. § 424.535(b).  CMS Ex. 1 at 14.  The MAC imposed a three-year re-enrollment bar pursuant to 42 C.F.R. § 424.535(c), effective 30 days after the date of the MAC’s notice letter.  CMS Ex. 1 at 14.

Petitioner requested reconsideration by letter dated June 3, 2019.  CMS Ex. 1 at 9-10.  On August 5, 2019, a CMS hearing officer issued a reconsidered determination upholding the revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii), effective May 4, 2019.  CMS Ex. 1 at 1-8.

Petitioner requested a hearing before an administrative law judge (ALJ) on September 27, 2019 (RFH).  On October 4, 2019, the case was assigned to me for hearing and decision and an Acknowledgment and Prehearing Order (Prehearing Order) was issued.

On November 4, 2019, CMS filed a motion for summary judgment and brief (CMS Br.) in support of its motion and CMS Exs. 1 through 3.  On December 13, 2019, Petitioner filed its prehearing brief and response to the motion for summary judgment (P. Br.) with no exhibits.2
  CMS waived filing a reply brief on January 2, 2020.  Petitioner did not object to my consideration of CMS Exs. 1 through 3, which are admitted and considered as evidence.

II.  Discussion

**A.  Applicable Law**

Section 1831 of the Social Security Act (Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.3
  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioner, a home health agency, is a provider.

Page 3

The Act defines “home health services” as “items [or] services furnished to an individual, who is under the care of a physician . . . under a plan (for furnishing such items and services to such individual) established and periodically reviewed by a physician . . . .”  Act § 1861(m) (42 U.S.C. § 1395x(m)).  Medicare Part A or B only pays for home health services if a physician certifies and recertifies every 60 days that the requirements of 42 C.F.R. § 424.22(a)(1) and (b)(2) are satisfied.  42 C.F.R. § 424.22.  The certification must include a statement that a plan of care for furnishing the services has been established and will be periodically reviewed by a physician who is a doctor of medicine, osteopathy, or podiatric medicine.  42 C.F.R. § 424.22(a)(1)(iii).  A physician or one of the non‐physician practitioners specified in the regulation must perform a face-to-face encounter with the beneficiary for whom home health services are being certified.  42 C.F.R. § 424.22(a)(1)(v).  The certification of the need for home health services must be obtained at the time the plan of care is established or as soon thereafter as possible and must be signed and dated by the physician who establishes the plan.  42 C.F.R. § 424.22(a)(1)(v)(B)(2).

The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for enrolling providers and suppliers in Medicare, including the requirement to provide the right to a hearing and judicial review of certain enrollment determinations, such as revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505, providers such as Petitioner must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or its Medicare contractor may revoke an enrolled provider’s Medicare enrollment and billing privileges and provider agreement for any of the reasons listed in 42 C.F.R. § 424.535.  Pursuant to 42 C.F.R. § 424.535(a)(8)(ii), CMS may revoke a provider’s enrollment and billing privileges if CMS determines that the provider has a pattern or practice of submitting claims that fail to meet Medicare

Page 4

requirements.  Generally, when CMS revokes a provider’s Medicare billing privileges for not complying with enrollment requirements, the revocation is effective 30 days after CMS or its contractor mails notice of its determination to the provider.  42 C.F.R. §§ 424.57(e)(1), 424.535(g).  After CMS revokes a provider’s enrollment and billing privileges, CMS bars the provider from re-enrolling in the Medicare program for a minimum of one year, but no more than three years.  42 C.F.R. § 424.535(c).

A provider whose enrollment and billing privileges are revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498.  A provider submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a).  CMS or its contractor must give notice of its reconsidered determination to the provider, give the reasons for its determination and specify the conditions or requirements the provider failed to meet, and advise the provider of its right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the provider, the provider has the right to request a hearing by an ALJ and further review by the Departmental Appeals Board (the Board).  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), 498.5(*l*)(2).  CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied.  42 C.F.R. § 498.5(*l*)(2).  A hearing on the record, also known as an oral hearing, is required under the Act.  *Crestview Parke Care Ctr. v. Thompson*, 373 F.3d 743, 748-51 (6th Cir. 2004).  The provider bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c).

**B.  Issues**

Whether summary judgment is appropriate; and

Whether there was a basis for the revocation of Petitioner’s billing privileges and Medicare enrollment.

**C.  Findings of Fact, Conclusions of Law, and Analysis**

My conclusions of law are set forth in bold followed by the undisputed facts and analysis.

**1.  Summary judgment is appropriate.**

CMS filed a motion for summary judgment.  Petitioner opposes the motion.  A provider whose Medicare enrollment and billing privileges have been revoked and provider agreement terminated has a right to a hearing and judicial review pursuant to sections 1866(h)(1) and (j) of the Act and 42 C.F.R. §§ 498.3(b)(8); 498.5(b), (*l*).  A hearing on the record, also known as an oral hearing, is required under the Act.  Act §§ 205(b), 1866(h)(1), (j)(8); *Crestview*, 373 F.3d at 748-51.  A party may waive appearance at an

Page 5

oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.  In this case, Petitioner has not waived the right to oral hearing or otherwise consented to a decision based only upon the documentary evidence or pleadings.  Accordingly, disposition on the written record alone is not permissible, unless summary judgment is appropriate as I conclude it is in this case.

Summary judgment is not automatic upon request but is limited to certain specific conditions.  The Secretary’s regulations at 42 C.F.R. pt. 498 that establish the procedures to be followed in adjudicating Petitioner’s case do not establish a summary judgment procedure or recognize such a procedure.  However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  *See, e.g.*, *Ill. Knights Templar Home*, DAB No. 2274 at 3-4 (2009); *Garden City Med. Clinic*, DAB No. 1763 (2001); *Everett Rehab. & Med. Ctr.*, DAB No. 1628 at 3 (1997).  The Board also has recognized that the Federal Rules of Civil Procedure (Fed. R. Civ. P. 56) do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order paragraphs II.D and G.  The parties were given notice by the Prehearing Order that summary judgment is an available procedural device, and that the law as it has developed related to Fed. R. Civ. P. 56, will be applied.  The parties were advised that a fact alleged and not specifically denied may be accepted as true for purposes of ruling upon a motion for summary judgment.  The parties were also advised that on summary judgment evidence is considered admissible and true unless a specific objection is made.  Prehearing Order ¶ II.G.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  In determining whether there are genuine issues of material fact for trial, the ALJ must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  *Mission Hosp. Reg’l Med. Ctr.*, DAB No. 2459 at 4 (2012) (and cases cited therein); *Experts Are Us, Inc.*, DAB No. 2452 at 4 (2012) (and cases cited therein); *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300 at 3 (2010) (and cases cited therein); *see also Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 248 (1986).

Page 6

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differ from that used in resolving a case after a hearing.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  *Holy Cross Vill. at Notre Dame, Inc.*, DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  *Dumas Nursing & Rehab., L.P.*, DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden of persuasion.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d*,*Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 Fed. App’x 181 (6th Cir. 2005).

There is no dispute that Petitioner submitted seven claims to Medicare for payment related to five Medicare-eligible beneficiaries for home health services.  The seven claims filed by Petitioner were for home health services that were provided without a valid physician certification of eligibility which is a Medicare requirement pursuant to 42 C.F.R. § 424.22.  Whether or not the undisputed conduct is a basis for revocation of Medicare enrollment and billing privileges is resolved against Petitioner as a matter of law, as are Petitioner’s asserted defenses.

Viewing the evidence before me in a light most favorable to Petitioner and drawing all inferences in Petitioner’s favor, I conclude that there are no genuine disputes as to any material facts pertinent to revocation under 42 C.F.R. § 424.535(a)(8)(ii).  CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate.

**2.  Billing privileges are abused, within the meaning of 42 C.F.R. § 424.535(a)(8)(ii), when CMS determines that a provider has a pattern or practice of submitting claims that do not meet Medicare requirements.**

**3.  Petitioner submitted seven claims during the period May 22, 2017 to June 6, 2018, for home health services that were provided in violation of 42 C.F.R. § 424.22(a)(1) and (2) because the home health services were provided without a valid physician certification of eligibility.**

Page 7

**4.  There is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).**

**5.  The effective date of revocation in this case was May 4, 2019, 30 days after the date of the notice of initial determination to revoke.  42 C.F.R. § 424.535(g).**

**6.  I have no authority to review the imposition or duration of a bar to re-enrollment.  42 C.F.R. §§ 424.545, 498.5(*l*)(1)-(2).**

**a.  Undisputed Facts**

The facts are undisputed or, for purposes of summary judgment, Petitioner’s averred facts are accepted as true and all favorable inferences are drawn in favor of Petitioner.  The parties were advised that a fact alleged and not specifically denied may be accepted as true for purposes of ruling upon a motion for summary judgment.  The parties were also advised that on summary judgment evidence is considered admissible and true unless a specific objection is made.  Prehearing Order ¶ II.G.

Petitioner is a home health agency operating in Houston, Texas.  CMS Ex. 1 at 13.  In May and September 2017, Petitioner submitted three claims for home health services provided to three Medicare beneficiaries with episodes of care, that is, home health certifications, for the periods March 11 to May 9, 2017, March 25 to May 11, 2017, and July 14 to September 11, 2017.  The claims listed Dr. Lynn Gibbs as the ordering/certifying physician.  CMS Ex. 1 at 15.  In February, May, and June 2018, Petitioner submitted four claims for home health services provided to two Medicare beneficiaries with home health certifications for the periods January 22 to March 22, 2018, February 20 to April 20, 2018, March 23 to May 21, 2018, and December 22, 2017 to February 19, 2019.  The claims listed Dr. Grace Varas as the ordering/certifying physician.  CMS Ex. 1 at 16.  Petitioner concedes it delivered home health services to the five Medicare beneficiaries as alleged by CMS.  RFH at 1-2.  Petitioner does not dispute that the seven home health certifications for the five residents that gave rise to the seven claims were not signed by a physician as required by 42 C.F.R. § 424.22(a)(2), but were signed by a nurse practitioner.  Petitioner has never disputed that it filed the seven claims with Medicare.  CMS Ex. 1 at 10-11; RFH at 1-2; P. Br. at 3-4.  Petitioner concedes CMS has authority to disallow the claims but requests that its Medicare enrollment and billing privileges not be revoked.  P. Br. at 4.

For purposes of summary judgment, I accept as true Petitioner’s assertions that:

Page 8

Petitioner did not know that the seven home health certifications that were the basis for the seven claims were signed by a nurse practitioner and not a physician (RFH at 2); and

There is no allegation that services rendered by Petitioner for the five beneficiaries were not needed.

**b.  Analysis**

The CMS hearing officer upheld revocation of Petitioner’s Medicare enrollment and billing privileges and termination of Petitioner’s provider agreement pursuant to authority of 42 C.F.R. § 424.535(a)(8)(ii).  The regulation delegates to CMS the authority to revoke as follows:

(a)  *Reasons for revocation*.  CMS may revoke a currently enrolled provider or supplier’s Medicare billing privileges and any corresponding provider agreement or supplier agreement for the following reasons:

* * * *

(8)  *Abuse of billing privileges.*  Abuse of billing privileges includes either of the following:

* * * *

(ii) CMS determines that the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  In making this determination, CMS considers, as appropriate or applicable, the following:

(A) The percentage of submitted claims that were denied.

(B) The reason(s) for the claim denials.

(C) Whether the provider or supplier has any history of final adverse actions (as that term is defined under § 424.502) and the nature of any such actions.

(D) The length of time over which the pattern has continued.

Page 9

(E) How long the provider or supplier has been enrolled in Medicare.

(F) Any other information regarding the provider or supplier’s specific circumstances that CMS deems relevant to its determination as to whether the provider or supplier has or has not engaged in the pattern or practice described in this paragraph.

42 C.F.R. § 424.535(a)(8)(ii) (italics in original).

The only determination of CMS or the MAC that is subject to my review in a provider and supplier enrollment case is the reconsidered determination.  42 C.F.R. § 498.5(*l*)(1)-(2); *Neb Grp. of Ariz.*, DAB No. 2573 at 7 (2014).  I conclude that the undisputed facts, drawing all favorable inferences for Petitioner, establish a prima facie case of abuse of billing privileges under 42 C.F.R. § 424.535(a)(8)(ii).

Under the regulation, an abuse occurs when CMS determines, after consideration of whichever of the specified factors CMS deems appropriate, that Petitioner has a pattern or practice of submitting claims that fail to meet Medicare requirements.  The undisputed evidence shows that during the period May 22, 2017 to June 6, 2018, a period of more than a year, Petitioner submitted seven claims related to five Medicare-eligible beneficiaries for home health services that were delivered without the certification of eligibility signed by a physician which is a required condition for payment by Medicare under 42 C.F.R. § 424.22(a)(1) and (2).  The hearing officer stated that she considered some of the factors specified for consideration by 42 C.F.R. § 424.535(a)(8)(ii), including the fact that seven noncompliant claims exceeded three;4
 the total time covered by the certificates signed by the nurse practitioner from March 11, 2017 to May 21, 2018; and the fact that Petitioner knew that a nurse practitioner could not sign a certificate of eligibility for home health services under 42 C.F.R. § 424.22(a)(1) and (2).  CMS Ex. 1 at 4-5.  The regulation does not require CMS to consider all the listed factors, rather, CMS has discretion to choose which to consider.  For purposes of summary judgment, I have accepted as true that Petitioner did not know a nurse practitioner was signing the certificates of eligibility.  However, even without consideration of that fact, CMS considered two other factors to determine that Petitioner had a practice or pattern of submission of non-compliant claims.  Accordingly, I conclude that CMS had a prima

Page 10

facie basis to revoke Petitioner’s Medicare enrollment and billing privileges and the discretion to do so after consideration of the factors established by 42 C.F.R. § 424.535(a)(8)(ii) that the CMS hearing deemed applicable and appropriate.

Petitioner raises several arguments that must be resolved against Petitioner as a matter of law.

Petitioner argues that it relied upon the representations of a nurse practitioner that all seven of the certificates of eligibility were signed by physicians.  P. Br. at 4.  Petitioner has not presented the certificates of eligibility nor requested a subpoena for the nurse practitioner to testify.  Petitioner does not now dispute that all seven certificates were actually signed by the nurse practitioner and not a physician.  Therefore, Petitioner has raised no genuine dispute of material fact as to who actually signed the certificates.  Petitioner’s argument that it did not know the certificates were not signed by a physician when it delivered services and, more significantly, that it filed noncompliant claims with Medicare for home health services, is no defense.  42 C.F.R. § 424.22(a)(2).  Petitioner, as the enrolled provider, is responsible to ensure compliance with Medicare requirements.  42 C.F.R. § 424.510(d)(3).  Further, Petitioner is ultimately responsible as a matter of law for ensuring that its claims for Medicare reimbursement are accurate and for any errors in those claims.  *Louis J. Gaefke*, *D.P.M.*, DAB No. 2554 at 5-6 (2013) (citing 73 Fed. Reg. 36,448, 36,455 (June 27, 2008)).  As the drafters of 42 C.F.R. § 424.535(a)(8) stated:

In conclusion, we believe that providers and suppliers are responsible for the claims they submit or the claims submitted on their behalf.  We believe it is essential that providers and suppliers take the necessary steps to ensure they are billing appropriately for services furnished to Medicare beneficiaries.

73 Fed. Reg. at 36,455.  When 42 C.F.R. § 424.535(a)(8) was revised to include the submission of noncompliant claims as a basis for revocation, CMS explained that:

Proposed new paragraph (a)(8)(ii) would permit revocation if we determine that the provider or supplier has a pattern or practice of billing for services that do not meet Medicare requirements such as, but not limited to, the requirement that the service be reasonable and necessary.  We explained that a provider or supplier should be responsible for submitting valid claims at all times and that the provider or supplier’s repeated failure to do so poses a risk to the Medicare Trust Funds.

Page 11

79 Fed. Reg. at 72,513.  Petitioner was responsible for ensuring that it was submitting valid claims that complied with the requirements 42 C.F.R. § 424.22(a)(1) and (2).  Therefore, Petitioner was responsible to ensure that all certificates of eligibility were properly signed by a physician in accordance with 42 C.F.R. § 498.22(a)(1) and (2).  Petitioner’s assertion that it relied on the false representations of a nurse practitioner is simply no defense to Petitioner’s failure to ensure all its claims complied with Medicare requirements.

Petitioner also argues that it did not “knowingly or recklessly engage in a pattern or practice of submitting claims for services provided without valid certification.”  P. Br. at 3.  However, 42 C.F.R. § 424.535(a)(8)(ii) contains no element of intent, knowledge, or recklessness.  *Louis J. Gaefke, D.P.M.*, DAB No. 2554 at 7.  Petitioner submitted seven claims for home health services that it delivered and those claims were not compliant with Medicare requirements because the certificates of eligibility were not signed by a physician as required by 42 C.F.R. § 424.22(a)(1) and (2).  The hearing officer found that more than three noncompliant claims was sufficient to constitute a pattern and I have no reason to question that seven noncompliant claims also constitute a pattern.  Petitioner has submitted no authority to the contrary.

I conclude that Petitioner has failed to rebut the CMS prima facie case or establish an affirmative defense by a preponderance of the evidence.  Accordingly, I conclude that CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(ii).

Having found that there is a basis for revocation, I have no authority to review the exercise of discretion by CMS to revoke Petitioner’s Medicare enrollment and billing privileges.  *Dinesh Patel, M.D.*, DAB No. 2551 at 10 (2013); *Fady Fayad, M.D.*, DAB No. 2266 at 16 (2009), *aff’d*, *Fayad v. Sebelius*, 803 F. Supp. 2d 699 (E.D. Mich. 2011); *Abdul Razzaque Ahmed, M.D.*, DAB No. 2261 at 16-17, 19 (2009), *aff’d*, *Ahmed v. Sebelius*, 710 F. Supp. 2d 167 (D. Mass. 2010).

Summary judgment is also appropriate as to the effective date of revocation.  Pursuant to 42 C.F.R. § 424.535(g):

Revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier, except if the revocation is based on Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational.

Page 12

42 C.F.R. § 424.535(g).  In this case, the revocation became effective 30 days after April 4, 2019, the date the MAC mailed notice of its initial determination to Petitioner.  CMS Ex. 1 at 13-14.  Accordingly, I conclude that the revocation of Petitioner’s Medicare enrollment and billing privileges was effective May 4, 2019.  42 C.F.R. § 424.535(g).

CMS imposed a re-enrollment bar of three years in this case.  Under the regulations, the re-enrollment bar after a revocation is a minimum of one year and a maximum of three years.  42 C.F.R. § 424.535(c).5
  There is no statutory or regulatory language establishing a right to review of the duration of the re-enrollment bar CMS imposes.  Act § 1866(j)(8); 42 C.F.R. §§ 424.535(c); 424.545; 498.3(b); and 498.5.  The Board has held that the duration of a revoked supplier’s re-enrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and, thus, is not subject to ALJ review.  *Vijendra Dave*, *M.D.*, DAB No. 2672 at 11 (2016).

Finally, Petitioner argues that “Petitioner is a corporation in good standing that has been in the home health business for over 14 years and has never been found guilty or convicted of federal or state felony offenses” and “it would be punitive and harsh to revoke the Petitioner’s enrollment and billing privileges in the Medicare program.”  P. Br. at 3-4.  To the extent Petitioner’s arguments may be construed as a request that I grant equitable relief, I have no authority to do so.  *US Ultrasound*, DAB No. 2302 at 8 (2010).  Furthermore, I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  *1866ICPayday.com, L.L.C.*, DAB No. 2289 at 14 (2009).

III.  Conclusion

For the foregoing reasons, the Medicare enrollment and billing privileges of Petitioner are revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii), effective May 4, 2019.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Citations are to the 2018 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the initial determination, unless otherwise stated. back to note 1
                      2. Petitioner filed copies of several documents with its request for hearing that it did not mark and file as exhibits with its brief.  Copies of the same documents were filed by CMS as CMS Ex. 1 at 17-34. back to note 2
                      3. A “supplier” furnishes services under Medicare and includes physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) (42 U.S.C. § 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(e)) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes. back to note 3
                      4. Under a prior version of the regulation, CMS indicated in the regulatory history that it would not revoked billing privileges unless there were at least three instances of abusive billing practices.  73 Fed. Reg. 36,448, 36,455 (June 27, 2008). back to note 4
                      5. The regulation was revised effective November 4, 2019, increasing the maximum bar to 10 years.  84 Fed. Reg. 47,794, 47,855 (Sept. 10, 2019). back to note 5 Back to top
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