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

Advance Group LLC
(PTAN: 5270510001),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-14-1955
Decision No. CR4126
Date: August 17, 2015
DECISION

There is no basis for the revocation of the Medicare enrollment and billing privileges of
Petitioner, Advance Group LLC.

I. Procedural History and Jurisdiction

Palmetto GBA (Palmetto), operating as the National Supplier Clearinghouse, notified
Petitioner by letter dated June 30, 2014, that Petitioner’s Medicare enrollment as a
supplier of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS)
was revoked retroactive to May 5, 2014. Palmetto imposed a two year bar to re-
enrollment. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) | at 18-19.
Palmetto cited 42 C.F.R. §§ 405.800, 424.57(c)(7) and (e), 424.535(a)(1) and (5)(ii), and
424.535(g)' as the legal authority for the revocation based on noncompliance with 42
C.F.R. §§ 424.57(c)(7) (supplier standard 7).

' Citations are to the 2013 revision of the Code of Federal Regulations (C.F.R.), unless
otherwise stated.
Petitioner requested reconsideration of the initial determination to revoke by letter dated
July 2, 2014. CMS Ex. | at 22-23. Palmetto issued a reconsidered determination on July
25, 2014, upholding the revocation of Petitioner’s Medicare enrollment and billing
number based on a violation of supplier standard 7 (42 C.F.R. § 424.57(c)(7))- CMS Ex.
1 at 1-5. Petitioner requested a hearing before an administrative law judge (ALJ) on
September 22, 2014 (RFH). The case was assigned to me for hearing and decision on
October 6, 2014, and an Acknowledgment and Prehearing Order (Prehearing Order) was
issued at my direction. No issue has been raised as to the timeliness of Petitioner’s
request for hearing, the parties do not challenge my authority to decide this case, and I
conclude that I have jurisdiction.

CMS filed a motion for summary judgment, a memorandum in support of the motion
(CMS Br.), and CMS Exs. | through 3, on November 5, 2014. Petitioner filed its
opposition to the CMS motion for summary judgment and supporting brief (P. Br.) with
P. Exs. | and 2 on December 5, 2014. CMS waived its right to file a reply brief. On
February 3, 2015, I denied CMS’s motion for summary judgment and ordered the parties
to file a joint status report advising me of their availability to participate in a two-day
hearing to be conducted by video teleconference (VTC). The parties filed joint status
reports on March 2 and 4, 2015. On March 5, 2015, I set the case for hearing on June 17
and 18,2015. Petitioner waived an oral hearing on May 26, 2015, and requested
judgment on the pleadings and documentary evidence. CMS did not object or request an
oral hearing. On May 28, 2015, I accepted the waiver of oral hearing and cancelled the
hearing. The parties have not objected to my consideration of the exhibits and CMS Exs.
1 through 2 and P. Exs. | and 2 are admitted as evidence. Petitioner did not object to my
consideration of CMS Ex. 3. However, CMS Ex. 3 relates only to an attempted site visit
of Petitioner on April 10,2014. Because the attempted site visit on April 10, 2014, is not
cited in the reconsidered determination as a basis for revocation of Petitioner’s
enrollment and billing privileges (CMS Ex. | at 1-5), CMS Ex. 3 is not relevant.
Accordingly, CMS Ex. 3 is not admitted as evidence.

> The reconsidered determination cites 42 C.F.R. § 424.57(e). CMS Ex. | at 4. CMS
advises me that is a clerical error and that the correct citation is 42 C.F. R. § 424.57(d),
which authorizes revocation for failure to meet standards established by 42 C.F.R.

§ 424.57(b) and (c). CMS Br. at 7,n.3. I accept the CMS representation that this was a
clerical error.
II. Discussion
A. Applicable Law

Section 1831 of the Social Security Act (the 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 contractors, such as
Palmetto. 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.> Act §§ 1834(j)(1) (42 U.S.C. § 1395mqj)(1));
1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)). Petitioner is a
DMEPOS supplier.

The Act requires the Secretary to issue regulations that establish a process for the
enrollment of providers and suppliers, including the right to a hearing and judicial review
in the event of denial or non-renewal. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to
42 CFR. § 424.505, a supplier 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. To receive direct-billing privileges,
a DMEPOS supplier must meet and maintain the Medicare application certification
standards set forth in 42 C.F.R. § 424.57(c). Among other requirements, a DMEPOS
supplier must maintain a physical facility on an appropriate site. 42 C.F.R.

§ 424.57(c)(7). An appropriate site for the physical facility must meet certain criteria,
including that the practice location is in a location accessible to the public, Medicare
beneficiaries, and CMS and its agents, and that the practice location must be accessible
and staffed during posted hours of operation. 42 C.F.R. § 424.57(c)(7)(i)(B), (C). A
DMEPOS supplier must provide complete and accurate information in response to
questions on its application for Medicare billing privileges and must report to CMS any
changes in information supplied on the application within 30 days of the change. 42
C.F.R. § 424.57(c)(2). A DMEPOS supplier must permit CMS or its agent to conduct

> A “supplier” furnishes services and supplies under Medicare. The term supplier
applies to 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) and 1835(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.
on-site inspections to ascertain supplier compliance with the Medicare enrollment
standards. 42 C.F.R. § 424.57(c)(8). All suppliers must be “operational,” which means
that a supplier “has a qualified physical practice location, is open to the public for the
purpose of providing health care related services, is prepared to submit valid Medicare
claims, and is properly staffed, equipped, and stocked . . . to furnish these items or
services.” 42 C.F.R. § 424.502.

The Secretary has delegated the authority to revoke enrollment and billing privileges to
CMS. 42 CFR. § 424.535. CMS or its Medicare contractor may revoke an enrolled
supplier’s Medicare enrollment and billing privileges and supplier agreement for any of
the reasons listed in 42 C.F.R. § 424.535. Specifically, CMS may revoke a supplier’s
enrollment and billing privileges if the supplier is determined not to be in compliance
with the enrollment requirements. 42 C.F.R. § 424.535(a)(1). CMS may also revoke a
currently enrolled supplier’s Medicare enrollment and billing privileges if CMS
determines, upon on-site review, that the supplier is no longer operational to furnish
Medicare covered items or services, or the supplier fails to satisfy any or all of the
Medicare enrollment requirements, or has failed to furnish Medicare covered items or
services as required by the statute or regulations. 42 C.F.R. § 424.535(a)(5)(ii). CMS
may revoke a DMEPOS supplier’s enrollment and billing privileges for failure to meet
the supplier standards established by 42 C.F.R. § 424.57(b) and (c). 42 C.F.R.

§ 424.57(e). After a supplier’s Medicare enrollment and billing privileges are revoked,
the supplier is barred from re-enrolling in the Medicare program for one to three years.
42 CFR. § 424.535(c).

A supplier whose enrollment and billing privileges have been revoked may request
reconsideration and review as provided by 42 C.F.R. pt. 498. A supplier 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 supplier,
giving the reasons for its determination and specifying the conditions or requirements the
supplier failed to meet, and advising the supplier of its right to an ALJ hearing. 42 C.F.R.
§ 498.25. If the decision on reconsideration is unfavorable to the supplier, the supplier
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. 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-
751 (6th Cir. 2004). The supplier bears the burden to demonstrate that it meets
enrollment requirements with documents and records. 42 C.F.R. § 424.545(c).

The Secretary’s regulations do not address the allocation of the burden of proof or the
standard of proof. However, the Board has addressed the allocation of the burden of
proof in many decisions. The standard of proof is a preponderance of the evidence.
CMS has the burden of coming forward with the evidence and making a prima facie
showing of a basis, in this case, for revocation of Petitioner’s enrollment. Petitioner
bears the burden of persuasion to rebut the CMS prima facie showing by a preponderance
of the evidence or to establish any affirmative defense. Batavia Nursing & Convalescent
Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904
(2004), aff'd, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001);
Cross Creek Health Care Ctr., DAB No. 1665 (1998); Hillman Rehab. Ctr., DAB No.
1611 (1997) (remand), DAB No. 1663 (1998) (aft. remand), aff'd, Hillman Rehab. Ctr. v.
United States, No. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999).

“Prima facie” means generally that the evidence is “[s]ufficient to establish a fact or raise
a presumption unless disproved or rebutted.” Black’s Law Dictionary 1228 (8th ed.
2004). Thus, CMS has the initial burden of coming forward with sufficient evidence to
show that its decision to revoke Petitioner’s Medicare participation and billing privileges
is legally sufficient under the statute and regulations. CMS makes a prima facie showing
of noncompliance if the credible evidence CMS relies on is sufficient to support a
decision in its favor absent an effective rebuttal by Petitioner.

B. Issues

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 text followed by my findings of fact and
analysis.

1. Judgment on the written pleadings and documentary evidence is
permissible in this case.

Petitioner may waive its right to appear and present evidence at an oral hearing by filing a
written waiver. 42 C.F.R. § 498.66(a). When a written waiver is filed by a petitioner, an
ALJ need not conduct an oral hearing except in two circumstances: the ALJ concludes
witness testimony is necessary to clarify facts at issue; or CMS shows good cause for
presenting oral testimony. 42 C.F.R. § 498.66(b). Petitioner waived its right to an oral
hearing consistent with the requirements of 42 C.F.R. § 498.66(a) and requested
judgment on the pleadings and evidence already submitted by the parties. CMS
concurred with Petitioner’s waiver of oral hearing and request for judgment on the
documents. I agree that oral testimony is not necessary for clarification of the facts at
issue and CMS has not argued there is cause for presenting oral testimony. The record in
this case consists of the documentary evidence admitted and the parties’ pleadings. 42
C.F.R. § 498.66. The parties had a reasonable opportunity for rebuttal as reflected by
their various filings. Accordingly, this decision is on the merits.
2. There was no basis to revoke Petitioner’s Medicare enrollment and
billing privileges pursuant to 42 C.F.R. §§ 424.57(e) and 424.535(a)(1)
based on a violation of 42 C.F.R. § 424.57(c)(7) (supplier standard 7).

It is necessary to delineate the specific issues before me.

Palmetto explained in its June 30, 2014 notice of initial determination that revocation was
based on noncompliance with supplier standard 7 (42 C.F.R. § 424.57(c)(7)) because
Petitioner’s business was not open when inspectors attempted to conduct site visits during
Petitioner’s reported hours of operation on April 10, May 2, and May 5, 2014. The initial
determination states “you are considered to be in violation of 42 C.F.R.

§ 424.535(a)(5)(ii) and all supplier standards as defined in 42 C.F.R. § 424.57(c).” CMS
Ex. | at 19. The revocation was upheld on reconsideration based on the attempted site
visits on May 2 and 5, 2014, only. CMS Ex. | at 14. CMS admits that the hearing
officer that issued the reconsidered determination did not consider evidence related to the
April 10, 2014 site visit because that evidence was not provided to her. CMS Br. at 7-8.
Accordingly, I will not consider the April 10, 2014 site visit and related evidence in
determining whether CMS had a basis to revoke Petitioner’s Medicare billing privileges
and enrollment. Pursuant to 42 C.F.R. § 498.5(1), a supplier such as Petitioner that is
dissatisfied with an initial determination, may request reconsideration. The regulation
provides no right to ALJ review of the initial determination related to Medicare
enrollment or revocation of enrollment. 42 C.F.R. § 498.5. Pursuant to 42 C.F.R.

§ 498.5(1)(2), CMS or its contractor, or a supplier such as Petitioner, that is dissatisfied
with a reconsideration determination is entitled to a hearing before an ALJ. This
regulation clearly indicates that the reconsidered determination, the last determination of
CMS or its agent, is the determination that is subject to ALJ review. Neb Group of
Arizona LLC, DAB No. 2573 at 7 (2014); Benson Ejindu, d/b/a Joy Medical Supply,
DAB No. 2572 at 5 (2014) (the reconsideration determination is the agency action that is
subject to review).

Furthermore, in this case revocation was upheld on reconsideration based on Petitioner’s
failure to show compliance with 42 C.F.R. § 424.57(c)(7) (supplier standard 7) and not
based on a violation of 42 C.F.R. § 424.535(a)(5). CMS Ex. | at 1-4. Although the
reconsideration hearing officer sets forth the definition of operational and states that a
supplier must be operational, she did not specifically conclude that Petitioner was not
operational and therefore subject to revocation of enrollment and billing privileges
pursuant to 42 C.F.R. § 424.535(a)(5). Rather, she concluded that revocation was
appropriate because Petitioner failed to show compliance with supplier standard 7.
Whether or not there was a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(5) on
the theory that Petitioner was not operational is not at issue before me because it was not
a basis for revocation upheld on reconsideration. Accordingly, I conclude that the
specific issue before me is whether or not Petitioner was in compliance with 42 C.F.R.

§ 424.57(c)(7) (supplier standard 7) during the site visits on May 2 and 5, 2014. It is well
established that even a single violation of a supplier standard is an adequate basis for
revocation of billing privileges and enrollment. Neb Group of Arizona LLC, DAB No.
2573 at 7; Benson Ejindu, d/b/a Joy Medical Supply, DAB No. 2572 at 5; Complete
Home Care, DAB No. 2525 at 6 (2013) (not necessary to determine whether or not
operational to find a violation of supplier standard 7); 18661CPayday.com, DAB No.
2289 at 13 (2009) (failure to comply with even one supplier standard is a basis for
revocation of enrollment and billing privileges). Although under 42 C.F.R. § 498.5(1)(2)
CMS could have requested review of the reconsidered determination, CMS did not do so
and did not preserve arguments regarding the April 10, 2014 site visit and whether or not
Petitioner was operational when the site visits occurred.

a. Facts

On Friday, May 2, 2014 at 11:45 a.m. and on Monday, May 5, 2014 at 10:45 a.m., site
visits were attempted at Petitioner’s facility located at 1328 C Reisterstown Road,
Pikesville, Maryland 21208. The attempts were made at the address on file with NSC as
Petitioner’s business location and during Petitioner’s posted hours of operation, which
were Monday through Friday, 9:00 a.m. — 5:00 p.m., and Saturday, 9:00 a.m. — 1:00 p.m.
CMS Ex. | at 7-8; CMS Ex. 26.

CMS filed the declaration of Beverly Ailiff dated October 24, 2014 with a copy of her
site investigation report. CMS Ex. 2. Ms. Ailiff was a Site Visit Inspector employed by
Overland Solutions, a contractor for Palmetto who conducted the two attempted site
inspections of Petitioner’s location. Inspector Ailiff states in her declaration that during
both site visits she found a sign on Petitioner’s door stating “OPEN,” however, the door
was locked both times and the lights were not on “during at least one” of the site visits.
CMS Ex. 2 at 2 (emphasis in original). Inspector Ailiff also states that she was able to
see through the glass door at Petitioner’s location and observed that Petitioner had
“merchandise and counters, but no people.” CMS Ex. 2 at 2. She asserts in her
declaration that during the site visits she “rang the doorbell and knocked loudly,” and
“waited for several minutes both times.” CMS Ex. 2 at 2 (emphasis in original). She
states that for one of the site visits she “walked around the building and waited a few
more minutes, and then rang and knocked at the entrance again.” CMS Ex. 2 at 2. She
maintains that there was no answer, response or any other sign of activity that someone
was in the office. CMS Ex. 2 at 2.

The site investigation report completed by Inspector Ailiff on May 5, 2014, detailing her
findings for the site visits on both May 2 and May 5, states that Petitioner had a
permanent, visible sign with its business name posted and its hours of operation were
posted. CMS Ex. | at 8-9, 13-14; CMS Ex. 2 at 5-6, 10. The report also states for both
site visits that there was a sign on the door indicating that the facility was open, however,
the door was locked. Inspector Ailiff specifically states in her report that she knocked but
no one answered and she was not able to complete the site visits. Inspector Ailiff does
not state in her report that she attempted to ring the doorbell. CMS Ex. 1 at 9, 13; CMS
Ex. 2 at 6, 10-11. Inspector Ailiff took five photos that are date and time stamped, three
of the photos are of the front glass door at Petitioner’s business location and two of the
photos are of the exterior of the building, one of which shows that Petitioner is situated in
a side alley of a shopping center. CMS Ex. | at 14-15; CMS Ex. 2 at 11-12. The photos
show that the glass door is not obscured by blinds or curtains and allows visibility
through the door. Also visible in the photos is a doorbell on the left side of Petitioner’s
front door. CMS Ex. | at 14; CMS Ex. 2 at 2, 11. Inspector Ailiff concluded based on
the evidence she collected that Petitioner’s office was not open, staffed, and accessible to
the public at the time of her site visits.

I find that the assertion by Ms. Ailiff in her declaration dated October 24, 2014, that she
rang the bell at Petitioner’s facility on May 2 and 5, 2014 (CMS Ex. 2 at 2), is
inconsistent with her May 5, 2014 report of site visit, a report made closer in time to the
site visit. In her report of site visit, Ms. Ailiff notes only that she knocked and no one
answered (CMS Ex. 2 at 10). The omission from her official site visit report that she
rang the bell is not insignificant. Either her report was poorly done and not particularly
reliable, or Ms. Ailiff may have been confusing her inspections of Petitioner with the
many other similar inspections her declaration suggests she would have done in the five-
month period between her inspections of Petitioner and the execution of her eclaration.*
I find her contemporaneous report more credible and weighty than her declaration made
five months after the date of her site visits. I find that Ms. Ailiff knocked but did not ring
the bell during her site visits and my finding is consistent with her contemporaneous
report of investigation.

Petitioner does not deny that the door was locked when the CMS inspector attempted to
visit Petitioner on May 2 and 5, 2014. RFH at 6; CMS Ex. | at 22; P. Br. at 5, 12-13.

* This obvious inconsistency could have been addressed in direct examination at an oral
hearing, subject to cross examination. The regulation clearly gives CMS the right to
request an oral hearing even when Petitioner waives appearance. 42 C.F.R. § 498.66(b).
All CMS needed to do was ask. Though some may assert that Petitioner waived the right
to cross-examine the inspector by waiving oral hearing and that should, for some reason,
enure to Petitioner’s disadvantage, I point out that it is not Petitioner’s burden to address
or resolve inconsistencies in the government’s evidence. I also note that CMS waived
cross-examination of Petitioner’s two witnesses, thus missing an opportunity to test the
credibility of those witnesses. I recognize however, that CMS may have deemed it better
strategy not to test the credibility of Petitioner’s witnesses or subject its own inspector to
cross examination or examination by the ALJ — such is the nature of the adversarial
hearing provided by the Act and regulations.
Petitioner disagrees that its business location was closed to the public, not staffed, or that
the inspector could not gain access. P. Br. at 5,9. Petitioner argues that on the dates of
the attempted site visits its staff was likely busy in the back room of the facility with
packages or using the restroom and did not hear the inspector knocking. RFH at 6-7.

Petitioner filed the declaration of its owner and operator Yeduard Pastushenko. P. Ex. 2.
Mr. Pastushenko testifies that he was at the facility at 1:00 p.m. on May 2, 2014; Ms.
Akkerman was present at the facility; and the door was locked when he arrived. Mr.
Pastushenko testifies that on May 5, 2014, he was at the facility until 10:00 a.m. and then
returned later at 1:30 p.m. P. Ex. 2 at 1. He states that Ms. Akkerman came to work that
day at 9:00 a.m. and was there for the complete day. He states that he locked the door
when he left and when he returned later that day he rang the doorbell and Ms. Akkerman
let him in. P. Ex. 2 at 1-2.

Petitioner also filed the declaration of Maya Akkerman, Petitioner’s office manager, as P.
Ex. 1. Ms. Akkerman states that she was present at the office on May 2 and 5, 2014,
during posted business hours. Ms. Akkerman claims she was at the location on both days
from 9 a.m. to 5 p.m., did not leave the location at all, and avers that the doorbell was
working the days of both site visits because she heard it ring and was able to receive
deliveries on both days and attended to customers. P. Ex. 1 at 2.

Petitioner submitted additional documents to the reconsideration hearing officer that
included claims and delivery tickets for items delivered to Petitioner’s customers on the
dates of the attempted site visits; attestations from the UPS® drivers, FedEx® delivery
personnel, Petitioner’s accountant, and sales representatives in support of its claim that it
was staffed and accessible to the public on the days of the attempted site visits. Petitioner
also provided copies of Ms. Akkerman’s on-line activities for the site visit dates at issue.
CMS Ex. | at 27-75.

b. Analysis

Supplier standard 7 (42 C.F.R. § 424.57(c)(7)) requires that Petitioner maintain an
appropriate site that meets specified criteria, including that it be accessible and staffed
during posted hours of operation. CMS or its agents must also be able to inspect the site
during normal hours of operation to ensure compliance with participation requirements.

There is no dispute that Petitioner had a facility at 1328 C Reisterstown Road, Pikesville,
Maryland 21208; that Petitioner’s Reisterstown address was on file with Palmetto; that
the site inspector visited the Reisterstown address on May 2 and 5, 2014; that Petitioner’s
hours of operation were displayed on the door during both visits; that there was a sign
posted on Petitioner’s door that said “OPEN;” and the door was locked during both site
visits. CMS Br. at 2; P. Br. at 5. What is in dispute is whether Petitioner was properly
10

staffed and accessible to the public during the attempted site visits on May 2 and 5, 2014,
as required by supplier standard 7, despite the fact the door was locked.

My review of whether or not CMS had a basis to revoke Petitioner’s participation in
Medicare is de novo. The CMS evidence, including the site investigation report and Ms.
Ailiff’s declaration are sufficient to constitute a prima facie showing that Petitioner was
not open and accessible on May 2 and 5, 2014. There is no dispute that when Ms. Ailiff
was inspecting she attempted to open the door and knocked but received no response and
could not gain access. However, Ms. Ailiff’s assertion in her declaration that she rang
the bell at Petitioner’s door is inconsistent with her site investigation report which she
made contemporaneously with her site investigation — that report only states that she
knocked on the door. Further, Ms. Ailiff’s report and her declaration do not indicate that
she attempted to call either of the telephone numbers clearly posted on Petitioner’s door.

Petitioner has presented credible and weighty evidence that its office was staffed and
accessible to the public at the times of the site visits on May 2 and 5, 2014, and that
access could be achieved by simply ringing the doorbell clearly pictured in the CMS
evidence. CMS Ex. 2 at 11. I conclude that Petitioner has satisfied its burden to rebut
the CMS prima facie showing. I have no reason to discount the credibility of either
Yeduard Patushenko (P. Ex. 2) or Maya Akkerman (P. Ex. 1) or the evidence Petitioner
presented on reconsideration (CMS Ex. | at 27-75). Petitioner offered without objection
the declaration of Ms. Akkerman. Ms. Akkerman testified credibly that she was available
in Petitioner’s shop during the posted hours of operation. Ms. Akkerman testified that
she was in the facility on both days of May 2 and May 5 conducting business. P. Ex. | at
2. Petitioner offered without objection the declaration of Mr. Pastushenko. I do not
discount Mr. Pastushenko’s statements regarding his observations while at the facility on
May 2 and May 5, 2014. Although his statements are credible, he was not present at the
times when Inspector Ailiff was conducting the two site visits. P. Ex. 2. I accept as
credible and weighty Petitioner’s evidence that someone was present in Petitioner’s store
and it was accessible to the public by ringing the doorbell or by calling the telephone
number clearly posted on the door.

CMS argues that even if Ms. Akkerman was in the facility, the fact that the door was
locked and she did not respond to the investigator’s attempts to gain entry is sufficient to
conclude that Petitioner was not open to the public or accessible. CMS Br. at 15-16. The
fact that Petitioner’s door was locked is not alone a sufficient basis to revoke Petitioner’s
billing privileges and Medicare enrollment. CMS points to no law that prohibits a
supplier enrolled in Medicare from locking its doors for safety or any other reason.
Keeping the door locked is not prohibited by the statute as long as the public has access
to the facility. Therefore, as the Board has suggested, a locked door must be attended so
that the door may be opened to the public upon request. The Board in Benson Ejindu
d/b/a Joy Medical Supply chose not to decide whether a supplier locking the door would
be categorically prohibited by 42 C.F.R. § 424.57(c)(7), but commented that Petitioner

11

needed to provide customers who encountered a locked door during regularly scheduled
hours with a reliable and effective means to overcome the barrier and obtain prompt
entry. DAB 2572 at 8 (2014). The Board specifically noted that the petitioner in that
case did not have a sign on its door that provided instruction to customers to call a posted
number if they encountered a locked door during posted business hours. Id. In this case,
Petitioner had a clearly visible doorbell adjacent to the door handle and a telephone
number to call if the door was locked that was visibly posted on its front door. Even
though there was no instruction to ring the bell or call the telephone number if the door
was locked, the presence of the bell button, which the evidence shows was operational,
and the telephone number are sufficient instruction even for one of less than average
intelligence. I consider these reasonable and effective means for a customer or CMS and
its agent to obtain entry when the door was locked. In this case there is credible evidence
that a staff member was present who could have responded to either the doorbell or a
telephone call at the time of the site inspections.

Accordingly, I conclude that there was no violation of 42 C.F.R. § 424.57(c)(7) (supplier
standard 7) and no basis for revocation of Petitioner’s enrollment and billing privileges as
a DMEPOS supplier.

III. Conclusion

For the foregoing reasons, I conclude that there is no basis for the revocation of
Petitioner’s Medicare enrollment and billing privileges.

/s/
Keith W. Sickendick
Administrative Law Judge


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

Benevolent Home Health Care
(CCN: 14-8065),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-14-1416
Decision No. CR4125
Date: August 14, 2015

DECISION

The Centers for Medicare & Medicaid Services (CMS) terminated Benevolent Home
Health Care’s (Petitioner) Medicare provider agreement as a home health agency (HHA)
with the Medicare program effective July 28, 2014, because CMS found Petitioner in
violation of multiple conditions of participation. Petitioner requested a hearing to dispute
some of the condition-level deficiencies. Because Petitioner did not dispute all of the
condition-level deficiencies, CMS moved for summary judgment. Based on the
undisputed facts in this case, I grant summary judgment and affirm CMS’s termination of
Petitioner’s Medicare provider agreement.

I. Background and Procedural History

Petitioner is an HHA that provided services to Medicare beneficiaries in the state of
Illinois. Following surveys conducted by the Illinois Department of Public Health (state
agency) on April 3, 2014, and May 29, 2014, CMS terminated Petitioner’s Medicare
provider agreement based on a finding that Petitioner was not in compliance with
multiple conditions of participation for HHAs. CMS found Petitioner had deficiencies in
regard to certain condition-level requirements including: 42 C.F.R. §§ 484.14
(organization, services, and administration), 484.16 (group of professional personnel),
484.18 (acceptance of patients, plan of care, and medical supervision), and 484.52
(evaluation of the agency’s program). CMS Exhibit (Ex.) 4 at 1; CMS Ex. 21.
CMS notified Petitioner that it terminated Petitioner’s Medicare provider agreement
effective July 28,2014. CMS Ex. 4. Petitioner timely requested a hearing and asserted
that CMS failed to provide Petitioner with sufficient time to correct the condition-level
deficiencies; however, Petitioner did not dispute the existence of the deficiencies. I
issued a prehearing order and established a briefing schedule. The parties filed
prehearing exchanges, which included a motion for summary judgment and prehearing
brief (CMS Br.), a response brief (P. Br.), and proposed exhibits (CMS Exs. 1-35 and P.
Exs. 1-5).

II. Issue

Whether CMS’s determination to terminate Petitioner’s Medicare provider agreement
should be affirmed because Petitioner failed to contest several of the condition-level
deficiencies identified in CMS’s determination.

III. Findings of Fact, Conclusions of Law, and Analysis’

The Social Security Act (Act) sets forth requirements for HHAs participating in the
Medicare and Medicaid programs, and authorizes the Secretary of Health and Human
Services (Secretary) to promulgate regulations implementing the statutory provisions.
42 U.S.C. §§ 1395x(m), (0), 1395bbb. The Secretary’s regulations governing HHA
participation in the Medicare program are found at 42 C.F.R. Part 484.

In order to participate in the Medicare program and obtain reimbursement for services
provided to beneficiaries, an HHA must comply with all applicable conditions as
specified in 42 C.F.R. Part 484. Periodic review of compliance with the conditions of
participation is required and such reviews or surveys are generally conducted by a state
agency. 42 C.F.R. § 488.10. Based upon the survey results, the state agency certifies
whether the HHA is complying with the conditions of participation. 42 C.F.R. §§ 488.20,
488.24, 488.26.

The state agency will certify that an HHA is not complying with the conditions of
participation when the deficiencies are “of such character as to substantially limit the
provider’s . . . capacity to furnish adequate care or which adversely affect the health
and safety of patients.” 42 C.F.R. § 488.24(b). Whether or not there is compliance
with a condition of participation depends upon “the manner and degree to which the
provider . . . satisfies the various standards within each condition.” 42 C.F.R.

' My findings of fact and conclusions of law are in bold and italics.
§ 488.26(b). State surveyors are required to “directly observe the actual provision of
care and services to residents and/or patients, and the effects of that care, to assess
whether the care provided meets the needs of individual residents and/or patients.”
42 CFR. § 488.26(c)(2).

CMS is authorized to terminate a Medicare provider agreement when the HHA no longer
meets the requirements of the Act or fails to meet the conditions of participation, among
other grounds listed in the regulation. 42 U.S.C. §§ 1395x(0)(6), 1395cc(b)(2)(B),
1395bbb(e); 42 C.F.R. § 489.53(a). Notably, CMS may terminate an HHA’s provider
agreement if the HHA has a single condition-level deficiency and such a decision is
discretionary. United Medical Home Care, Inc., DAB No. 2194, at 13-14 (2008).

1. Summary judgment is appropriate because there are no
disputed issues of material fact.

When appropriate, administrative law judges may decide a case arising under 42 C.F.R.
pt. 498 by summary judgment. Civil Remedies Division Procedures § 7 (eff. July 6,
2009);? see Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs. , 388 F.3d 168,
172 (6th Cir. 2004) (citing Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743 (6th
Cir. 2004)). Summary judgment is appropriate and an in-person hearing is not required if
the record shows that there is no genuine dispute of any material fact and the moving
party is entitled to judgment as a matter of law. Senior Rehab. & Skilled Nursing Ctr.,
DAB No. 2300, at 3 (2010). To determine whether there are genuine issues of material
fact for an in-person hearing, the administrative law judge must view the evidence in the
light most favorable to the non-moving party, drawing all reasonable inferences in that
party’s favor. Id.

In its response to CMS’s motion for summary judgment, Petitioner asserts that it timely
submitted a plan of correction to correct the condition-level deficiencies and that the four
alleged condition-level deficiencies resulted from Petitioner’s failure to have a director of
nursing. P. Br. at 3. Petitioner also contends its corrective efforts (namely hiring a
director of nursing and conducting in-service training) were sufficient to maintain
compliance with Medicare requirements and that CMS did not abide by its own rules and
regulations in deciding to terminate Petitioner’s Medicare provider agreement. P. Br. at
3-5, 8. However, neither in its hearing request nor its prehearing brief did Petitioner
dispute the condition-level deficiencies at 42 C.F.R. §§ 484.14 (organization, services,
and administration) and 484.18 (acceptance of patients, plan of care, and medical

> On January 1, 2015, the Civil Remedies Division modified its procedures and moved
the summary judgment provision to section 19(a).
supervision) addressed in CMS’s motion for summary judgment. See 42 C.F.R.

§ 498 .40(b) (the hearing request must “[i]dentify the specific issues, and the findings of
fact and conclusions of law with which the affected part disagrees” and “[s]pecify the
basis for contending that the findings and conclusions are incorrect.”). Therefore,
because the material facts on which this case turns are not in dispute and because the case
presents a purely legal issue, summary judgment is appropriate.

2. The undisputed material facts support a finding that Petitioner
failed to comply with two conditions of participation.

On April 3, 2014, the state agency completed a recertification survey that found
Petitioner not in compliance with six conditions of participation: 42 C.F.R.

§§ 484.14 (organization, services, and administration), 484.16 (group of professional
personnel) 484.18 (acceptance of patients, plan of care, and medical supervision),
484.36 (home health aide services), 484.52 (evaluation of the agency’s program), and
484.55 (comprehensive assessment of patients). CMS Ex. 6. The state agency
conducted a revisit survey on May 27-29, 2014. The May 29, 2014 survey found that
Petitioner continued to fail to meet the requirements of four HHA conditions of
participation: 42 C.F.R. § 484.14 (organization, services, and administration);

42 CFR. § 484.16 (group of professional personnel); 42 C.F.R. § 484.18 (acceptance
of patients, plan of care, and medical supervision); and 42 C.F.R. § 484.52
(evaluation of the agency’s program). CMS Exs. 21-31. CMS terminated
Petitioner’s Medicare provider agreement effective July 28, 2014, based on a review
of the surveys. CMS Ex. 4. In its motion for summary judgment, CMS contends that
there is no genuine dispute of material fact concerning Petitioner’s noncompliance
with two conditions of participation (42 C.F.R. §§ 484.14 and 484.18) at the time of
the revisit survey and CMS was authorized to terminate Petitioner’s participation in
the Medicare program. CMS Br. at 2.

In its response to the CMS motion for summary judgment, Petitioner does not argue that
it was in compliance with all HHA conditions of participation at the time of the May 29,
2014 revisit survey. Rather, Petitioner suggests that in the absence of immediate
jeopardy, an HHA has a right to correct a deficiency within six months before its
Medicare provider agreement can be terminated. Petitioner also contends that CMS
instructed the state surveyors to conduct the revisit survey early, without sufficient time
to allow Petitioner to correct the deficiencies at issue. Lastly, Petitioner believes that
CMS had an obligation to consider an alternative sanction less severe than termination
and that terminating Petitioner’s Medicare provider agreement, when other remedies
were available, was inappropriate. P. Br. at 8-11.
Petitioner’s argument fails to acknowledge that if I conclude Petitioner was out of
compliance with a single condition of participation, that noncompliance is a legitimate
basis for termination, and I must uphold CMS’s determination to terminate. Maintaining
compliance with all conditions of participation is required of HHAs participating in the
Medicare program. See 42 C.F.R. § 488.24. As relevant here, an HHA must properly
coordinate patient services. 42 C.F.R. § 484.14. During both surveys, the surveyors
found violations concerning the administrator’s failure to organize and direct Petitioner’s
ongoing functions, the absence of an acting agency supervisor during business hours, a
lack of performance evaluations, and missing information from staff records. CMS

Ex. 2, at 3-14. Also, an HHA must assure that its plans of care are accurate, complete,
reviewed periodically, and reflect the physician’s orders. 42 C.F.R. § 484.18. The
surveyors noted numerous examples where Petitioner’s staff failed to perform in
accordance with the residents’ plans of care, and failed to develop new plans of care.
CMS Ex. 21 at 18-24. Furthermore, the cited deficiencies are both repeat violations.
CMS Ex. 4.

Petitioner does not contest either condition-level deficiency (42 C.F.R §§ 484.14 and
484.18) CMS cited in its motion for summary judgment. Despite the fact that Petitioner
did not contest the condition-level deficiencies, I have reviewed all of the documents the
parties submitted and find the record reflects a number of circumstances that represent
violations of one or both of these conditions of participation.

For example, Petitioner does not dispute that when the state surveyor arrived at
Petitioner’s facility for a revisit survey on May 27, 2014, Petitioner did not have an
acting supervising physician or registered nurse who could be contacted during business
hours. See CMS Ex. 21 at 3-21. The individual Petitioner designated as an acting
supervising registered nurse could not be reached by telephone on May 27 or 28, 2014
during Petitioner’s business hours, when the state surveyors conducted the revisit survey.
CMS Ex. 21 at 10-12; CMS Ex. 22 at 2. Also, when the surveyor asked Petitioner’s
administrator for information concerning the acting supervising registered nurse, the
administrator could produce only an employee’s application and personnel file. When
reviewing the file, the surveyor determined that the file lacked information to show that
the employee was qualified for the position of acting supervising registered nurse
pursuant to Petitioner’s policies. CMS Ex. 21 at 7-8; CMS Ex. 28; CMS Ex. 30 at 3. The
surveyors also could not find any written acknowledgment indicating that the employee
had agreed to act as a supervising registered nurse or that she had been informed of the
requirements of this position. CMS Ex. 21 at 10-12; CMS Ex. 32 at 2. The surveyors
found there to be “potentially serious consequences” of these violations and stated that
“[Petitioner] had no supervising nurse to arrange care, consult with those providing
services, assign duties or contact outside providers for necessary services. There was no
oversight and coordination ... .” CMS Ex. 32 at 2. The regulations require Petitioner to
6

have a supervising registered nurse on staff and state that all skilled nursing services
furnished by HHAs must be under the supervision and direction of a physician or
registered nurse who is available at all times during operating hours and participates in all
activities relevant to the professional services furnished, including the development of
qualifications and the assignment of personnel. 42 C.F.R. § 484.14(d). Petitioner does
not dispute that it was in violation of this requirement at the time of the revisit survey.

In addition to the surveyors’ findings regarding the lack of an acting supervising
registered nurse at the time of the revisit survey, the surveyors also found other
undisputed examples of Petitioner’s failure to comply with 42 C.F.R. § 484.14. For
example, the surveyor requested to review ten patients’ clinical records as part of the
revisit survey. The administrator could not provide the ten records requested and only
provided the surveyor with five current patients’ clinical records and one record from a
discharged patient. CMS Ex. 21 at 5-6; CMS Ex. 32 at 2. Additionally, the administrator
could not provide a schedule showing nursing care and services provided to Petitioner’s
patients and could provide only incomplete information regarding the services these
patients needed. CMS Ex. 21 at 13-14; CMS Ex. 32 at 2-3. The administrator also could
not demonstrate that Petitioner complied with its policy to ensure complete and accurate
personnel records, including documenting that employees met necessary qualifications
and received proper training. See CMS Ex. 21 at 7-8; CMS Ex. 30 at 5-7. The regulation
at 42 C.F.R. § 484.14 requires HHAs to maintain certain standards with regard to
organization, services, and administration. Namely, administrative control and lines of
authority for the delegation of responsibility down to the patient care level must be
clearly set forth in writing and readily identifiable. 42 C.F.R. § 484.14. Also, the
administrator is required to organize and direct the HHA and ensure its ongoing
functions. 42 C.F.R. § 484.14(c). Based on the undisputed facts, Petitioner’s
administrator could not adequately organize and direct Petitioner’s ongoing functions.
Therefore, Petitioner was not in compliance with 42 C.F.R. § 484.14 at the time of the
May 27, 2014 revisit survey.

The undisputed facts in the record also indicate that at the time of the revisit survey
Petitioner’s patients were not provided with services in accordance with their care plans,
either because Petitioner could not provide the required services or because Petitioner’s
staff did not comply with the instructions in the patients’ care plans. See CMS Ex. 21 at
21-24. The surveyors found that Petitioner did not have accurate, current information
concerning the care its patients required. CMS Ex. 21 at 19-26; CMS Exs. 23-27, 34.
The surveyors found several examples where Petitioner’s records indicated that Petitioner
did not provide skilled nursing or nurse aide services, or arrange for physical therapy or
social worker visits, in accordance with patients’ care plans. See, e.g., CMS Ex. 21 at 19-
21; CMS Ex. 23 at 2 (patient record lacked summaries and notes regarding nursing
services received and indicates that nurse aide services are not being provided);
7

CMS Ex. 24 at 2, 5-6 (patient record not updated, no indication that required physical
therapy services were provided, and missing notes regarding services and plan of care for
certain time periods); CMS Ex. 26 at 2 (patient record indicates patient’s plan of care
required a physical therapy evaluation, skilled nursing services, and a social worker visit,
and there is no record these services were provided prior to the revisit survey).
Moreover, three patients did not have current care plans or records to show active
services; however, Petitioner’s administrator and one of the patients stated that
Petitioner’s staff continued to provide services. CMS Ex. 21 at 21-24; CMS Ex. 23 at 2,
6; CMS Ex. 24 at 2,6; CMS Ex. 25 at 2, 6.

Petitioner does not dispute that it did not meet the requirements of 42 C.F.R. § 484.18.
Section 484.18 requires that an HHA only accept patients for treatment when that HHA
reasonably expects it can adequately meet the patient’s medical, nursing, and social
needs. Further, that HHA must follow a written plan of care that a physician establishes
and periodically reviews. The undisputed facts indicated above show a condition-level
deficiency for failure to meet the requirements of 42 C.F.R. § 484.18.

These undisputed facts detailed above show a significant lack in coordination of services,
ability to ensure Petitioner’s ongoing functions, medical supervision, and documentation
in patients’ medical records and plans of care. Petitioner’s failures “substantially limit
[Petitioner’s] capacity to furnish adequate care” and “adversely affect the health and
safety of patients,” which resulted in condition-level deficiencies subjecting Petitioner to
termination. 42 C.F.R § 488.24(b); see Excelsior Health Care Servs., Inc., DAB No.
1529 (1995). Petitioner does not dispute these assertions and has pointed to no evidence
to the contrary. Accordingly, I conclude that Petitioner failed to meet certain Medicare
conditions of participation that substantially limited Petitioner’s capacity to furnish
adequate care at the time of the May 29, 2014 survey.

3. CMS was authorized to terminate Petitioner’s Medicare provider
agreement because Petitioner was not in compliance with two
conditions of participation at the time of state surveys.

Rather than disputing the underlying facts giving rise to the violations of 42 C.F.R.

§§ 484.14 and 484.18, Petitioner challenges CMS’s authority to terminate Petitioner’s
Medicare provider agreement based on condition-level deficiencies that were not at the
immediate jeopardy level before the six-month mandatory termination deadline.

42 U.S.C. § 1395bbb(e)(2). CMS argues that it has the discretionary authority to
terminate an HHA prior to the six month deadline for condition-level deficiencies that do
not rise to the immediate jeopardy level. CMS cites Aspen Grove Home Health, DAB
No. 2275 (2009), as support because that case indicates that CMS was authorized to
terminate Petitioner’s Medicare provider agreement within three months of a
recertification survey finding a non-immediate jeopardy condition-level deficiency.

The regulations do not require CMS to establish that the deficiencies resulted in
immediate jeopardy to patients in order to find noncompliance with the conditions of
participation. 42 C.F.R. § 488.24(b). See Excelsior Health Care Servs., Inc., DAB No.
1529. Instead the relevant regulation states that:

(a) Noncompliance. If the HHA is no longer in compliance with the
conditions of participation, either because the deficiency or deficiencies
substantially limit the provider’s capacity to furnish adequate care
but do not pose immediate jeopardy, have a condition-level
deficiency or deficiencies that do not pose immediate jeopardy,
or because the HHA has repeat noncompliance that results in a condition-
level deficiency based on the HHA’s failure to correct and sustain
compliance, CMS will:

(1) Terminate the HHA’s provider agreement; or

(2) Impose one or more alternative sanctions set forth in
§488.820(a) through (f) of this part as an alternative to
termination, for a period not to exceed 6 months.

42 CFR. § 488.830(a) (emphasis added).

CMS is authorized to terminate an HHA’s Medicare provider agreement when the HHA
is not in compliance with any of the Medicare conditions of participation. 42 C.F.R.

§ 488.865(b)(1); 42 C.F.R. § 489.53(a)(1), (3). CMS may impose the termination
sanction immediately or impose up to a six month period of alternative sanctions prior to
terminating the HHA’s Medicare participation. 42 C.F.R. § 488.830(a). Furthermore,
“CMS may terminate an HHA that is not in substantial compliance with program
requirements, and failure to meet one or more conditions of participation is considered a
lack of substantial compliance. [42 U.S.C. §§ 1395cc(b)(2)(B) 1395x(0)(6)]; 42 C.F.R.
§ 489.53(a)(3).” Aspen Grove Home Health, DAB No. 2275, at 3. CMS is not required
to allow the HHA an opportunity to correct its failure to comply with a condition of
participation before terminating the HHA. Id. at 23; Excelsior Health Care Servs., Inc.,
DAB No. 1529, at 6-7. Petitioner’s argument that it essentially had six months to take
corrective action before CMS could impose the remedy of termination is without merit.
Aspen Grove Home Health, DAB No. 2275, at 3; see also Cmty. Home Health, DAB No.
2134 (2007). Thus, CMS was authorized to terminate Petitioner’s Medicare provider

agreement effective July 28, 2014, based on the undisputed violations of two conditions
of participation. 42 C.F.R. §§ 484.14, 484.18.

Further, Petitioner essentially argues that CMS required the state surveyors to conduct a
second survey early and Petitioner should have received more time to prepare for the
revisit survey. P. Br. at 2. Petitioner contends that on May 12, 2014, the state agency
granted Petitioner 30 days (until June 11, 2014) to hire a new director of nursing. CMS
Ex. 3. However, on May 29, 2014, the state agency conducted the revisit survey, which
occurred within the time period allowed to replace the director of nursing and less than
45 days from the date of CMS’s notice of potential termination of Petitioner’s Medicare
provider agreement. CMS Exs. 1-2. CMS counters that the regulations do not permit a
challenge to a state agency’s decision regarding when to schedule a discretionary revisit
survey. CMS Br. at 11; see also 42 C.F.R. § 498.3; 42 C.F.R. § 488.28(c). Also, CMS
argues that the May 12, 2014 letter from the state agency was based on state requirements
for home health agencies and those state requirements are not identical to the federal
regulations governing Medicare participation which control the outcome of this case.
CMS Br. at 11; CMS Ex. 3.

I agree with CMS that I do not have jurisdiction to review the timing of the state agency’s
revisit survey. 42 C.F.R. § 498.3. Moreover, although Petitioner cites to the State
Medicare Operations Manual (SOM) to support its argument that the timeframe of the
second survey was inappropriate, the SOM states that the state agency is to conduct a
“first revisit survey no later than the 45th calendar day after the date of the...
termination notice to the provider or supplier.” SOM § 5110.4(c)(1). The May 29, 2014
revisit survey was conducted approximately 30 days after the date of the termination
notice and within the time period established by the SOM. CMS Ex. 1, 2; SOM

§ 5110.4(c)(1). CMS may authorize the state agency to conduct a second revisit survey
prior to termination under certain circumstances; however, a second revisit survey is
entirely discretionary. SOM § 5110.4(c)(1), (2). Thus, I find that in accordance with
CMS’s guidance, the state agency exercised its discretion with regard to the timing of the
revisit survey and that this is not an initial determination subject to my review. 42 CFR.
§ 498 .3(b).

4. Ihave no jurisdiction to review CMS’s decision to impose termination
rather than an alternative sanction.

Petitioner also argues that I should not impose the remedy of termination of Petitioner’s
Medicare provider agreement because other remedies are available and CMS had an
obligation to consider these other remedies. Petitioner contends I should consider
imposing an alternative sanction, such as appointing a temporary manager for Petitioner.
However, I have no jurisdiction to review CMS’s decision to impose termination of
10

Petitioner’s Medicare provider agreement. CMS’s decision to impose termination rather
than choosing to appoint a temporary manager for Petitioner is not an initial
determination subject to appeal, thus I have no jurisdiction to consider whether CMS
should have considered any alternative sanction or remedy instead of terminating
Petitioner’s Medicare provider agreement. 42 C.F.R. § 498.3(d)(14); United Medical
Home Care, Inc., DAB No. 2194, at 14.

IV. Conclusion

CMS is authorized to terminate an HHA’s Medicare provider agreement if the HHA has a
condition-level deficiency. 42 U.S.C. §§ 1395x(0)(6), 1395cc(b)(2)(B), 1395bbb(e);

42 CFR. § 489.53(a). As discussed above, CMS’s decision to terminate a Medicare
provider agreement is discretionary. United Medical Home Care, Inc., DAB No. 2194, at
13-14. Petitioner simply does not dispute the condition-level deficiencies at 42 C.F.R.

§ 484.14 (organization, services, and administration) and 484.18 (acceptance of patients,
plan of care, and medical supervision). Accordingly, I grant CMS’s motion for summary
judgment and affirm CMS’s determination to terminate Petitioner’s Medicare provider
agreement.

/s/
Scott Anderson
Administrative Law Judge


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

Igor Mitreski, M.D.
(OI File No. H-14-42184-9),

Petitioner,
v.
The Inspector General.
Docket No. C-15-1695
Decision No. CR4124
Date: August 14, 2015
DECISION

I sustain the determination of the Inspector General (I.G.) of the Department of Health
and Human Services to exclude Petitioner, Igor Mitreski, M.D., from participating in
Medicare, Medicaid, and all other federally-funded health care programs for a period of
three years. The I.G. is authorized to exclude Petitioner pursuant to section 1128(b)(3) of
the Social Security Act (Act) because Petitioner was convicted of misdemeanor aiding
and abetting the possession of controlled substances.

I. Background

On February 27, 2015, the I.G. determined to exclude Petitioner for a three-year period,
effective March 19, 2015, based on his guilty plea in the United States District Court for
the Southern District of lowa to one count of misdemeanor aiding and abetting simple
possession of controlled substances. Petitioner requested a hearing to challenge his
exclusion, and the case was assigned to me. Following a prehearing conference by
telephone, I directed the parties to file briefs and proposed exhibits. The I.G. filed its
brief and four proposed exhibits identified as I.G. Ex. 1 — 1.G. Ex. 4. Petitioner filed a
brief and five proposed exhibits that I identify as P. Ex. | — P. Ex. 5. Petitioner also filed
his own written direct testimony, labeled as an Affidavit (P. Aff.). The I.G. then filed a
reply brief. In the absence of objections, I receive the parties’ exhibits into the record.

Petitioner requested an in-person hearing to present his testimony. However, Petitioner
has already offered his written direct testimony as evidence (P. Aff.), which is accepted
into the record. The I.G. did not request cross-examination of Petitioner. Accordingly,
there is no need to convene an in-person hearing, and I decide this case based on the
written record.

II. Issues

The issues presented here are: (1) whether the I.G. has a basis to exclude Petitioner
pursuant to section 1128(b)(3) of the Act, and (2) whether the length of exclusion, three
years, is reasonable.

III. Findings of Fact and Conclusions of Law

It is undisputed that the I.G. has a statutory basis to exclude Petitioner. Petitioner pled
guilty to violating 21 U.S.C. § 844(a) and 18 U.S.C. § 2(a), aiding and abetting simple
possession of controlled substances, a misdemeanor. I.G. Ex. 2 at 1. In making this
guilty plea, Petitioner admitted that between March 31, 2010 and April 8, 2011, while he
was employed as a physician by the United States Department of Veterans Affairs (VA),
he used his VA prescription pad and Drug Enforcement Administration registration
number to write prescriptions for controlled substances outside the scope of his
employment to six individuals who did not have a doctor-patient relationship with
Petitioner and were not eligible to receive VA benefits. I.G. Ex. 2 at 3. The I.G. may
exclude an individual who has been convicted of a misdemeanor offense related to the
unlawful manufacture, distribution, prescription, or dispensing of controlled substances.
Act § 1128(b)(3). Petitioner’s conviction is for an offense directly related to the unlawful
prescription of controlled substances, so there is a clear statutory basis for the I.G. to
exclude him.

Petitioner also asks that I review the I.G.’s discretion to exclude Petitioner and consider
information about Petitioner that the I.G. did not consider, but I do not have the authority
to supplant the I.G.’s legal exercise of discretion. By regulation, my review is limited to
whether there is a legal basis for exclusion, not whether the I.G. should have exercised
his discretion to exclude. See 42 C.F.R. § 1001.2007(d). Therefore, Petitioner’s
arguments regarding the motivation behind his criminal conduct, the “victimless” nature
of his crime, his cessation of criminal conduct upon realizing he was involved in criminal
conduct, and his personal or professional character have no bearing on my decision to
sustain Petitioner’s exclusion as being legally permissible.

The presumptive length of a permissive exclusion taken pursuant to a misdemeanor
conviction that is related to the unlawful prescription of a controlled substance is three
years. 42 C.F.R. § 1001.401(c)(1). The I.G. may increase the length of exclusion if
aggravating factors are found, and may decrease the length of exclusion if mitigating
factors are found. The only aggravating and mitigating factors that the I.G. may consider
are established by regulation. Id. § 1001.401(c)(2)-(3). The I.G. imposed a three-year
exclusion against Petitioner and did not rely on any aggravating or mitigating factors.’
1G. Ex. | at 1.

Petitioner argues that there is a mitigating factor the I.G. did not consider when setting
the three-year exclusion period. He claims that he “fully cooperated with government
officials as part of their investigation and helped verify all non-VA individuals to whom
he had prescribed controlled substances for investigation.” P. Br. at 5. Asa result of his
cooperation, Petitioner alleges that additional cases were investigated, although the
government determined that all six of the individuals for whom Petitioner wrote
prescriptions “had legitimate health needs that required prescription medication,” so no
further action was taken against them. P. Br. at 5. But Petitioner has not offered any
evidence to support his claim. There is no evidence that the government initiated any
new or “additional” investigations because of Petitioner’s cooperation as the mitigating
factor requires. See 42 C.F.R. § 1001.401(c)(3)(i)(B). Petitioner bears the burden of
persuasion to prove the presence of a mitigating factor, and his unsupported claims fail to
meet that burden. Id. § 1005.15(b)(1).

Petitioner also disputes the date his exclusion took effect. He argues that I should make
Petitioner’s exclusion effective October 21, 2014, rather than March 19, 2015. Petitioner
cites a letter that the I.G. issued on October 1, 2014, warning Petitioner that the I.G. was
considering excluding him and allowing him and opportunity to submit any evidence that
the I.G. should consider. P. Ex. 1. Petitioner asserts that he never received that warning
letter (P. Aff. § 2), but I should nevertheless treat that letter as the I.G.’s exclusion notice.
P. Br. at5. The October 1, 2014 letter is not an exclusion notice as it expressly states that
the I.G. was, at that time, “considering excluding” Petitioner. P. Ex. 1 at 1. The letter did
not say that the I.G. had determined to exclude Petitioner. Notice of the actual exclusion
determination came in the February 27, 2015 letter. Petitioner’s exclusion was correctly
made effective 20 days after the notice of the actual exclusion. 42 C.F.R.

§ 1001.2002(b).

/s/
Steven T. Kessel
Administrative Law Judge

' The LG. points out that there is likely an aggravating factor in this case, specifically
that Petitioner’s criminal conduct lasted for one year or more. LG. Br at 7; LG. Ex. 2
at 3; see 42 C.F.R. § 1001.401(c)(2)(i). However, the LG. did not increase Petitioner’s
exclusion despite that alleged aggravating factor. I.G. Ex. 1 at 1. Therefore, I need not
address whether the I.G. has established the presence of that aggravating factor by a
preponderance of the evidence.


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

Natalya Shvets,
(O11. File No. 3-06-40317-9),

Petitioner,
v.
The Inspector General.
Docket No. C-15-719
Decision No. CR4119
Date: August 12, 2015
DECISION
Petitioner, Natalya Shvets, is excluded from participating in Medicare, Medicaid, and all
federal health care programs pursuant to section 1128(a)(1) of the Social Security Act
(Act) (42 U.S.C. § 1320a-7(a)(1)), effective December 18, 2014. Petitioner must be
excluded for a minimum period of five years. Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-
7(c)(3)(B)). An additional exclusion of three years, for a total period of exclusion of

eight years,' is not unreasonable based upon the three aggravating factors established in
this case and the absence of any mitigating factors.

' Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after
the period of exclusion expires. Reinstatement is not automatic upon completion of the
period of exclusion.
I. Background

The Inspector General of the Department of Health and Human Services (1.G.) notified
Petitioner by letter dated November 28, 2014, that she was being excluded from
participation in Medicare, Medicaid, and all federal health care programs for a minimum
period of eight years. The I.G. advised Petitioner that she was being excluded pursuant to
section 1128(a)(1) of the Act based on her conviction in the United States District Court
for the Eastern District of Pennsylvania (District Court), of a criminal offense related to
the delivery of an item or service under the Medicare or a state health care program. The
1G. considered three aggravating factors when deciding to extend the five-year minimum
mandatory period of exclusion to eight years. 1.G. Exhibit (Ex.) 1.

Petitioner timely requested a hearing by letter dated December 2, 2014, which the Civil
Remedies Division received on December 9, 2014. The case was assigned to me on
January 9, 2015, for hearing and decision. On February 2, 2015, I convened a prehearing
telephone conference, the substance of which is memorialized in my Prehearing Order
dated February 3, 2015 (Prehearing Order). On April 3, 2015, the I.G. filed a motion for
summary judgment, a brief in support of summary judgment (I.G. Br.), and I.G. Exs. 1
through 4. Petitioner filed a brief in opposition (P. Br.) and P. Exs. | and 2.’ The LG.
filed a reply brief (I.G. Reply) on June 17, 2015. Neither party objected to the offered
exhibits and I admit I.G. Exs. | through 4 and P. Exs. | and 2 as evidence.

> Petitioner’s brief and exhibits were uploaded to the Departmental Appeals Board
Electronic Filing System (DAB E-File) as Item #10. The exhibits were unnumbered and
not correctly marked as required by the Prehearing Order. The exhibits were not returned
to Petitioner for correction because it would have been impractical for Petitioner to
resubmit them within the timeframe I established for the potential resolution of this case.
I treat the criminal docket record (Item #10 pages 3-15) from the District Court as if
marked P. Ex. 1, pages 1-13. I treat the Notice of Appeal of Petitioner’s criminal
conviction as marked as P. Ex. 2 (Item #10 page 16). A more readable copy of
Petitioner’s brief is found in DAB E-File Item #11.
II. Discussion
A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights to a
hearing by an Administrative Law Judge (ALJ) and judicial review of the final action of
the Secretary of Health and Human Services (the Secretary).

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation
in any federal health care program any individual convicted under federal or state law of
a criminal offense related to the delivery of an item or service under Medicare or a state
health care program. The Secretary has promulgated regulations implementing these
provisions of the Act. 42 C.F.R. § 1001 101(a)2

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section
1128(a) of the Act will be for a period of not less than five years. 42 C.F.R.

§ 1001.102(a). The Secretary has published regulations that establish aggravating factors
the I.G. may consider to extend the period of exclusion beyond the minimum five-year
period, as well as mitigating factors that may be considered only if the I.G. proposes to
impose an exclusion greater than five years. 42 C.F.R. § 1001.102(b), (c).

The standard of proof is a preponderance of the evidence, and an individual subject to an
exclusion may not collaterally attack the conviction that provides the basis of the
exclusion. 42 C.F.R. § 1001.2007(c), (d). Petitioner bears the burden of proof and the
burden of persuasion on any affirmative defenses or mitigating factors, and the I.G. bears
the burden on all other issues. 42 C.F.R. § 1005.15(b).

B. Issues
The Secretary has by regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and

Whether the length of the exclusion is unreasonable.

42 CFR. § 1001.2007(a)(1).

> References are to the 2013 revision of the Code of Federal Regulations (C.F.R.), unless
otherwise indicated.
C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the pertinent findings of fact and
analysis.

1. Petitioner’s request for hearing was timely, and I have jurisdiction.
2. Summary judgment is appropriate in this case.

Petitioner’s request for hearing was timely filed and preserved Petitioner’s right to review
of justiciable issues. I have jurisdiction.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to
reasonable notice and an opportunity for a hearing. The Secretary has provided by
regulation that a sanctioned party has the right to hearing before an ALJ and both the
sanctioned party and the I.G. have a right to participate in the hearing. 42 C.F.R.

§§ 1005.2, 1005.3. Either or both parties may choose to waive appearance at an oral
hearing and to submit only documentary evidence and written argument for my
consideration. 42 C.F.R. § 1005.6(b)(5). An ALJ may also resolve a case, in whole or in
part, by summary judgment. 42 C.F.R. § 1005.4(b)(12). Summary judgment is
appropriate and no hearing is required where either: there are no genuine disputes of
material fact and the only questions that must be decided involve application of law to the
undisputed facts; or the moving party prevails as a matter of law even if all disputed facts
are resolved in favor of the party against whom the motion is made. A party opposing
summary judgment must allege facts which, if true, would refute the facts relied upon by
the moving party. See, e.g., Fed. R. Civ. P. 56(c); Garden City Med. Clinic, DAB No.
1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628, at 3 (1997) (holding in-person
hearing is required where the non-movant shows there are material facts in dispute that
require testimony); Thelma Walley, DAB No. 1367 (1992); see also New Millennium
CMHC, Inc., DAB CR672 (2000); New Life Plus Ctr. CMHC, DAB CR700 (2000).

Summary judgment is appropriate in this case. There are no genuine issues of material
fact in dispute. I may resolve the case by applying the law to the undisputed facts.

3. Petitioner’s exclusion is required by section 1128(a)(1) of the Act.
The Act provides:

(a) MANDATORY EXCLUSION. — The Secretary shall

exclude the following individuals and entities from

participation in any Federal health care program (as defined
in section 1128B(f)):
(1) Conviction of program-related crimes. — Any
individual or entity that has been convicted of a
criminal offense related to the delivery of an item or
service under title XVIII or under any State health care
program.

Act § 1128(a)(1). Section 1128(a)(1) requires the Secretary to exclude from participation
in Medicare, Medicaid, and all federal health care programs any individual: (1)
convicted of a criminal offense; (2) where the offense is related to the delivery of an item
or service; and (3) the delivery of the item or service was under Medicare or a state health
care program.

Petitioner does not dispute that on March 21, 2012, she was indicted on one count of
conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349, and seven
counts of health care fraud and aiding and abetting health care fraud in violation of 18
U.S.C. §§ 2 and 1347. Petitioner, a registered nurse, was charged with knowingly and
willfully executing a scheme and artifice to defraud Medicare and to obtain by false and
fraudulent pretenses, representations, and promises, money and property from the
Medicare program in connection with the delivery of and payment for health care
benefits, items and services during the period January 2005 to December 2008.4 1G. Ex.
2. Petitioner also does not dispute that she was convicted by a jury of one count of
conspiracy to commit health care fraud and seven counts of health care fraud and aiding
and abetting health care fraud as alleged in the indictment. Judgment was entered against
her on August 5, 2014. I.G. Ex. 3 at 1; 4. Petitioner was sentenced to 15 months on each
count with the sentences to run concurrently; three years of supervised release on each
count to run concurrently; and to pay restitution of $253,196. I.G. Ex. 4 at 3-7.

Petitioner argues that she “was a victim of miscarriage of justice” because the
“accusations against [her] were untrue and all the evidence against [her] were
unsubstantial.” P. Br. at 1. Petitioner argues that she did not submit a bill to Medicare
and she did not alter any charts. She avers that she was wrongfully accused. P. Br. at 1.
She states that the “DA and ADA [were] terminated from her case” and that “there is a
person from Department of Justice on [her] case.” P. Br. at 2. I may not consider
Petitioner’s arguments as a matter of law because they are collateral attacks on her
underlying conviction. Petitioner may not collaterally attack her conviction before me;

* It is alleged in the indictment that Petitioner falsely documented that hospice patients
received a more costly level of service than they actually received, and Petitioner’s
employer submitted claims to Medicare for reimbursement for the higher level of service
based on Petitioner’s documentation. I.G. Ex. 2 at 6.
and I cannot consider such attacks because I have no jurisdiction to review her
conviction. 42 C.F.R. § 1001.2007(d).

Petitioner states that she is appealing her conviction. P. Br. at 2; P. Ex.2. A pending
appeal is not a basis to stay or overturn the I.G.’s exclusion, however. An individual
against whom a Federal court has entered a judgment of conviction is considered
“convicted” for purposes of the Act “regardless of whether there is an appeal pending.”
Act § 1128(i)(1). If Petitioner succeeds in her appeal and the United States Court of
Appeals for the Third Circuit orders her conviction completely reversed or vacated, the
IG. is required to remove her exclusion retroactive to its effective date. 42 C.F.R.

§ 1001.3005(a)(1).

It is not disputed that the District Court entered a judgment of conviction against
Petitioner. Therefore, Petitioner was convicted within the meaning of the Act. Act

§ 1128(@)(1). Further, Petitioner was convicted of submitting false claims to the
Medicare or Medicaid programs and there is clearly a nexus between the crime of which
she was convicted and the delivery of a health care item or service pursuant to section
1128(a)(1) of the Act. Petitioner does not deny that her crimes were program-related
crimes and involved the delivery of a health care item or service. Accordingly, all three
elements of section 1128(a)(1) of the Act are met and there is a basis for Petitioner’s
exclusion.

4. Pursuant to section 1128(c)(3)(b) of the Act, the minimum period of
exclusion under section 1128(a) is five years.

5. Three aggravating factors justify extending the minimum period of
exclusion to eight years.

Ihave concluded that a basis exists to exclude Petitioner pursuant to section 1128(a)(1) of
the Act. Therefore, the I.G. must exclude Petitioner for a minimum period of five years.
Act § 1128(c)(3)(B). The I.G. has no discretion to impose a lesser period, and I may not
reduce the period of exclusion below five years. The remaining issue is whether it is
unreasonable for the I.G. to extend Petitioner’s period of exclusion by an additional three
years.

My determination of whether the exclusionary period in this case is unreasonable turns
on whether: (1) the I.G. has proven that there are aggravating factors; (2) Petitioner has
proven that there are mitigating factors the I.G. failed to consider or that the I.G.
considered an aggravating factor that does not exist; and (3) the period of exclusion is
within a reasonable range.

Petitioner does not dispute or challenge the presence of the three aggravating factors the
1G. relies on to support the three additional years of exclusion it seeks to impose upon
Petitioner, except to the extent she alleges that the criminal case against her was
unfounded and is subject to being reversed on appeal. P. Br. at 1. The aggravating
factors authorized by 42 C.F.R. § 1001.102(b) that are present in this case are:

e Petitioner committed acts that resulted in her conviction that caused a financial
loss to a government program of $5,000 or more. 42 C.F.R. § 1001.102(b)(1).
Petitioner does not dispute that the District Court ordered her to pay $253,196 in
restitution to the Medicare program, which is strong and unrebutted evidence that
the loss to Medicare was far more than $5,000. I.G. Ex. 4 at 6.

e Petitioner committed acts that resulted in her conviction over a period of more
than one year. 42 C.F.R. § 1001.102(b)(2). Petitioner was indicted for and
convicted of one count of conspiracy to commit health care fraud from “about
January 2005 through in or about December 2008.” I.G. Ex. 2 at 5; 1.G. Ex. 4 at 1.
Petitioner was also indicted for and convicted of committing seven counts of
aiding and abetting health care fraud that occurred between April 2007 and August
2008. 1.G. Ex. 2 at 15-17; I.G. Ex. 4 at 1-2. Therefore, Petitioner was convicted
of offenses that occurred over a period of more than one year.

e The District Court imposed a sentence of incarceration on Petitioner. 42 C.F.R.
§ 1001.102(b)(5). It is not disputed that the District Court sentenced Petitioner to
15 months of incarceration on each count of the conviction, to run concurrently.
IG. Ex. 4 at 3.

I conclude that there is no genuine dispute as to the existence of three aggravating factors
that permit the I.G. to extend Petitioner’s exclusion by three years beyond the five-year
minimum mandatory period, for a total minimum period of exclusion of eight years.

6. There is no genuine dispute of material fact as to the existence any
mitigating factor.

7. Exclusion for eight years is not unreasonable.

Petitioner does not allege and there is no evidence of any mitigating factors that the I.G.
failed to consider under 42 C.F.R. § 1001.102(c) that would cause me to reassess
Petitioner’s exclusion and impose a shorter period of exclusion. If the I.G. imposes a
period of exclusion beyond the five-year minimum mandatory period based on the
presence of aggravating factors, there are only three mitigating factors established by 42
C.F.R. § 1001.102(c) that I may consider to reduce the extended period of exclusion: (1)
whether the individual was convicted of three or fewer misdemeanor offenses coupled
with a financial loss of less than $1,500; (2) whether the individual was suffering from a
mental, emotional, or physical condition at the time of the offense that reduced his or her
culpability; or (3) whether the individual cooperated with federal or state officials
resulting in others being convicted or excluded, additional cases investigated or the
imposition against anyone of civil money penalties or assessments. 42 C.F.R.
§ 1001.102(c)(1)-(3).

Beyond challenging her convictions, Petitioner makes several arguments that may be
viewed as suggesting that she considers an eight-year exclusion unreasonable. Petitioner
asserts that she never submitted “a single bill to Medicare nor alter a single chart.” P. Br.
at 1. She states that neither her patients nor their family members ever complained about
her care. Finally, she argues that the District Court unfairly “overruled” a memorandum
in support of her motion for Judgment of Acquittal and also issued faulty jury
instructions. P. Br. at 1-2. None of these arguments relate to mitigating factors that I
may consider under the regulations.

The District Court recommended as part of the sentencing that Petitioner “be afforded the
opportunity to participate in a mental health treatment program while incarcerated.” I.G.
Ex. 4 at 3. This evidence does not show that there is a genuine dispute as to whether or
not the District Court determined that Petitioner had a mental or emotional condition
before or during her commission of the offenses of which she was convicted, that reduced
her culpability. Petitioner does not argue that the evidence, if considered in a light most
favorable to her, shows the existence of the mitigating factor authorized by 42 C.F.R.

§ 1001.102(c)(2).

I conclude that Petitioner has failed to raise any genuine dispute of material fact related to
the existence of any mitigating factor I am authorized to consider under the regulations.
Appellate panels of the Departmental Appeals Board (the Board) have made clear that the
role of the ALJ in cases such as this is to conduct a de novo review of the facts related to
the basis for the exclusion and the existence of aggravating and mitigating factors
identified at 42 C.F.R. § 1001.102 and to determine whether the period of exclusion
imposed by the I.G. falls within a reasonable range. Juan De Leon, Jr., DAB No. 2533 at
4-5 (2013); Craig Richard Wilder, M.D., DAB No. 2416 at 8 (2011); Joann Fletcher
Cash, DAB No. 1725 at 10,n.9 (2000). The applicable regulation specifies that the ALJ
must determine whether the length of exclusion imposed is “unreasonable.” 42 C.F.R.

§ 1001.2007(a)(1)(ii). The Board has explained that, in determining whether a period of
exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a
reasonable range.” Cash, DAB No. 1725 at 10, n.9. The Board cautions that whether the
ALJ thinks the period of exclusion too long or too short is not the issue. The ALJ may not
substitute his or her judgment for that of the I.G. and may only change the period of
exclusion in limited circumstances.

I conclude that there is a basis for the I.G. to exclude Petitioner and there is no dispute as
to the existence of the three aggravating factors that the I.G. relied on to impose an eight-
year exclusion. There is no genuine dispute as to the existence of any authorized
mitigating factors that would support a reduction of the period of Petitioner’s exclusion.
No basis exists for me to reassess the period of exclusion. I conclude that a period of
exclusion of eight years is in a reasonable range and not unreasonable considering the
three aggravating factors present.

III. Conclusion

For the foregoing reason, Petitioner is excluded from participation in Medicare,
Medicaid, and all federal health care programs for a minimum of eight years, effective
December 18, 2014.

/s/
Keith W. Sickendick
Administrative Law Judge