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                              Susan M. Gillispie, DAB CR6262 (2023)
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Susan M. Gillispie, DAB CR6262 (2023)








  
  
    

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





Susan M. Gillispie,
(NPI: 1134512072)
(PTANs: A095712221, G8986303, G9006889, R193043, R198055, R198056,
R198057, R198058, R198059, R198060, R201287, R201749, R209977, R209978,
R209979, R209980, R209981, R209982, R210783, R215873, R215874)
Petitioner,

v.

Centers for Medicare & Medicaid Services
Docket No. C-21-577Decision No. CR6262April 3, 2023

        
              
    

      DECISION

Petitioner, Susan M. Gillispie, a nurse practitioner, was enrolled in the Medicare program as a supplier of services.  The Centers for Medicare & Medicaid Services (CMS), through a Medicare Unified Program Integrity Contractor (UPIC), requested that Petitioner produce medical records for 20 patients for whom claims for durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) had been submitted to Medicare.  Medicare records indicated that Petitioner was the ordering professional for the DMEPOS items.  Petitioner did not produce the requested records.  On that basis, CMS revoked Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) and imposed a 10-year reenrollment bar.  Petitioner now appeals.

I affirm CMS’s determination.  I find that CMS is authorized to revoke Petitioner’s Medicare privileges because Petitioner ordered DMEPOS items for the patients identified in the record requests but did not maintain documentation for those patients and could not supply that documentation when the UPIC requested them.  I have no authority to review the length of the reenrollment bar.

**Page 2**

I. Background and Procedural History

Petitioner is a nurse practitioner who was enrolled as a Medicare supplier in Alabama, Washington, and Oregon.  Petitioner’s Exhibit (P. Ex.) 1 at 2 (¶¶ 2-3); *see also*P. Ex. 3 at 1 (¶ 1).  In a letter dated February 19, 2020, the UPIC requested that Petitioner provide medical records for 20 Medicare beneficiaries for dates of service between January 1, 2016, and May 21, 2019.  CMS Ex. 9.  The UPIC sent the letter via Federal Express to Petitioner at 71325 SE 40th Ave., Hillsboro, OR 97123.1  *Id.* at 1.  On February 20, 2020, the UPIC sent a second letter via USPS Certified Mail to Petitioner at P.O. Box 3158, Portland, OR 97208.  CMS Ex. 10 at 1.  The letters warned that, if Petitioner failed to provide the requested documentation within 45 days of the dates of the letters, Petitioner’s Medicare enrollments would be subject to revocation.  CMS Ex. 9 at 2; CMS Ex. 10 at 2.  On February 21, 2020, Petitioner signed and faxed a form to the UPIC.  CMS Ex. 13.  On the form, Petitioner wrote:  “I no longer work for this company, and I do not have access to the records.”  *Id.*at 2.

The UPIC sent follow-up letters, dated July 16 and July 17, 2020, to Petitioner at the same addresses.  CMS Exs. 11, 12.  On July 22, 2020, Petitioner signed a second form and faxed it to the UPIC, this time stating:  “I previously filled out this form and faxed it in February 2020[.] I no longer work for this company and do not maintain any records in my home[.] For any questions please reach out to the company directly.”  CMS Ex. 14.

In a letter dated September 1, 2020, the UPIC covering enrolled suppliers in Alabama advised Petitioner that her Medicare privileges were revoked, effective October 1, 2020.  CMS Ex. 7 at 1; *see also*CMS Ex. 15 at 2.  In separate letters, each dated September 8, 2020, the UPIC covering enrolled suppliers in Oregon and Washington, advised Petitioner that her Medicare privileges in those states were revoked, effective October 8, 2020.  CMS Ex. 6 at 1; CMS Ex. 8 at 1; *see also*CMS Ex. 15 at 2.  Each letter explained that the contractor revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(10), because, when asked to do so, she did not provide medical records for 20 Medicare beneficiaries for whom she had ordered DMEPOS items.  CMS Ex. 6 at 1, 4; CMS Ex. 7 at 1, 4; CMS Ex. 8

**Page 3**

at 1, 4.  Each letter also stated that CMS had imposed a 10-year reenrollment bar, pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 6 at 2; CMS Ex. 7 at 2; CMS Ex. 8 at 2-3.

Petitioner requested reconsideration.2  CMS Exs. 1-3.  In a reconsidered determination dated January 6, 2021, a CMS hearing officer upheld the revocation of Petitioner’s Medicare enrollments in Alabama3, Oregon, and Washington.  CMS Ex. 15.

Petitioner timely requested a hearing before an administrative law judge.  The Civil Remedies Division acknowledged receipt of Petitioner’s hearing request and issued my Standing Prehearing Order (Prehearing Order).  Consistent with the Prehearing Order, CMS submitted a motion for summary judgment (CMS Br.) and 15 exhibits (CMS Exs. 1-15).  CMS did not propose to call any witnesses.  Petitioner submitted her prehearing brief opposing CMS’s motion for summary judgment (P. Br.) and three exhibits (P. Exs. 1-3).  Petitioner proposed herself as a witness and offered her written direct testimony as P. Ex. 3.  CMS filed a Motion for Leave to File a Reply and a proposed Reply brief (CMS Reply).  Petitioner opposed CMS’s Motion for Leave.  I grant CMS’s motion and receive CMS’s Reply over Petitioner’s objection.

CMS did not object to Petitioner’s proposed exhibits.  P. Exs. 1 and 2 are arguably objectionable.  P. Ex. 1 duplicates Docket Entry # 6 in the Departmental Appeals Board (DAB) Electronic Filing System (E-File).  P. Ex. 2 may be new evidence introduced for the first time before me without a showing of good cause.  *See*42 C.F.R. § 498.56(e).  I nevertheless admit the exhibits.  I admit P. Ex. 1 for convenience because it is easier to identify in DAB E-File than Docket Entry # 6.  I admit P. Ex. 2 because CMS has not argued that Petitioner failed to present it at the reconsideration level of review and, in any event, I accord it no weight in deciding this case.  Petitioner did not object to CMS’s exhibits.  To summarize, in the absence of objection, I admit CMS Exs. 1-15 and P. Exs. 1-3 into the record.

**Page 4**

Although CMS has moved for summary judgment, and Petitioner opposes the motion, this matter may be decided based on the written record without considering whether the standards for summary judgment have been met.  Prehearing Order ¶¶ 8-11; Civil Remedies Division Procedures § 19(d).  My Prehearing Order informed the parties that “[a]n in‐person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Prehearing Order ¶ 10.  CMS did not request to cross-examine Petitioner, the only proposed witness.  Because a hearing is unnecessary, I decide this case on the written record.  I deny CMS’s motion for summary judgment as moot.

II. Issue

The issue in this case is whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under section 1842(h)(9) of the Social Security Act (Act) (codified at 42 U.S.C. § 1395u(h)(9)) and 42 C.F.R. § 424.535(a)(10).

III. Jurisdiction

I have jurisdiction to hear and decide this case.  *See*42 C.F.R. §§ 498.3(b)(17), 498.5(*l*)(2);*see* *also*Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 405.803(a), 424.545(a), 498.1(g).

IV. Discussion

A. **Applicable Legal Authority**

The Act authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); *see also* Act § 1861(u) (42 U.S.C. § 1395x(u)).

The Act further authorizes the Secretary to revoke a supplier’s Medicare enrollment (for a period of not more than one year for each act) if the supplier does not maintain, and, upon request, provide access to documentation relating to written orders or requests for payment for durable medical equipment or other items or services written or ordered by the supplier.  Act § 1842(h)(9) (42 U.S.C. § 1395u(h)(9)).  Implementing the statutory provisions, CMS’s regulations provide that CMS, acting on behalf of the Secretary, may revoke a supplier’s Medicare enrollment if the supplier fails to comply with the documentation or access requirements of 42 C.F.R. § 424.516(f).  42 C.F.R. § 424.535(a)(10).

**Page 5**

Section 424.516(f)(2)(i) provides that a physician or an “eligible professional” who orders DMEPOS items must maintain documentation of the transactions for seven years.  “Documentation” includes written and electronic documents, including the NPI (national provider identifier) of the physician or eligible professional, relating to written orders and certifications and requests for payment for items of DMEPOS.  42 C.F.R. § 424.516(f)(2)(ii).

B. **Findings of Fact, Conclusions of Law, and Analysis**4

***1. Because I decide this case on the written record, and not on summary judgment, I need not draw all inferences in Petitioner’s favor.***

Petitioner argues that I should deny CMS’s motion for summary judgment and grant her a hearing because she raises genuine disputes as to issues of material fact.  P. Br. at 4.  However, a hearing is unnecessary because CMS did not request to cross-examine Petitioner, the only proposed witness.  I therefore decide this case based on the written record.  Deciding this case based on the written record does not deprive Petitioner of a hearing.  Courts recognize that, although a case may be decided on summary judgment or based on the written record, the administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing.  *See CNG Transmission Corp. v. FERC*, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing”).

Because I decide this case on the written record, rather than on summary judgment, I am not required to construe the evidence in the light most favorable to Petitioner.  Instead, I weigh the evidence in accordance with the burdens of proof and of persuasion established in a long line of DAB cases.  More than 20 years ago, the DAB interpreted the Part 498 regulations to include evidentiary burden shifting.  Specifically, if a Medicare supplier challenges the existence of a regulatory deficiency, CMS must make a prima facie case that the supplier failed to substantially comply with federal requirements, and, if this occurs, the supplier must then prove substantial compliance by a preponderance of the evidence.  *Hillman Rehab. Ctr.*, DAB No. 1611 (1997) (1997 WL 123708 at *6); *see* *Batavia Nursing & Convalescent Inn*, DAB No. 1911 (2004) (2004 WL 714962); *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004) (2004 WL 230864), *aff’d,* *Batavia Nursing & Convalescent Ctr. v. Thompson*,129 F. App’x 181 (6th Cir. 2005); *Emerald Oaks*, DAB No. 1800 (2001) (2001 WL 1688390 at *5).

The *Hillman*decision states that this scheme places the “ultimate burden of persuasion” on the supplier.  1997 WL 123708 at *6.  The decision further notes that the ultimate burden of persuasion determines the outcome of a case when the evidence is in equipoise.

**Page 6**

*Id.*at *5 n.7.  The same analysis – if CMS makes a prima facie case, then Petitioner has the ultimate burden of persuasion on the issue of compliance – applies to all cases adjudicated under the Part 498 regulations, including cases involving the revocation of enrollment in the Medicare program.  *Adora Healthcare Servs., Inc*., DAB No. 2714 at 4‐5 (2016); *Medisource Corp*., DAB No. 2011 at 2-3 (2006).  As I explain in greater detail below, Petitioner’s arguments are insufficient to carry the ultimate burden of persuasion.

***2. CMS made a prima facie case that Petitioner******ordered DMEPOS items for 20 Medicare beneficiaries but did not maintain documentation relating to those orders and could not provide access to that documentation upon request by the UPIC, which violates 42 C.F.R. § 424.516(f).***

CMS has produced billing records for Medicare claims of 20 beneficiaries, with names, dates of birth, and Medicare beneficiary numbers, along with the dates of service.  CMS Exs. 6-8 at 4.  Each of these claims identifies Petitioner as the ordering supplier by her name and NPI.  *Id*.  Petitioner does not argue that CMS’s billing records do not accurately depict the claims as submitted.  Petitioner does not argue that she did not order the DMEPOS items for the beneficiaries.  Nor does she argue that she produced any records related to any of the identified claims.  Thus, the evidence is sufficient to establish a prima facie case that CMS had authority to revoke Petitioner’s Medicare enrollments pursuant to 42 C.F.R. § 424.535(a)(10).5  Further, as I next explain, Petitioner’s evidence is insufficient to overcome CMS’s prima facie case.

***3. Petitioner failed to prove by a preponderance of the evidence either that she complied with the documentation and access requirements of section 424.516(f)(2) or, alternatively, that she is exempt from those requirements.***

As the appellate decision of the DAB in *George M. Young, M.D.*, DAB No. 2750 (2016) explains, the plain language of section 424.516(f)(2) requires practitioners who order DMEPOS items billed to Medicare to do two things.  First, they must retain documents related to orders or certifications for DMEPOS items for a period of seven years.  DAB

**Page 7**

No. 2750 at 8.  Second, they must provide CMS or its contractor access to those documents upon request.  *Id.*  Petitioner concedes that she treated the patients for whom CMS requested records, but she neither maintained documents related to her treatment nor produced them to CMS’s contractor.  This is all that is required for CMS to revoke Petitioner’s Medicare enrollment.

In her declaration, Petitioner states that in late 2018 or early 2019, she agreed to work as an “Independent Services Provider” with Lifeline Recruiting, Inc. (Lifeline).  P. Ex. 3 at 2 (¶ 3).  Petitioner explains that she worked for Lifeline from January 2019 to May 2019, performing telemedicine services on behalf of Lifeline clients.  *Id.*(¶ 4).  Petitioner describes “making determinations based on remote conversations with patients regarding the potential provision of medical solutions, including durable medical equipment.”  *Id.*  Petitioner states that her routine consisted of “log[ging] into an online portal to access a queue of patients and related information . . . and prescrib[ing] medical solutions when applicable.”  *Id.*(¶ 5).  Petitioner explains that Lifeline retained all data that was contained within the online portal and that she “relied exclusively on the online portal to store and supply [the healthcare related information].”  *Id.*(¶ 6).  Petitioner further recounts that when the UPIC requested medical records “related to previous patients with whom [she] had worked” during her employment with Lifeline, she explained to a UPIC employee that she “no longer worked for Lifeline and that it was likely that [she] would not be able to produce the requested records.”  *Id.*at 2-3 (¶ 8).  Thus, Petitioner’s own testimony establishes that she failed to retain records of the telemedicine visits she provided and therefore could not produce the records when the UPIC requested them.

Petitioner attempts to excuse her failure to maintain and produce the records by arguing that Lifeline prevented her from maintaining the records:  “Petitioner’s ability to maintain records in accordance with 42 C.F.R § 424.516(f)(2)(ii) was materially hindered and impeded by the actions of [a client of Lifeline].”  P. Br. at 2 (internal quotation marks omitted).  Petitioner’s defense amounts to a contention that her contract with Lifeline prohibited her from keeping her own records of patient encounters.  Petitioner testified that, according to her agreement with Lifeline, the “patient information and related data [would be] stored and entered into [an] online portal,” and that she was instructed by Lifeline representatives that she “would hold no ownership of any of the healthcare related information, and [that she] relied exclusively on the online portal to store and supply the same.”  P. Ex. 3 at 2 (¶ 6).  She also asserts that an individual associated with a Lifeline client “at some point during 2019 or 2020. . . erased and/or removed the online database of patient treatment records, including records of all patient interactions and treatment administered by Petitioner during the time of her work.”  P. Ex. 1 at 4 (¶ 16).  Thus, according to Petitioner, the actions of that individual “had a material effect on [her] ability to fulfill her duties as a [supplier].”  P. Ex. 1 at 6 (¶ 27).

Petitioner’s attempts to blame others for her noncompliance do not exempt Petitioner from complying with the requirements imposed by 42 C.F.R. § 424.516(f)(2), however.

**Page 8**

Medicare providers and suppliers, as participants in the program, have a duty to familiarize themselves with Medicare requirements.  *Gulf South Med. & Surgical Inst., & Kenner Dermatology Clinic, Inc.*, DAB No. 2400 at 9 (2011), *aff’d*, *Gulf South Med. & Surgical Inst., et al. v. Sebelius,*2:11-cv-02353 (E.D. La. Oct. 17, 2012); *John Hartman, D.O.*, DAB No. 2564 at 3 (2014) (quoting *Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc.*, 467 U.S. 51, 63 (1984) (“persons ‘who deal with the government are expected to know the law[.]’”)); *see also Thomas M. Horras & Christine Richards*, DAB No. 2015 at 34 (2006) (officer and principal of provider had responsibility to be aware of and adhere to applicable law and regulations), *aff’d, Horras v. Leavitt*, 495 F.3d 894 (8th Cir. 2007).  Thus, Petitioner knew or should have known of her duty to keep records of her encounters with patients for whom she prescribed DMEPOS items.  If Petitioner entered a contract that conflicted with her regulatory obligations, she did so at her peril.  Actions in 2020, such as Lifeline revoking access to its online medical records portal and even the criminal conduct of one individual in allegedly deleting the relevant records, do not absolve Petitioner of her duty to maintain and retain records under 42 C.F.R. § 424.516(f)(2).6  As the *Young*decision makes clear, Petitioner was obligated “to maintain records from the time they came into existence [in 2019] through a period of seven years as required under the regulation.”  DAB No. 2750 at 11.  There is no dispute that Petitioner herself did not maintain any of the records.

Petitioner further argues she relied on alleged misstatements by a UPIC employee and therefore stopped trying to gain access to the records in Lifeline’s possession.  P. Br. at 4‐6.  As I discuss in greater detail below, I reject Petitioner’s estoppel argument.  However, even if I were to accept that the UPIC’s actions interfered with Petitioner’s efforts to retrieve the records from Lifeline (a finding I do not make),7 this would not remove the basis for her revocation.  As I have explained above, eligible professionals must *both*maintain records related to DMEPOS items they order *and*provide access to those records on request.  Thus, even if Petitioner hypothetically may have been able to *produce* the records given more time, the very fact that she did not have them in her possession to produce when asked establishes that she did not herself *maintain* the records as she was required to do.

**Page 9**

Accordingly, I find that Petitioner has failed to rebut CMS’s prima facie case by a preponderance of the evidence.

***4. CMS had a legal basis to revoke Petitioner’s Medicare enrollment, pursuant to 42 C.F.R. § 424.535(a)(10).***

Many appellate decisions of the DAB hold that an administrative law judge’s review of CMS’s determination to revoke a supplier’s Medicare enrollment is limited to deciding whether CMS has established one or more of the grounds specified in section 424.535(a).  *See, e.g., William Garner, M.D.*, DAB No. 3026 at 16 (2020); *Norman Johnson, M.D.*, DAB No. 2779 at 11 (2017), and cases cited therein.  Petitioner contends that other actors – her former employer, its associates, and the UPIC – impeded her ability to comply with the records requests.  Petitioner urges me to consider that the actions of these third parties “had a material effect on [her] ability to fulfill her duties as a [supplier], and should be considered mitigating factors of [her] inability to provide records.”  P. Ex. 1 at 6 (¶ 27).

However, while CMS itself has discretion to consider “unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” I do not.  *Johnson*, DAB No. 2779 at 11 (citing *Care Pro Home Health, Inc*., DAB No. 2723 at 9 n.8 (2016)).  I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  *Id.*(citing *Abdul Razzaque Ahmed, M.D.*, DAB No. 2261 at 19 (2009), *aff’d*, *Ahmed v. Sebelius*, 710 F. Supp. 2d 167 (D. Mass. 2010)).  Rather, once CMS exercises its discretion and determines that revocation is warranted, the administrative law judge may not “look behind that exercise of discretion to ask whether he or she, or the Board, standing in CMS’s shoes, would reach the same decision to revoke.”  *Young*, DAB No. 2750 at 11 (citing *Sandra E. Johnson, CRNA*, DAB No. 2708 at 16 (2016)).

Here, CMS was authorized to revoke Petitioner’s Medicare enrollment under section 424.535(a)(10).  CMS produced records showing that Petitioner ordered DMEPOS items for 20 Medicare beneficiaries – her name and NPI are on each of the billing entries.  Petitioner admits that she treated the 20 beneficiaries, but she did not maintain records of the encounters during which she ordered DMEPOS items for the beneficiaries.  Nor did Petitioner produce any such records or give CMS access to them.  I must therefore affirm the revocation under section 424.535(a)(10).

**Page 10**

***5. Petitioner’s other arguments are not bases to reverse the revocation of her Medicare enrollments.***

***a. Petitioner has not established that the UPIC or CMS committed affirmative misconduct; therefore, equitable estoppel does not provide a basis to overturn the revocation of Petitioner’s Medicare enrollment and billing privileges.***

Petitioner argues that CMS should be estopped from revoking her Medicare enrollment and billing privileges based on what she characterizes as misconduct by a UPIC representative.8  P. Br. at 4-6.  Petitioner argues the UPIC representative misrepresented facts by stating it was “not a problem” Petitioner did not have immediate access to the requested documents and advising that she should “immediately” sign the attached attestation form.  P. Br. at 5.  Petitioner asserts she reasonably relied upon the UPIC representative’s advice to immediately return the form, without utilizing the entire 45-day window to obtain documents.  *Id.*  Petitioner explains that this “reliance on [the UPIC representative’s] material misrepresentations resulted in the loss of over 40 days that Petitioner could have utilized to obtain the requested documents, ultimately resulting in the loss of Petitioner’s enrollment as a [supplier].”  *Id.*

By arguing that the UPIC or its employee committed misconduct in advising Petitioner to sign and submit an attestation form, Petitioner apparently acknowledges that courts and administrative tribunals generally disfavor claims of estoppel against government actors.  The Supreme Court has expressed doubt as to whether the government can ever be estopped from enforcing valid regulations based on statements or actions of government employees or their agents.  *See Heckler v. Cmty. Health Servs. of Crawford Cnty.*, 467 U.S. 51, 63 (1984); *Schweiker v. Hansen*, 450 U.S. 785 (1981).  As the Supreme court has determined, “[a]lthough mistakes occur, we may assume with confidence that Government agents attempt conscientious performance of their duties and in most cases provide free and valuable information to those who seek advice about government programs.”  *Office of Personnel Management v. Richmond*, 496 U.S. 414, 433 (1990).

However, while expressing doubt that estoppel is ever available against the federal government, the Court left open the possibility that estoppel might lie upon a showing of “affirmative misconduct,” such as fraud, by the federal government.  *See id.*at 421.  Many

**Page 11**

appellate decisions of the DAB, consistent with the prevailing view in the federal courts, also hold that estoppel does not lie against the federal government absent a showing of affirmative misconduct.  *See, e.g., Richard Weinberger, M.D. and Barbara Vizy, M.D.*, DAB No. 2823 at 18-19 (2017) (citing *Office of Personnel Management v. Richmond*, 496 U.S. at 421); *Pacific Islander Council of Leaders*, DAB No. 2091 at 12 (2007) (citing, *e.g., South Carolina Dep’t of Social Servs.*, DAB No. 1998 (2005)).

In the present case, I do not find that the UPIC representative’s actions constitute “affirmative misconduct” that would support a claim of estoppel.  As the appellate decision in *Weinberger & Vizy*emphasized, “affirmative misconduct appears to require something more than failing to provide accurate information or negligently giving wrong advice.”  DAB No. 2823 at 19(internal quotation marks and citations omitted).  Petitioner’s characterization of her interactions with the UPIC might support an inference that a UPIC employee negligently gave wrong advice, but not that they committed affirmative misconduct.  I therefore conclude that the UPIC did not commit affirmative misconduct that would invalidate CMS’s legal basis to revoke Petitioner’s enrollment under 42 C.F.R. § 424.535(a)(10).

***b. Petitioner’s general arguments in equity are not a basis to reverse the revocation of Petitioner’s Medicare enrollment and billing privileges.***

To the extent Petitioner argues as a general matter that revocation of her Medicare enrollment and billing privileges is inequitable under the circumstances presented, CMS’s discretionary act to revoke a provider or supplier is not subject to review based on equity or mitigating circumstances.  *Letantia Bussell, M.D.*, DAB No. 2196 at 13 (2008).  Rather, “the right to review of CMS’s determination by an [administrative law judge] serves to determine whether CMS had the *authority* to revoke [the provider’s or supplier’s] Medicare billing privileges, not to substitute the [administrative law judge’s] discretion about whether to revoke.”  *Id*. (italics substituted for original underscoring).  Once CMS establishes a legal basis on which to proceed with a revocation, then the CMS determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  *See id*. at 10; *see also Ahmed,*DAB No. 2261 at 19 (if CMS establishes the regulatory elements necessary for revocation, an administrative law judge may not substitute his or her “discretion for that of CMS in determining whether revocation is appropriate under all the circumstances”).  Accordingly, because I have determined that CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10), the regulations do not authorize me to overturn CMS’s decision to revoke.

**Page 12**

***c. I have no authority to review the length of the reenrollment bar.***

When a supplier’s billing privileges are revoked, she may not participate in the Medicare program until the end of the reenrollment bar, which must be for a minimum of one year but no more than 10 years (except under circumstances not present here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1).  Failing to produce any requested document violates section 424.516(f), and here Petitioner failed to do so 20 times.  *See* *Young*, DAB No. 2750 at 9-10 (suggesting that failing to produce any requested document violates section 424.516(f)).

In this case, CMS imposed a 10-year reenrollment bar.  CMS submits CMS Ex. 4, which is a notification returning Petitioner’s October 16, 2020 reenrollment application.  The notification explains that Petitioner is currently under a reenrollment bar “which prevents enrollment in Medicare at this time.”  *Id.* at 1.  To the extent Petitioner contends CMS should have accepted her application to reenroll, I have no authority to consider this issue.  CMS’s decision setting the length of a reenrollment bar is not an initial determination subject to administrative review.  *V**ijendra Dave, M.D.*, DAB No. 2672 at 9-12 (2016); *accord*, *Garner*, DAB No. 3026 at 16; *Lilia Gorovits, M.D., P.C.*, DAB No. 2985 at 15-16 (2020), *aff’d, Gorovits v. Becerra*, No. 2:20-cv-01850 (E.D. Pa. May 17, 2021) (2021 WL 1962903); *see* 42 C.F.R. § 498.3(b)(17).

V. Conclusion

CMS was authorized to revoke Petitioner’s Medicare enrollment under section 424.535(a)(10) because she did not comply with the document retention and access requirements of section 424.516(f).  I have no authority to review the reenrollment bar imposed.  I therefore affirm CMS’s determination.

Endnotes

1  Petitioner’s multiple Medicare enrollments are associated with multiple correspondence addresses.  CMS Ex. 9 at 6; CMS Ex. 10 at 6-9; CMS Ex. 11 at 6‐8; CMS Ex. 12 at 6-8.  Nevertheless, Petitioner has not argued that she failed to receive the initial or follow-up records requests.  Moreover, I infer that she did, in fact, receive the records requests because in each instance she responded by fax to the UPIC that she did not have copies of the requested records.  CMS Exs. 13, 14.  In her request for reconsideration dated November 6, 2020, Petitioner represented that she did not receive the revocation notices, due to “a recent move.”  CMS Ex. 1.  However, even if she did not receive the revocation notices, she filed her reconsideration request timely and CMS considered it.  CMS Ex. 15 at 1.  Thus, any issue with misdirected mail is not material to my decision.

2  With her original request for reconsideration (CMS Ex. 1), Petitioner submitted a cover sheet (CMS Ex. 2) and a Medicare Reconsideration Request Form, Form CMS-20033 (CMS Ex. 3).  Petitioner also submitted a supplemental request for reconsideration, dated November 16, 2020.  CMS Ex. 5.

3  The reconsidered determination noted that “[m]edical records request letters were not sent to [Petitioner’s] Alabama Medicare enrollment mailing correspondence address because the enrollment was not in existence” when the letters were mailed.  CMS Ex. 15 at 4.  The hearing officer nevertheless determined Petitioner’s revocation in Alabama was proper pursuant to 42 C.F.R. § 424.535(i).  *Id.*  Petitioner has not disputed this finding in the present proceeding.

4  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

5  Petitioner does contend that CMS failed to make a prima facie case because it did not “provide proof that [UPIC] representatives on behalf of CMS *did not*interfere and/or restrain Petitioner’s ability to fulfill her regulatory obligations.”  P. Br. at 4 (emphasis in original).  This is incorrect.  The facts to which Petitioner refers relate to her claim that CMS should be estopped from revoking her Medicare billing privileges.  *See*discussion below, section IV.B.5.a.  Estoppel is an affirmative defense.  *See*Rule 8(c) Fed. R. Civ. Pro; *see also Arkansas Dep’t of Human Svcs.*, DAB No. 423 (1983) 1983 WL 182210 *4 n.2.  Therefore, facts related to this defense are not part of CMS’s case in chief.

6  Petitioner additionally asserts that CMS, or the government more generally, likely had access to the requested documents because the Department of Justice prosecuted an individual who dealt with Lifeline for conspiracy to commit healthcare fraud.  P. Ex. 1 at 5 (¶ 18).  However, for the same reasons articulated above, the fact that the government may be able to gain access to the requested documents from another source does not relieve Petitioner of the duty to maintain the documents herself.

7  Petitioner’s argument that the UPIC prevented her from pursuing all avenues to retrieve the records from Lifeline appears inconsistent with her assertion that a Lifeline client removed or deleted the electronic files.  If the files were indeed deleted, then no additional amount of time would have been sufficient to retrieve them.

8  In her hearing request, Petitioner characterizes the UPIC’s conduct as “bad faith actions” (P. Ex. 1 at 5) and argues “the manner in which [the UPIC] performed its audit duties to CMS raises its own concerns related to Petitioner’s procedural due process rights.”  *Id.*(¶ 20).  To the extent Petitioner is making a constitutional argument, I have no authority to adjudicate constitutional claims.  *Fady Fayad, M.D.*, DAB No. 2266 at 14 (2009), *aff’d, Fayad v. Sebelius,*803 F. Supp. 2d 699 (E.D. Mich. 2011).
  
          /s/
        Leslie A. Weyn

                      Administrative Law Judge Back to top
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