Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Eugene Rubach, M.D.,

(NPI: 1881692200),

Petitioner
Vv.

Centers for Medicare & Medicaid Services.
Docket No. C-10-270
Decision No. CR2125

Date: May 7, 2010

DECISION

I deny the motion of the Centers for Medicare and Medicaid Services (CMS) to dismiss
the hearing request of Petitioner, Eugene Rubach, M.D. I grant CMS’s motion for
summary judgment. Accordingly, the effective date of Petitioner’s enrollment as a
provider in the Medicare program remains May 15, 2009, and Petitioner’s right to bill for
Medicare services became effective on April 14, 2009.

I. Background
By letter dated May 29, 2009, Medicare contractor National Government Services, Inc.

(NGS) notified Petitioner that his Medicare enrollment application 8551 was approved,
effective April 14, 2009.' CMS Exhibit (Ex.) 5. Petitioner filed a request for

'CMS points out in its brief that Petitioner’s enrollment application was filed on May 14,
2009, which is therefore the actual effective date. CMS Br. at 9 n.2. Pursuant to 42
C.F.R. § 424.520(d), the date identified by NGS as the “effective” date (April 14, 2009)
is actually the date from which Petitioner may retroactively bill for services. Id.
reconsideration by letter dated August 14, 2009,” stating an earlier enrollment
application first submitted on January 11, 2009° was rejected only because Petitioner’s
office never received a fax from NGS requesting information necessary to complete the
application. CMS Ex. 6, at 2 (Reconsideration Request). Petitioner argues that as a
consequence, it submitted the additional information beyond the time frame given to
respond to NGS’s request and therefore the application was rejected. Jd. Petitioner
thereafter submitted another application with the necessary documentation, which was
processed to approval with an effective date of April 14, 2009, which is thirty days before
the date the second application was received. Jd.; CMS Ex. 7. Petitioner seeks an earlier
effective date based on the date when his first enrollment application was submitted to
NGS. Hearing Request (HR) at 2; CMS Ex. 6, at 3.

On October 12, 2009, the NGS hearing officer denied Petitioner’s request to change the
effective date, citing 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) as the basis of the
decision. CMS Ex. 7, at 1-2. Petitioner requested a hearing by submitting the same
letter, dated August 14, 2009, that he submitted to request reconsideration, together with
the reconsideration decision letter dated October 12, 2009, and the enrollment approval
letter dated May 29, 2009. See HR at 1-2; see also CMS Exs. 5, 7, and 8.

This case was assigned to Administrative Law Judge (ALJ) Alfonso J. Montajfio for
earing and decision on January 8, 2010, and an initial Order was issued at his direction.
On or about March 9, 2010, CMS filed a motion to dismiss Petitioner’s request for
earing, or, in the alternative, a motion for summary judgment, with CMS exhibits 1
through 8. This case was transferred to me for hearing and decision on April 7, 2010,
pursuant to 42 C.F.R. § 498.44. Petitioner submitted to me a letter, dated April 6, 2010,
addressed to CMS Chief Counsel, restating his arguments as to why the effective date
should be changed to reflect the date the first enrollment application was submitted.
Petitioner’s representative indicated by telephone on April 14, 2010 that this letter and its
attachments constitute Petitioner’s response to CMS’s motion. Petitioner submitted no
exhibits, and he did not object to CMS’s exhibits that are admitted as evidence.

IL. Issues, Findings of Fact, Conclusions of Law
A. Issues

The issues in this case are:

? It is noted in the reconsideration decision letter that the request for reconsideration was
untimely. Although CMS states this fact in its brief, CMS does not dispute jurisdiction
on this ground.

3 Tn its letter dated March 25, 2009, CMS states that it received Petitioner’s enrollment
application on January 12, 2009.
1. Whether Petitioner has a right to a hearing on the effective date of his
Medicare participation; and

2. Whether Petitioner is entitled to retroactive billing privileges earlier than
April 14, 2009.

B. Findings of fact and conclusions of law

1. The effective date of a Medicare provider agreement or supplier
approval is an appealable initial determination; thus, Petitioner has a
right to a hearing.

a. Standard of review

Pursuant to 42 C.F.R. § 498.70(b), I may dismiss a hearing request in the circumstance
where a party requesting a hearing “does not otherwise have a right to a hearing.”

b. Analysis
CMS argues that ——

[t]he Medicare Act only permits providers and suppliers to appeal from
“initial determination[s],” which are defined by regulation. While an initial
determination may include the denial of an enrollment application, CMS’s
or its contractor’s approval of a supplier’s enrollment application and
determination for the physician’s effective date for billing Medicare is not
an initial determination subject to appeal ....

CMS Br. at 10-11.

The regulations at 42 C.F.R. Part 498 that govern appeals procedures for determinations
affecting participation in Medicare (and certain Medicaid determinations) set out a list of
initial determinations by CMS that are subject to appeal and specify administrative
actions that are not subject to appeal under part 498. One of the initial determinations
listed as subject to appeal is as follows:

The effective date of a Medicare provider agreement or supplier approval.
42 C.F.R. § 498.3(b)(15). None of the administrative actions identified as not subject to

appeal under part 498 refers to the determination of an effective date for a provider or
supplier to participate in Medicare.
CMS argues that a supplier has no right to appeal enrollment applications that are
returned or rejected. CMS Br. at 5-6. However, that argument is irrelevant to this
appeal, because the Petitioner has requested a hearing for purposes of reviewing the
effective date of an approved enrollment application, not the return or rejection of an
application.

CMS further argues that “[t]he Medicare Act and applicable regulations limit a provider’s
or supplier’s appeal rights to denial of enrollment applications or revocations of billing
privileges.” CMS Br. at 12. Specifically, CMS argues that part 424, subpart P, grants
appeal rights only from denials and revocations of enrollment. 42 C.F.R. § 424.545(a).
Since an effective date appeal arises after an approval, rather than a denial or revocation,
CMS reasons that the regulations do not permit appeals of effective date determinations.

Part 424 unquestionably does grant appeal rights from denials and revocations, but it does
so by reference to the provisions of subpart A of part 498. In adopting section
498.3(b)(15), CMS recognized that approving participation at a date later than that sought
amounts to a denial of participation during the intervening time and generally involves
the same kind of compliance issues that arise from initial denials. 62 Fed. Reg. 43,931,
43,933 (Aug. 18, 1997); 57 Fed. Reg. 46,362, 46,363 (Oct. 8, 1992). The same reasoning
applies whether the denial of an earlier effective date results from a survey and
certification process or an enrollment process.

CMS next asserts that section 498.3(b)(15) was only intended to apply to providers and
suppliers subject to survey and certification requirements as a basis for determining their
participation. CMS Br. at 14-18. CMS further contends that the effective date of a
provider agreement or supplier approval is distinct from the effective date of billing
privileges, and that the latter is not made appealable by section 498.3(b)(15). CMS Br. at
15. In other words, CMS argues that section 498.3(b)(15) is inapplicable here.

ALJs who have considered this jurisdictional question have been divided in their
conclusions. In a number of recent cases, ALJs have concluded that the plain language of
section 498.3(b)(15) creates a right for any provider or supplier to challenge the effective
date of enrollment, that is, of a provider agreement or of supplier approval. Victor
Alvarez, M.D., DAB CR2070 (2010); Romeo Nillas, M.D., DAB CR2069 (2010); Jorge
M. Ballesteros, CNRA, DAB CR2067 (2010); Vincent Pirri, M.D., DAB CR2065 (2010).
On the other hand, one ALJ recently accepted CMS’s argument that the regulatory

history of section 498.3(b)(15) should be understood to restrict appeals of effective dates
to those suppliers and providers subject to survey and certification or accreditation.
Mikhail Paikin, DO, DAB CR2064 (2010).

In a 2007 case, the Departmental Appeals Board (Board) concluded that an ALJ erred in
holding that CMS had non-reviewable discretion on when to certify that a federally
qualified health center (FQHC) met participation requirements, because the addition of

section 498.3(b)(15) was intended to make existing appeal procedures available for
effective date determinations. Family Health Servs. of Darke County, DAB No. 2092, at
16-17 (2007) (citing 62 Fed. Reg. 43,931, at 43,934 (Aug. 18, 1997)). The Board also
noted that nothing in section 489.13(a)(2)(i) governing effective dates for FQHCs
“suggests an ALJ may not review CMS’s determination of an effective date... .” DAB
No. 2092, at 17 (emphasis in original). In that case, however, unlike the present one,
CMS did not assert that an effective date determination could not be challenged. See id.
The Board did not address the arguments CMS now makes and, since the case involved a
FQHC, it is not directly on point. I note, however, that CMS’s failure to make such a
claim in that case casts further doubt on the claim that CMS has had any consistent
interpretation of its regulations as precluding such challenges.

It is well-established, and not questioned by either party here, that both the Board and all
ALJs are bound by statute and regulations. Where a regulation speaks clearly on its face
and applies to the question before me, I am bound to follow it. ALJs who have found a
right to appeal the effective dates assigned to all suppliers and providers who are
accepted for enrollment in Medicare have relied on this principle. ALJ Kessel, for
example, states:

CMS would have me ignore the plain meaning of the regulation. It contends that
this regulation predates the Part 424 regulations and was intended to confer
hearing rights only in situations not covered under Part 424. That argument is
unpersuasive. The regulation is plain and unambiguous.

Andrew J. Elliott, M.D., DAB CR2103, at 3 (2010).

lagree. The wording of section 498.3(b)(15) is straightforward in providing that the
“effective date of a Medicare provider agreement or supplier approval” is an appealable
initial determination and includes no qualifying or limiting language.

Regulatory history and other sources of guidance are relevant in interpreting language
which is ambiguous or which is unclear in its application or which leaves gaps. CMS has
not identified in what respect the wording of section 498.3(b)(15) may be said to be
ambiguous or unclear or where the language leaves a gap requiring interpretation to give
it meaning. | thus find little room for interpretation.

Even reviewing the regulatory history on which CMS relies, however, I do not find any
clear indicator that section 498.3(b)(15) was intended at the time of its issuance to mean
anything other than what it states, or to restrict challenges to effective date determinations
as CMS now argues.

The provision that became section 498.3(b)(15) was first proposed in 1992 in a notice of
proposed rulemaking that aimed at doing two things: (1) establishing “uniform criteria
for determining the effective date of participation for all Medicare and Medicaid
providers and Medicare suppliers”; and (2) specifying that “those dissatisfied with a
decision on their effective date of participation under Medicare are entitled to a Medicare
hearing on the decision.” 57 Fed. Reg. at 46,362. There is no question that the uniform
criteria for establishing effective dates for provider agreements and supplier approvals
proposed in 1992 (and finalized in 1997) apply to those providers and suppliers subject to
survey and certification requirements (or accreditation by a CMS-approved accrediting
organization). The regulatory language explicitly states that the effective date of
agreement or approval criteria apply to “Medicare provider agreements with, and supplier
approval of, entities that, as a basis for participation in Medicare” are subject to CMS or
state agency survey and certification, or are deemed to meet requirements based on
accreditation, with two exceptions which apply only to community mental health centers,
FQHCs, or laboratories. 42 C.F.R. § 489.13.

This observation does not, however, necessarily mean that the appeal rights added to part
498 by the same rulemaking are limited to those providers and suppliers. The 1992
preamble indicates that the prior practice had been inconsistent about whether the date on
which a prospective provider or supplier was entitled to participate in Medicare was a
“proper subject for Medicare hearings.” 57 Fed. Reg. at 46,362-63. The rule was
intended to ensure that, when a provider or supplier is found not to meet conditions of
participation initially but later to meet requirements, the resulting effective date could be
appealed (even though participation was ultimately approved). Jd. (The provider or
supplier may not, however, argue that the initial survey should have been scheduled
sooner. 42 C.F.R. § 498.3(d)(15)). This discussion indicates that the drafters were
thinking of the type of providers and suppliers that then had appeal rights, but does not
indicate that they had an intention to restrict the scope of appeals by others who might be
granted Medicare hearings.

The 1997 preamble states that the final rule “makes clear that the rules for determination
of the effective date of a provider agreement or supplier approval apply to all providers
and suppliers that are subject to survey and certification . .. or have deemed status on the
basis of accreditation.” 62 Fed. Reg. at 43,934 (emphasis added). The 1997 preamble
further states that the final rule “[m]Jakes existing Medicare appeals procedures available,
and requires Medicaid agencies to make their existing appeals procedures available, for
effective date determinations.” Jd. Notably, the statement of the expansion of Medicare
and Medicaid hearings to include effective date determinations contains no parallel
limitation to those subject to survey and certification or accreditation.’ Furthermore, the
regulatory impact statement indicates that the drafters believed that court decisions had

* It is not possible to construe the limitation in the explanation of the scope of the
uniform effective determination rules to apply to the entire summary of the final rule’s
effect, because other clauses are clearly discussing the effects on other subsets of
providers (such as laboratories and community mental health centers).
already confirmed a right to appeal effective date determinations as analogous to denials
of participation, even though that right had not previously been codified in the
regulations. Jd. In addition, the preamble states that effective date hearings would, “for
the most part,” focus on noncompliance issues similar to those that arise in denial
appeals, but does not state that such appeals could only arise in that context. Id. I
conclude that nothing in the regulatory history of the addition of section 498.3(b)(15)
demonstrates an intent to restrict challenges to effective date determination to a subset of
providers and suppliers, as opposed to all providers and suppliers that then had appeal
rights.

CMS also contends that the fact that section 498.3(b)(15) was adopted long before
section 936(a)(2) of the Medicare Prescription Drug, Improvement, and Modernization
Act of 2003, codified at 42 U.S.C. § 1395cc(j), required the Secretary to establish an
appeals process from the denial of applications for enrollment should suffice to
demonstrate that it was not intended to affect those appeal rights. CMS Br. at 14-15.
This argument is not persuasive. A later statute does not elucidate the intended meaning
of a prior regulation. The regulation on its face grants appeal rights to challenge effective
date determinations of provider agreements and supplier approvals generally. The
question is not whether the drafters at the time contemplated granting such rights to
suppliers and providers who were not then covered by the effective date determination
criteria applicable to those requiring survey and certification or accreditation. The
question is whether, despite the plain language, the drafters actually intended to
affirmatively exclude other providers and suppliers who might later gain appeal rights
from challenging their effective date determinations. As discussed above, the 1992 and
1997 preambles do not reflect any such intention.

In fact, the long lag between the addition of effective date determinations to the list of
appealable initial determinations and the creation of an appeals process for denials of
enrollment applications cuts the other way. By the time that CMS adopted 42 C.F.R. Part
424, Subpart P, setting out enrollment requirements as a condition for participation in
Medicare, CMS was well aware of the longstanding provision granting “appeal rights and
procedures for entities dissatisfied with effective date determinations.” 62 Fed. Reg. at
43,931-32. Yet, CMS provided that a prospective provider or supplier whose enrollment
is denied or revoked “may appeal CMS’ decision in accordance with part 498, subpart A
of this chapter.” 42 C.F.R. § 424.545(a). Section 498(b)(15) is part of subpart A of part
498, yet CMS did not exclude section 498(b)(15) or otherwise indicate that the effective
date determination would not be a proper subject for these Medicare hearings. Hence, the
plain language of section 424.545(a) reinforces the plain language of section
498.3(b)(15).

To the extent that CMS is suggesting that an ambiguity arises from the term “supplier
approval” referenced in section 498.3(b)(15), I am not persuaded that the language of
section 498.3(b)(15) bears a reading that excludes approval after submission of an
enrollment application rather than after a survey or deeming of an accredited supplier, or
by CMS’s assertion that it should be read to refer only to the language of section 489.13.
CMS Br. at 15-16. Section 489.13 applies to the determination of the effective date of
provider agreements, and the “supplier approval of entities that, as a basis for
participation in Medicare” are subject to survey and certification or accreditation. This
argument is circular, since section 489.13 merely codifies the provisions for uniform
effective date determinations for all providers and suppliers subject to survey and
certification or accreditation, which were adopted as part of the 1997 rulemaking. 62
Fed. Reg. at 43,931. Section 489.13 is not the only provision for approval of suppliers to
participate in Medicare. Approval is defined in section 424.502 as meaning the
determination that the supplier is “eligible under Medicare rules and regulations to
receive a Medicare billing number and be granted Medicare billing privileges.”*> The
effective date of such approval for suppliers not requiring survey and certification or
accreditation is governed by sections 42 C.F.R. § 424.520(c) and (d). Importantly,
section 498.3(b)(15) does not state that appealable initial determinations are limited to the
effective dates of provider agreements and supplier approvals under section 489.13.

lam thus bound to follow the regulations in permitting an appeal by any provider or

supplier dissatisfied with a determination as to the effective date of its provider

agreement or supplier approval.

Based on the foregoing, I deny CMS’s motion to dismiss.

I note, however, that a right to challenge the effective date is not a license to seek an

effective date other than that prescribed by law. I turn next, therefore, to what the

applicable law provides as to the proper effective date in Petitioner’s circumstances.

2. The effective date of Petitioner’s participation in Medicare was

properly determined under 42 C.F.R. § 424.520(d); thus, Petitioner
cannot be granted earlier retroactive billing privileges.

a. Standard of review

The Board stated the standard of review for summary judgment as follows:

> CMS suggests that I should disregard this definition of supplier approval, because the
definitions in 42 C.F.R. § 424.502 are those “used in this subpart unless the context
indicates otherwise... .” CMS Br. at 16, n.6. It is in the same subpart, however, that the
regulations grant appeal rights under part 498 to providers and suppliers whose
enrollment is denied. 42 C.F.R. § 424.545. Therefore, the definition of approval
applicable to those appeals would be the one at 42 C.F.R. § 424.502.
Summary judgment is appropriate when the record shows that there is no
genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. Kingsville Nursing and Rehabilitation Center,
DAB No. 2234, at 3 (2009), citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-25 (1986). While the Federal Rules of Civil Procedure (FRCP) are not
binding in this administrative appeal, we are guided by those rules and by
judicial decisions on summary judgment in determining whether the ALJ
properly granted summary judgment. See Thelma Walley, DAB No. 1367
(1992) .... The party moving for summary judgment bears the initial
burden of showing that there are no genuine issues of material fact for trial
and that it is entitled to judgment as a matter of law. Kingsville at 3, citing
Celotex, 477 U.S. at 323. If the moving party carries its initial burden, the
non-moving party must “come forward with ‘specific facts showing that
there is a genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986) (quoting FRCP 56(e)). To defeat an
adequately supported summary judgment motion, the non-moving party
may not rely on the denials in its pleadings or briefs, but must furnish
evidence of a dispute concerning a material fact — a fact that, if proven,
would affect the outcome of the case under governing law. Jd. at 586, n.11;
Celotex, 477 U.S. at 322. In determining whether there are genuine issues
of material fact for trial, the reviewer must view the evidence in the light
most favorable to the non-moving party, drawing all reasonable inferences
in that party’s favor. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010). The role of an ALJ in
deciding a summary judgment motion differs from the ALJ’s role in resolving a case after
a hearing. The ALJ should not be assessing credibility or evaluating the weight of
conflicting evidence. Holy Cross Village at Notre Dame, DAB No. 2291, at 4-5 (2009).

b. Analysis

The determination of the effective date of Medicare billing privileges here is governed by
42 C.F.R. § 424.520, which reads, in pertinent part:

(d) Physicians, nonphysician practitioners, and physician and
nonphysician practitioner organizations. The effective date for billing
privileges for physician, nonphysician practitioners, and physician and
nonphysician practitioner organizations is the later of the date of filing of a
Medicare enrollment application that was subsequently approved by a
Medicare contractor or the date an enrolled physician or nonphysician
practitioner first began furnishing services at a new practice location.

10

(Emphasis added). The “date of filing” is the date that the Medicare contractor receives a
signed provider enrollment application that the Medicare contractor is able to process to
approval. 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008) (emphasis added).

Petitioner does not dispute the fact that the application that was submitted on or about
January 12, 2009 was not approvable as submitted or that additional information was in
fact required. Because it is undisputed that that application could not be processed to
approval as submitted, there is no legal basis to use the date of filing that application to
determine the effective date.

Petitioner argues:

... [was informed this application was rejected out because our office did
not respond to a fax on February 23, 2009 requesting verification of an
address change. Unfortunately, we never received the fax, therefore we
were unaware of the information your office required to complete the
application. Our office is extremely efficient and timely, especially when a
request for information of extreme importance is involved. We have
submitted numerous applications for many physicians and they have been
completed promptly and efficiently.

CMS Ex. 8, at 1. That statement implies that if Petitioner had received the fax, he would
have timely responded to the request just as his office has in the past. That argument is
purely speculative. Essentially, Petitioner is arguing that the original application should
not have been rejected.

The rejection of an enrollment application is governed by 42 C.F.R. § 424.525, which
reads:

§ 424.525 Rejection of a provider or supplier’s enrollment application
for Medicare enrollment.

(a) Reasons for rejection. CMS may reject a provider or supplier's
enrollment application for the following reasons:

(1) The prospective provider or supplier fails to furnish complete
information on the provider/supplier enrollment application within 30
calendar days from the date of the contractor request for the missing
information.

(2) The prospective provider or supplier fails to furnish all required
supporting documentation within 30 calendar days of submitting the
enrollment application.

11

(b) Extension of 30-day period. CMS, at its discretion, may choose to
extend the 30 day period if CMS determines that the prospective provider
or supplier is actively working with CMS to resolve any outstanding issues.

(c) Resubmission after rejection. To enroll in Medicare and obtain
Medicare billing privileges after notification of a rejected enrollment
application, the provider or supplier must complete and submit a new
enrollment application and submit all supporting documentation for CMS
review and approval.

(d) Additional review. Enrollment applications that are rejected are not

afforded appeal rights.

(Emphasis added). Petitioner thus has no appeal right from the rejection and was
required to submit a new application.

In any case, I find no merit to Petitioner’s argument that the contractor should have
followed up by telephone when Petitioner did not respond to a faxed request for
additional information. Section 5.3A of chapter 10 of the Medicare Program Integrity
Manual (MPIM) reads, in pertinent part:

Commencement of Timeframe — For information requests under 42 CFR
§424.525(a)(1), the 30-day clock described above commences when the
contractor mails, faxes, or e-mails the letter.

(Emphasis added). In regard to whether a fax alone is sufficient notification to the
provider of the information request, section 3.1 of chapter 10 of the MPIM reads, in
pertinent part:

If the provider: (1) files an application with at least one missing required
data element, or (2) fails to submit all required supporting documentation,
the contractor shall send a letter to the provider — preferably via e-mail or
fax — that contains, at a minimum, the elements listed below. . ..

+ A list of all missing data or documentation . . ..

(Emphasis added).

The contractor’s letter rejecting Petitioner’s January 12, 2009 application states that the
additional information required was requested on February 23, 2009. CMS Ex. 3. CMS
alleges and the Petitioner has not disproved that the information request was faxed on that
date. Although Petitioner alleges that he never received the fax, he makes no claim that
the first application was approved or was approvable. As noted, there is no right to
appeal from the rejection of that first application. I must apply the regulations and
guidelines as stated in determining the legally required effective date for the approved
application. Because Petitioner’s application submitted on January 12, 2009 was not
12

subsequently approved, the date that application was submitted cannot be used for
purposes of determining the effective date. See 42 C.F.R. § 424.520(d).

It is undisputed that the application that was subsequently approved was received by
NGS on May 15, 2009. Pursuant to 42 C.F.R. § 424.520(d), the May 15, 2009
application must be used for purposes of determining the effective date. Therefore, NGS
was correct in so using it.

CMS regulations permit certain suppliers, including physicians, to bill retroactively for
certain services provided before approval if they have met all program requirements.
Current regulations, which were in effect at the time of Petitioner’s approval for
participation in Medicare, limit retroactive billing to 30 days prior to the effective date “if
circumstances precluded enrollment in advance of providing services to Medicare
beneficiaries” or 90 days in certain disaster situations. 42 C.F.R. § 424.521(a). This
billing period is retroactive from the effective date of their approval. It follows that
section 498.3(b)(15) does not provide for challenges to the period for retroactive billing
beyond an appeal that the effective date of approval itself was wrongly determined.

Thus, I have no authority to extend the retroactive billing period for Petitioner.

In conclusion, the earliest effective date was properly determined to be May 15, 2009.
See 42 C.F.R. § 424.520(d). Thus, Petitioner’s request for retroactive billing privileges
earlier than April 14, 2009 must be denied. See 42 C.F.R. 424.521(a).

Because there is no genuine issue to any material fact, and for the foregoing reasons,
CMS’s motion for summary judgment is granted.

/s/
Leslie A. Sussan
Board Member


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Premier Diagnostic Imaging, Inc.,
(NPI: 1750533469)

Petitioner
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-99
Decision No. CR2123

Date: April 26, 2010

DECISION

I grant summary judgment to the Centers for Medicare and Medicaid Services (CMS),
sustaining its determination and that of its contractor, Wisconsin Physicians Service
(WPS), to enroll Petitioner, Premier Diagnostic Imaging, Inc., in the Medicare program
with an effective date of participation of April 28, 2009.

I. Background

Petitioner is a supplier of portable X-ray services in the greater Plymouth, Minnesota
area. On October 14, 2008, Petitioner submitted its Medicare enrollment application to
WPS, requesting that the facility be certified as a supplier of portable X-ray services
under the Medicare program. CMS Ex. 11. By correspondence dated January 20, 2009,
January 26, 2009, and March 30, 2009, Petitioner requested it be granted an exception to
the CMS policy that surveys of existing Medicare providers and suppliers are given
priority over initial Medicare certification surveys. CMS Exs. 3- 4. On April 16, 2009,
CMS granted Petitioner’s request for a priority exception. CMS Ex. 5. Subsequently, on
April 28, 2009, the Minnesota Department of Health (state agency) completed
Petitioner’s initial Medicare certification survey, finding Petitioner in compliance with all
applicable federal conditions, and recommended to CMS that the facility be certified as
of that date. CMS Exs. 1, 12. By letter dated June 3, 2009, CMS notified Petitioner that
the effective date of its Medicare participation was April 28, 2009, the date the state
agency surveyed Petitioner. CMS Ex. 6.

By letter dated October 24, 2009, Petitioner requested a hearing. Petitioner asserted that
the effective date of its participation should be moved to October 14, 2008, the date of the
enrollment application, arguing that Petitioner has long been in compliance with state and
federal regulations and had not altered the high quality service provided from its
inception through the time the state agency certified compliance. Jd. Petitioner
contended that circumstances beyond Petitioner’s control, but within CMS’s or the state
agency’s control, unreasonably delayed the survey and certification process. Jd.

The case was initially assigned to Administrative Law Judge (ALJ) Alfonso J. Montajfio.
However, the case was transferred to me for a hearing and a decision pursuant to 42
C.F.R. § 498.44, which permits a Board Member to be designated to hear appeals taken
under Part 498, which governs this appeal.

On January 11, 2010, CMS filed a Joint Notice of Issues for Summary Disposition (Joint
Notice). On February 25, 2010, CMS filed a motion for summary disposition (CMS Br.)
accompanied by fifteen proposed exhibits, which it identified as CMS Ex. 1 —- CMS Ex.
15. Petitioner submitted a response brief (P. Br.) on April 12, 2010, accompanied by two
proposed exhibits, which it identified as Premier Ex. 1 and Premier Ex. 2. I admit these
exhibits to the record of the case.

IL. Issues

The issues in this case are:

1. Whether summary judgment is appropriate;

2. Whether CMS properly determined, as a matter of law, Petitioner’s effective
date of participation in Medicare to be April 28, 2009; and

3. Whether I have authority to find 42 C.F.R. § 489.13(b) invalid or
unconstitutional.

II. Discussion and conclusions of law

I make conclusions of law to support my decision in this case. I set forth each conclusion
below as a separate heading.
I. The case can be decided on CMS’s motion for summary disposition.

In Senior Rehabilitation and Skilled Nursing Center, DAB No. 2300 (2010), the
Departmental Appeals Board (Board) recently reiterated the standards for summary
judgment as follows:

Summary judgment is appropriate when the record shows that there is no genuine
issue as to any material fact, and the moving party is entitled to judgment as a
matter of law. Kingsville Nursing and Rehabilitation Center, DAB No. 2234, at 3
(2009), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986). While the
Federal Rules of Civil Procedure (FRCP) are not binding in this administrative
appeal, we are guided by those rules and by judicial decisions on summary
judgment in determining whether the ALJ properly granted summary judgment.
See Thelma Walley, DAB No. 1367 (1992) .... The party moving for summary
judgment bears the initial burden of showing that there are no genuine issues of
material fact for trial and that it is entitled to judgment as a matter of law.
Kingsville at 3, citing Celotex, 477 U.S. at 323. If the moving party carries its
initial burden, the non-moving party must “come forward with ‘specific facts
showing that there is a genuine issue for trial.” Matsushita Elec. Industrial Co. v.
Zenith Radio, 475 U.S. 574, 587 (1986) (quoting FRCP 56(e)). To defeat an
adequately supported summary judgment motion, the non-moving party may not
rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute
concerning a material fact - - a fact that, if proven, would affect the outcome of the
case under governing law. /d. at 586 n.11; Celotex, 477 U.S. at 322. In
determining whether there are genuine issues of material fact for trial, the reviewer
must view the evidence in the light most favorable to the non-moving party,
drawing all reasonable inferences in that party’s favor. U.S. v. Diebold, Inc., 369
U.S. 654, 655 (1962).

Senior Rehab., DAB No. 2300, at 3. The Board has also noted that the role of an ALJ in
deciding a summary judgment motion differs from the ALJ’s role in resolving a case after
a hearing. The ALJ should not be assessing credibility or evaluating the weight of
conflicting evidence when resolving a summary judgment motion. Holy Cross Village at
Notre Dame, DAB No. 2291, at 4-5 (2009).

The following material facts are not in dispute’:
On October 14, 2008, Petitioner submitted its Medicare enrollment application to WPS.

CMS Ex. 11. On November 3, 2008, WPS recommended approval of Petitioner’s
application to the state agency, which then needed to arrange for a survey of Petitioner.

' These facts are drawn from CMS’s Brief at pages 6-9, which Petitioner adopts as having
“fairly and accurately synopsized the timeline from Premier’s application to enrollment.”
P. Br. at 3. The exhibits are cited where relevant.
CMS Ex. 2. For a number of reasons, including limited resources and an increase in
prospective providers, CMS directed states to prioritize certain investigations over initial
surveys of prospective providers and suppliers. CMS Ex. 14. However, for suppliers in
certain unique circumstances, CMS provided a process where these suppliers could
request an exception in their priority assignment. Jd. Petitioner requested such an
exception by letter and email correspondence dated January 20, 2009, January 26, 2009,
and March 30, 2009. CMS Exs. 3, 4.

On April 16, 2009, CMS notified Petitioner that it granted its request for a priority
exception, noting that it authorized the state agency to place Petitioner in the queue for an
initial survey, “contingent upon the accomplishment of the required recertification
workload.” CMS Ex. 5. On April 28, 2009, the state agency conducted a survey of the
institution to determine whether it was in compliance with Medicare participation
requirements for suppliers of portable X-ray services. CMS Ex. 12. The state agency
found that Petitioner met all requirements for Medicare participation on the date of the
survey, specifically finding that Petitioner was in compliance with 42 C.F.R. Part 486,
Subpart C, the conditions for coverage for suppliers of portable X-ray services. CMS
Exs. 1, 12.

On June 3, 2009, CMS notified Petitioner that its request to be a Medicare supplier of
portable X-ray services was approved and that the effective date of participation was
April 28, 2009. CMS Ex. 6. On June 15, 2009, WPS notified Petitioner that its Medicare
enrollment application was approved with the effective date of participation beginning
April 28, 2009. CMS Ex. 7. By letter dated July 1, 2009, Petitioner requested that CMS
reconsider its initial determination and change the effective date to October 14, 2008.
CMS Ex. 8. On August 24, 2009, CMS affirmed its prior determination, finding that the
effective date could be no earlier than April 28, 2009. CMS Ex. 9.

For purposes of summary judgment, I also accept as true Petitioner’s assertion that access
to radiology and X-ray services was severely limited in and around rural Minnesota, and
that Petitioner’s mobile services, provided 24 hours per day, seven days per week, would
directly address this problem. P. Br. at 3-4. CMS indeed found, in deciding to grant
priority to scheduling a survey of Petitioner, that “beneficiaries in Hennepin County area
would suffer serious, adverse health care access consequences should this portable X-ray
facility not become Medicare certified.” P. Br. at 3 (citing CMS Ex. 5, at 2). Lalso
accept Petitioner’s assertion that it suffered a substantial financial burden as a result of
the six months from Petitioner’s application for Medicare enrollment (and four months
from the time it requested expedited priority exception status) before the survey was
completed that found Petitioner in compliance. P. Br. at 4. Although Petitioner asserted
that it sought a hearing “to develop the factual record in support of its legal position
stated herein,” Petitioner stated that its hearing exhibits would consist only of those I
have already admitted. /d. at 1. Petitioner identified no witnesses it would present
beyond the affidavit of Ms. Kim S. Algoo, Petitioner’s Chief Executive Officer, which I
have also admitted.
Petitioner’s witness attested that CMS Exhibits 1 through 13 are accurate copies of
documentation of Petitioner’s efforts to seek certification. Premier Ex. 1, at 2. Petitioner
does not object to, or challenge, the authenticity of CMS Exhibits 14 and 15, although
Petitioner’s witness states that she cannot personally attest to their accuracy (CMS
Exhibits 14 and 15 are CMS policy guidance documents). Jd. CMS proffered no
witnesses and did not seek to cross-examine Ms. Algoo.

Petitioner argues that the regulations need not, and should not, be applied in a manner
that results in delaying its billing privileges until April 28, 2009. P. Br. at 4-8. This
argument goes, however, to the construction and application of the law. Petitioner has
not identified any genuine dispute of material fact. Therefore, I conclude that summary
judgment is appropriate.

2. CMS properly determined Petitioner’s effective date of participation to be
April 28, 2009.

The regulation governing the effective date of participation in Medicare of a portable X-
ray supplier, such as Petitioner, states: “[t]he agreement or approval is effective on the
date the survey . . . is completed, if on that date the provider or supplier meets all
applicable Federal requirements as set forth in this chapter.” 42 C.F.R. § 489.13(b).
Petitioner argues that CMS “misconstrues 42 C.F.R. § 489.13(b) to constitute a ban that
prevents state survey agencies from finding a date of compliance with federal
requirements, which is earlier than the last day of the survey.” P. Br. at 4. First,
Petitioner suggests that certain CMS guidance indicates that the effective date should
instead be “the date of actual compliance.” P. Br. at 4 (emphasis in original) (citing
CMS Ex. 15, at 13 (Excerpt from CMS’s State Operations Manual (SOM))). Petitioner
contends that this guidance supports an effective date in October 2008, because surveyors
reviewed Petitioner’s patient data from October 2008 and noted an inspection in October
2008. Second, Petitioner emphasizes that CMS agreed that its survey was entitled to
priority status, apparently contending that it should have been surveyed more quickly
and, hence, presumably obtained an earlier effective date. I explain below why I do not
find either argument persuasive.

In addition, Petitioner makes arguments that section 489.13(b) conflicts with federal
statutes or violates the United States Constitution. Petitioner expressly recognizes that I
do not have authority “to ignore unambiguous regulations” on this basis, but presses them
before me to comply with the requirement for exhaustion of administrative remedies and
thus preserve the arguments on appeal. P. Br. at 2.
a. Section 489.13(b) does not permit an effective date earlier than the
last day of the survey finding compliance.

The language of the applicable regulation at 42 C.F.R. § 489.13(b) is unambiguous and
specifically requires that, for a supplier of portable X-ray services, the survey finding
compliance with all applicable requirements is a condition precedent to an effective date.
The earliest date that a supplier, such as Petitioner, can be approved is the date that the
survey is completed.

In support of its argument that the regulation can be read to permit an earlier date,
Petitioner points to the following statement in the SOM: “[a] . . . supplier cannot begin to
have its services covered and reimbursed by Medicare until the date on which it is found,
via the certification process, to be in compliance with all federal requirements, including
compliance with . . . the [conditions for coverage] if it is a supplier... .” P. Br. at 4
(citing CMS Ex. 15, at 13). Petitioner suggests that this statement implies a “more
lenient” view that a supplier may be paid for services once it actually achieves
compliance, even if no survey confirming that has been completed yet. This suggestion
is not supported by the wording of the statement, which dictates that a supplier cannot
begin to have services paid before it is in compliance with all applicable conditions.
Nothing in the statement suggests that a supplier is entitled to have all services paid from
the date it first achieves compliance, contrary to the explicit requirement that coverage
does not begin until the survey verifying compliance is completed. Moreover, the SOM
specifically states that the supplier must be found to be in compliance thru the
certification process, which is the survey, before the supplier may be paid for any
services.

Furthermore, the SOM goes on to warn that because “‘it usually is impossible to schedule
and complete a survey, i.e., ascertain actual compliance with all applicable requirements,
on the date a new institution opens its doors[,] [t]he institution generally must operate for
a short initial period without Medicare payment for its services.” CMS Ex. 15, at 14.
This explanation should have put Petitioner on notice that services provided prior to the
completion of the survey would not be covered. Petitioner argues that six months is too
long to be described as a “short initial delay.” P. Br. at 6. While I recognize that the
timing of the survey created difficulties for Petitioner, I cannot remedy those difficulties
by ignoring the plain language of the regulation.

Petitioner, however, argues that the form reporting the results of its survey “contains not
one but two inspection dates.” P. Br. at 5 (emphasis in original). In addition to the entry
of “4-28-09” as “date surveyed,” Petitioner points to an entry of “10-08” as “Date of Last
Inspection.” Jd. (citing CMS Ex. 12, at 1, 10). Petitioner suggests that I apply the
regulation by concluding that the state survey agency therefore found that Petitioner “met
all applicable federal requirements on the earliest date identified by [the state survey
agency] on the Form 1882, which is October 2008.” P. Br. at 7. The short answer is that
the regulation does not provide for an effective date on the earliest date on which an
inspection took place or on which applicable requirements were met but on the “date the
survey ... is completed,” if the applicable requirements were met on that date. 42 C.F.R.
§ 489.13(b). The documents establish, and Petitioner does not dispute, that the initial
certification survey was completed on April 28, 2009. See, e.g., CMS Exs. 1, 12.”

Petitioner also contends, however, that the surveyors found that Petitioner was actually in
compliance as of October 2008 because they reviewed data from October 2008. P. Br. at
4-5. Inher affidavit, Kim S. Algoo asserts (and I accept as true for these purposes) that
she is familiar with the survey conducted on April 28, 2009 and that the surveyors
“requested patient information and files dating back to [Petitioner’s] first day of service,
October 27, 2008, . . . in addition to the material [she] had previously provided... .”
Premier Ex. 1, at 2. A compliance evaluation may logically require a review of records
for prior services performed since the standards being evaluated include, for example,
referrals for service and preservation of records (section 486.106). As with the
equipment inspection standards, however, the record review addresses only some, but not
all, of the standards which must be found to be met for the surveyors to conclude that
compliance has been achieved.

It is true, as Petitioner argues, that a supplier must start operations prior to a survey to
generate patient files to be reviewed for compliance. P. Br. at 9. As noted above, CMS
recognized that the result is an interlude in which services are provided but are not
eligible for payment.

Moreover, Ms. Algoo’s affidavit only establishes that some of the records reviewed dated
back as far as October 27, 2008. Ms. Algoo does not suggest that the surveyors
concluded that Petitioner was in compliance based solely on the records from October
2008. On the contrary, she implies that they requested other, presumably more recent,
information. I cannot therefore conclude that Petitioner was found in actual compliance
as of October 2008. All that it is possible to conclude is that Petitioner was found to be in
compliance as of April 28, 2009, when the surveyors completed their review of all the
documentation and found that all the conditions were met.

I conclude that, even viewing the facts in the light most favorable to Petitioner, the
regulations mandate the effective date of participation as April 28, 2009, the date
Petitioner’s successful survey was completed.

> The “date of last inspection” recorded on the survey report form is entered in relation to
evaluating whether Petitioner met the requirements in 42 C.F.R. § 486.110 that its
equipment be inspected every 24 months by a qualified radiation health specialist. CMS
Ex. 12, at 9-10. This inspection relates to only one of the conditions that had to be met
for the initial certification survey to find that Petitioner was in compliance.
b. The state agency’s finding that Petitioner was entitled to priority
exception status for its survey does not entitle Petitioner to a
different effective date.

As mentioned above, it is undisputed that CMS granted Petitioner priority exception
status and authorized the state agency to place Petitioner in their queue for an initial
survey. CMS Ex. 5. In its hearing request Petitioner argues that denying Petitioner an
earlier effective date undermines its priority exception status. P. Br. at 4.

The issue of what priority to accord to Petitioner’s survey arose from a memorandum
from CMS to state survey agencies in November 2007 regarding how to prioritize work
in light of budget limitations. CMS Ex. 14. Overall, the first priority was to go to
statutorily mandated surveys of existing providers, lower priority to investigations and
recertifications of existing providers, and the lowest priority to most initial surveys of
new suppliers. CMS Br. at 5; CMS Ex. 14, at 2-3, 6-9. The memorandum provides a
process for suppliers to seek exceptions or receive higher priority due to various
situations. CMS Br. at 5-6; CMS Ex. 14, at 3-4, 8. Newly-applying suppliers may be
approved on an exception basis by the CMS Regional Office “due to serious health care
access considerations or similar special circumstances... .” CMS Ex. 14, at 8.
Petitioner sought such an exception by letters dated January 20, 2009 and January 26,
2009, supplemented by an email dated March 30, 2009. Premier Ex. 2; CMS Exs. 3 and
4. By letter dated April 16, 2009, CMS granted Petitioner’s request based on the access
to care issues and authorized the state survey agency to place Petitioner “in their queue
for an initial survey,” while noting that completion of the survey would still “be
contingent on the accomplishment of the required recertification workload.” CMS Ex. 5,
at 2.

The effect of granting Petitioner priority exception status was thus to permit it to be
surveyed before other suppliers seeking initial enrollment who did not possess such
special circumstances. Prioritizing the survey offered some benefit to Petitioner by
causing the survey to be completed at a date earlier than it might otherwise have been, so
that an earlier effective date would result from the application of section 489.13(b).
Petitioner points to nothing, however, that indicates that this status entitled it to an earlier
effective date than that mandated by section 489.13(b). To the extent that Petitioner’s
real complaint is that the survey was not conducted even sooner, I note that section
498.3(d) specifically provides that “[a] decision by the State survey agency as to when to
conduct an initial survey of a prospective provider or supplier” is an administrative action
that is not an initial determination and not subject to appeal.

I conclude that, even viewing the facts in the light most favorable to Petitioner, its
priority exception status does not permit an effective date of participation earlier than
April 28, 2009.
3. Ido not have authority to find 42 C.F.R. § 489.13(b) invalid or
unconstitutional.

Petitioner asserts that 42 C.F.R. § 489.13(b) as applied violates the Equal Access
Provision of the Medicaid Act, 42 U.S.C. § 1396a. Petitioner asserts that its effective
date of Medicare enrollment governs the effective date for Medicaid participation, so that
setting Petitioner’s effective date of enrollment to the date its survey was completed
provides an additional financial burden on Petitioner and results in a serious lack of
access to services to Medicaid patients in violation of the statute. Premier Ex. 1; P. Br. at
7-8 (citing CMS Ex. 5). Petitioner argues that “[r]egulations must be construed and
applied in a manner that [does] not conflict with governing federal statutory laws,” so
that here a Medicare regulation should not be interpreted to thwart the statutory
requirement to provide Medicaid patients with access to care. P. Br. at 8.

Section 489.13(b) is unambiguous in its provision of the relevant effective date.
Therefore, it is not subject to interpretation but applies here by its plain terms. As
Petitioner recognizes, it is not within my bailiwick to strike down an applicable federal
regulation based on a claim that conflicts with a federal statute.

In any case, it does not appear to me that Petitioner has shown that section 489.13(b) as
written or applied is in conflict with the Medicaid law. The cited statute provides that
care and services shall be available to Medicaid beneficiaries “at least to the extent that
such care and services are available to the general population in the geographic area.” 42
U.S.C. § 1396a. While CMS agreed that Medicare beneficiaries would suffer adverse
access consequences if Petitioner did not become Medicare certified, Petitioner has not
made a showing about the extent of access to portable X-ray services by Medicaid
beneficiaries or by the general population in the Hennepin County area to which CMS
referred. See CMS Ex. 5, at 2. Although Petitioner stressed that its financial losses
included $6,698.95 in unpaid Medicaid services, in addition to $40,760.03 in unpaid
Medicare services, Petitioner has not shown that the statute is intended to guarantee the
financial status of suppliers, or that these losses would result in Petitioner not providing
portable X-ray services in the future. See P. Br. at 7; Premier Ex. 1, at 3.

Turning to Petitioner’s constitutional arguments, it is “well established that
administrative forums, such as [the] Board and the Department’s ALJs, do not have the
authority to ignore unambiguous statutes or regulations on the basis that they are
unconstitutional.” Sentinel Med. Labs., Inc., DAB No. 1762, at 9 (2001), aff'd,
Teitelbaum v. Health Care Fin. Admin., 32 F. App’x 865 (9th Cir. 2002). As previously
discussed, the regulation is unambiguous in language and clear in application. I therefore
am without authority to ignore the applicable regulation.

Petitioner contends that requiring it to begin operations and provide services before a
survey can find compliance effects an unjust taking of its property in the form of
uncompensated care. P. Br. at 9-10. The Board has previously noted that “[c]ourts that
10

have considered the issue have almost without exception concluded that a physician or
other health care practitioner or entity does not have a protected interest in continuing
eligibility for Medicare participation or reimbursement.” Robert F. Tzeng, M.D., DAB
No. 2169, at 13-14 n.16 (2009) (citations omitted). Petitioner claims that this regulation
interfered with “distinct investment-backed expectations,” but does not explain how such
expectations could reasonably have been formed in light of the notice provided by the
regulation of how the effective date would be calculated (and the warnings in the SOM
about the lag between opening services and obtaining a survey).

Petitioner also contends that section 489.13(b) denies it equal protection without any
rational basis in that categories of suppliers that have recognized accrediting bodies can
obtain retroactive effective dates. P. Br. at 12. Providers and suppliers that are already
accredited by a national organization that CMS approved, such that its accreditation is
deemed to constitute compliance with all federal requirements, are given effective dates
when they initially request participation in Medicare (for those that must meet additional
requirements, the effective date is when they meet those additional requirements). 42
C.F.R. § 489.13(d)(1). Section 489.13(d)(2) allows retroactive effective dates of up to
one year to encompass dates when services were provided but not paid for those
providers and suppliers. Petitioner argues that this distinction is irrational, because state
survey agencies could evaluate past compliance with federal standards when they
surveyed nonaccredited suppliers like Petitioner. Again, I could not strike down section
489.13(b) based on this constitutional argument, but I also find it difficult to see why it
would be irrational for CMS to give weight to accreditation by organizations it has
already approved but not choose to require state survey agencies to attempt to determine
whether other applicants were in compliance at some date earlier than the initial survey.

Through each of Petitioner’s arguments runs essentially the same theme -- that its
enrollment date should be set at an earlier date based on equitable principles. However
sympathetic I may find that theme, I have no authority to resort to equitable principles to
establish an effective date earlier than that contemplated by section 489.13(b). See US
Ultrasound, DAB No. 2302 (2010); Oklahoma Heart Hosp., DAB No. 2183 (2008);
Forest Glen Skilled Nursing Ctr., DAB No. 1887 (2003).

IV. Conclusion

For the reasons set forth above, I grant CMS’s motion for summary disposition and
affirm CMS’s determination to approve Petitioner’s Medicare participation effective
April 28, 2009, the date the state agency survey was completed finding Petitioner to be in
compliance with all applicable federal requirements.

/s/
Leslie A. Sussan
Board Member


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Alissa Wurtzel, LCSW,
(NPI No. 1013051440),

Petitioner
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-210
Decision No. CR2122

Date: April 27, 2010

DECISION

I deny the Centers for Medicare and Medicaid Services (CMS) motion to dismiss this
case. As to the merits of the case, I find that the effective date of Petitioner’s Medicare
enrollment and billing privileges is no earlier than March 10, 2009.

I. Background

Petitioner, Alissa Wurtzel, is a licensed clinical social worker (LCSW). By letter dated
December 2, 2009, Petitioner filed a hearing request challenging March 10, 2009 as the
effective date of her enrollment in the Medicare program. Instead, Petitioner requests an
effective date of September 5, 2008, the date she received her LCSW licensure. With her
hearing request, Petitioner submitted: the National Government Services’ (NGS)!
decision, dated November 23, 2009, regarding her request for reconsideration of her
March 10, 2009 effective date; her September 16, 2009 request for reconsideration of her
effective date; a June 5, 2009 letter from NGS notifying Petitioner of her effective date;
and a document, titled “Health Care or Environmental Health Professional’s License

' NGS is a Medicare contractor with the initial authority to approve or deny enrollment
in Medicare.
Status,” on letterhead of the Connecticut Department of Public Health, noting that
Petitioner was granted a social worker license on September 5, 2008.

By motion dated February 2, 2010, CMS argued that Petitioner had no right to a hearing
and moved to dismiss her hearing request. Alternatively, CMS moved for summary
judgment. CMS accompanied its motions and brief (CMS Br.) with CMS Exhibits (CMS
Exs.) 1-8. Petitioner did not timely respond and, on March 17, 2010, I issued an order for
Petitioner to show cause why I should not dismiss her case for abandonment. Petitioner’s
representative, Julie Iseminger,” responded to my order by e-mail dated March 22, 2010.
In her response, Ms. Iseminger stated that Petitioner did not respond to CMS’s motions,
because Ms. Iseminger had “no legal expertise . . . [she] was under the assumption that
they] were just waiting to hear back . . . with [my] final decision based on documents
previously submitted.” Based on Petitioner’s response, I notified the parties that I was
closing the record of the case and proceeding to decision based on the written record
before me. I admit CMS Exs. 1-8 into evidence. I am marking the documents contained
in Petitioner’s hearing request as follows: NGS’s November 23, 2009 reconsideration
decision I mark as Petitioner’s Exhibit (P. Ex.) 1; Petitioner’s September 16, 2009 request
or reconsideration I mark as P. Ex. 2; NGS’s June 5, 2009 letter notifying Petitioner of
er effective date I mark as P. Ex. 3; and the document on the Connecticut Department of
Health letterhead I mark as P. Ex. 4. I admit P. Exs. 1-4 into evidence.

Given Petitioner’s request that this case be decided “based on documents previously
submitted,” I do not decide this case by summary judgment but instead decide the case on
the written record submitted by the parties.

IL. Issues

The issues in this case are whether:

1. I should dismiss Petitioner’s hearing request; and

2. Petitioner’s effective date for Medicare enrollment and billing privileges is
March 10, 2009.

> Ms. Iseminger is the Billing Manager, Patient Accounts, for Petitioner's employer
Community Mental Health Affiliates (CMHA). Ms. Iseminger filed the December 2,
2009 hearing request on Petitioner’s behalf.
Ill. Findings of Fact and Conclusions of Law
My findings of fact and conclusions of law are set forth in bold and italics below.
I. There is no basis for me to dismiss Petitioner’s hearing request.

CMS asserts that Petitioner has no right to a hearing to challenge the effective date of her
Medicare enrollment. Specifically, CMS asserts that neither approval of an enrollment
application nor the determination of the effective date is an initial determination subject
to appeal, and, as such, I have no jurisdiction over the matter. CMS Br. at 12. This
argument has been made many times recently before Administrative Law Judges (ALJs)
of the Departmental Appeals Board. I will not address the issue further except to say that
the regulation at 42 C.F.R. § 498.3(b)(15) states that initial determinations made by CMS
that give providers hearing rights include “[t]he effective date of a Medicare provider
agreement or supplier approval.”?

2. The effective date of Petitioner’s Medicare enrollment and billing privileges
is no earlier than March 10, 2009.

The effective date of Medicare billing privileges for an LCSW is “the later of the date of
filing of a Medicare enrollment application that was subsequently approved by a
Medicare contractor or the date an enrolled physician or nonphysician practitioner first
began furnishing services at a new practice location.” 42 C.F.R. § 424.520(d). LCSWs
may bill for services provided 30 days prior to their effective date if circumstances
precluded enrollment in advance of providing services to Medicare beneficiaries. 42
C.F.R. § 424.521(a)(1). The date of filing an enrollment application is the date that the
Medicare contractor receives a signed provider enrollment application that the Medicare
contractor is able to process to approval. See 73 Fed. Reg. 69,726, 69,770 (Nov. 19,
2008); CMS Ex. 7 at 6.

In her hearing request, Petitioner asserts that:

+ Petitioner’s enrollment application was initially submitted on
December 12, 2008.

+ Petitioner was informed on February 13, 2009 that NGS had not
received her enrollment application.

+ Petitioner re-submitted her enrollment application on February 16,
2009.

> As noted by ALJ Kessel in Michael Nillas, M.D., DAB No. CR2077 at 2 n.1 (2010), if
CMS or the Secretary of Health and Human Services intends to limit the reach of the
regulation, the obvious solution is to amend the regulation to make it more narrow.
+ NGS informed Petitioner on February 24, 2009 that her enrollment
application was being closed, because it was not signed or dated
by the authorized or delegated official.

+ An NGS employee told Petitioner’s representative, Ms. Iseminger, that,
before Petitioner’s enrollment application could be processed, Ms.
Iseminger would need to be added as an authorized official, and the new
CMHA CFO would need to be added as an authorized official as well.
Ms. Iseminger was told the record would show that the enrollment
application was received prior to February 24, 2009 and that the
application would be approved retroactive to September 5, 2008.

* On June 5, 2009, Petitioner was notified that her effective date
was September 5, 2008. The effective date on the first page of the
letter listed the effective date as September 5, 2009, but that was
obviously incorrect and September 5, 2008 was listed on the
second page of the letter.

+ CMHA began billing for Petitioner’s services in late June 2009.
The claims were denied. Petitioner was told that her provider
number was tied to an incorrect provider number for the facility.
That was corrected. However, when Petitioner re-submitted
claims, all dates of service prior to March 10, 2009 were denied.

+ On August 24, 2009, Petitioner was informed that when the error
with the facility provider number was corrected, Petitioner’s
retroactive effective date was changed from September 5, 2008 to
March 10, 2009, to conform with the new CMS rule being
enforced for applications received after April 1, 2009.

Petitioner argues that both of the dates that she submitted her enrollment applications
(December 12, 2008 and February 16, 2009) were prior to April 1, 2009. She maintains
that her original September 5, 2008 effective date should be honored as the applications
were made prior to the new CMS rule, which limited the amount of time a provider or
supplier had to claim reimbursement for items or services provided prior to the provider
or supplier’s effective date. 42 C.F.R. § 424.521(a)(1). Petitioner asserts she made every
effort to follow proper Medicare enrollment procedures and feels that, especially in light
of the NGS errors on the final approval letter, she should receive a September 5, 2008
effective date.

In her e-mail, Ms. Iseminger also states that Petitioner never received a letter from NGS
notifying her that Petitioner’s effective date was March 10, 2009, although that date was
referred to in NGS’s November 23, 2009 decision letter upholding the March 10, 2009
effective date. CMS Ex. 3; P. Ex. 1. In that November 23, 2009 decision letter, a
provider enrollment specialist found that NGS received Petitioner’s enrollment
application on December 20, 2008, but that the individual who signed as the delegated
official was not yet authorized to sign on behalf of the group. On April 10, 2009, NGS
received Petitioner’s first approvable enrollment application, and, on June 5, 2009, NGS
notified CMHA that Petitioner’s enrollment application had been approved and the
effective date of billing privileges was March 10, 2009. The provider enrollment
specialist appears to be wrong with regard to the June 5, 2009 notification, as that letter
actually notified Petitioner that her effective date was both September 5, 2009 and
September 5, 2008.

In evaluating the representations made by the parties, a conflict exists in the dates that
Petitioner cites with regard to her submissions and with the dates set forth in the
November 23, 2009 decision letter. However, the discrepancy can be reconciled, because
before Petitioner could submit an approvable enrollment application, her employer,
CMHA, had to submit an application to authorize Ms. Iseminger as a delegated official
for CMHA. CMHA’s application to add Ms. Iseminger was not submitted to NGS until
March 16, 2009, and not approved until April 3, 2009. CMS Exs. 6, 8. Only after that
application was approved could Ms. Iseminger act on behalf of the group to submit an
enrollment application for one of its employees, here Petitioner.

The effective date of the regulations at 42 C.F.R. § 424.520(d) and 424.521(a)(1) is
January 1, 2009. 73 Fed. Reg. 69,726 (Nov. 19, 2008). Thus, the terms of the
regulations govern this case. The regulation at 42 C.F.R. § 424.520(d) prescribes that an
approved application could have an effective billing date of the later of the date of filing
of the application or the date the practitioner began furnishing services at a new location.
In this case, Petitioner did not dispute that her final enrollment application was submitted
on April 10, 2009, after CMHA’s application to add Ms. Iseminger as a delegated official
was approved. Despite the problems with the June 5, 2009 letter, Petitioner does not
dispute that CMS now asserts that Petitioner’s effective date is March 10, 2009.* That
date appears to be predicated on NGS’s and CMS’s interpretation of the regulation at 42
C.F.R. § 424.521(a)(1), which allows an enrolled provider to claim reimbursement for
items or services provided as far back as 30 days from the effective date of enrollment.
Had the regulation been strictly applied here, NGS would have provided that Petitioner’s
effective date for billing privileges was the date of receipt of the approvable application,
April 10, 2009, and NGS could have permitted a billing date of 30 days prior to the
effective date, March 11, 2009. Thus, Petitioner actually received an effective date
which is earlier than that contemplated by regulation.

It is unfortunate that NGS’s June 5, 2009 letter contained errors and that Petitioner may
have been misinformed regarding whether her final enrollment application’s effective
date could be retroactive to September 5, 2008. However, what Petitioner would ask me
to do is to remedy NGS’s errors by requiring CMS to give her a September 5, 2008

‘In her e-mail dated March 22, 2010, Ms. Iseminger requested a corrected letter be faxed
to her notifying Petitioner that Petitioner’s effective date is March 10, 2009. CMS (or
NGS) must do so.
effective date, even though Petitioner could not submit an approvable enrollment
application until April 10, 2009, after Ms. Iseminger was added as a delegated official.
Petitioner’s request is an equitable argument, and I have no authority under the
regulations to provide the equitable relief Petitioner seeks.

IV. Conclusion

For the reasons discussed above, I find Petitioner’s effective date for Medicare
enrollment and billing privileges is no earlier than March 10, 2009.

/s/
Alfonso J. Montafio
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Pamela Lindsey
(OI File No. 6-09-40317-9),
Petitioner
Vv.
The Inspector General.
Docket No. C-10-179
Decision No. CR2121
Date: April 27, 2010
DECISION
I sustain the determination of the Inspector General (I.G.) to exclude Petitioner,
Pamela Lindsey, from participation in Medicare, Medicaid, and other federally-
funded health care programs for a minimum period of five years. Exclusion is
mandated in this case pursuant to section 1128(a)(2) of the Social Security Act
(Act), because Petitioner was convicted of a criminal offense that is related to
neglect or abuse of patients in connection with the delivery of a health care item or

service.

I. Background

Petitioner, a registered nurse, served as Director of Nursing for the Ozark Health
Nursing Center, a long-term care facility in Clinton, Arkansas. The I.G.
determined to exclude her from participation in Medicare, Medicaid, and all other
federally-funded health care programs for the minimum statutory period of five
years, because he concluded that Petitioner had been convicted of a criminal
offense as is described in section 1128(a)(2) of the Act. This section mandates the
exclusion of any individual who is convicted of a criminal offense that is related to
neglect or abuse of patients in connection with the delivery of a health care item or
service.
Petitioner requested a hearing, and the case was assigned to me for a hearing and a
decision. Each party submitted a brief and proposed exhibits. The I.G. submitted
eight exhibits, which are identified as LG. Ex. 1 —1.G. Ex. 8. Petitioner submitted
five exhibits, which are identified as P. Ex. 1 — P. Ex. 5. I receive all of these
exhibits into evidence.

Both parties indicated that an in-person hearing was not necessary for me to
decide this case. In addition, Petitioner indicated that she did not have any
testimony she wished to offer.

IL. Issue, findings of fact, and conclusions of law
A. Issue

The issue in this case is whether Petitioner was convicted of a criminal offense as
described in section 1128(a)(2) of the Act.

B. Findings of fact and conclusions of law
I make the following findings of fact and conclusions of law (Findings).

1. Petitioner was convicted of a criminal offense as is described in
section 1128(a)(2) of the Act.

a. Petitioner was convicted within the meaning of section
1128(i) of the Act.

The evidence offered by the I.G. establishes that on March 26, 2009, Petitioner
voluntarily entered a negotiated plea of guilty or nolo contendere to a criminal
charge of Failure to Report in violation of the Arkansas State Adult and Long-
Term Care Facility Resident Maltreatment Act.' I.G. Ex. 2. ARK. CODE ANN. §
12-12-1720 (2008). This section provides that any person required to report
suspected adult maltreatment or long-term care facility resident maltreatment who
knowingly fails to make the report in the manner and time provided in this
subchapter shall be guilty of a Class C misdemeanor.

As a nurse and an employee of the long-term care facility, Petitioner is a mandated
reporter under this statute. That same day, the court accepted her plea, entered
judgment of conviction, entered a suspended sentence of 30 days, and ordered her
to pay fines and fees of $320. I.G. Ex. 2. I find that Petitioner was convicted

' The court documents do not specify whether Petitioner pled guilty or pled nolo
contendere, but, in her brief, she indicates that she pled guilty. I.G. Ex. 2 at 1; P.
Brief.
within the meaning of section 1128(i) of the Act, because her plea of guilty was
accepted by the Circuit Court of Van Buren County, Arkansas, Twentieth Judicial
District, Third Division. See 42 C.F.R. § 1001.2.

b. Petitioner’s conviction is related to the neglect of a
resident.

By the very terms of Petitioner’s offense, she was convicted of knowingly failing
to make a report or failing to cause a report to be made of her suspicion or
observation that a long-term care facility resident was subjected to conditions or
circumstances that constitute adult maltreatment or long-term care facility resident
maltreatment. ARK. CODE ANN. § 12-12-1720. Clearly, her conviction of the
offense of Failure to Report establishes that she was convicted of an offense
related to the neglect or maltreatment of a resident of a long-term care facility
where she was the Director of Nursing and that the maltreatment occurred in
connection with the delivery of health care services to this resident.

Petitioner does not deny she pled guilty to this offense and that her plea was
accepted. Petitioner does contest that she should be excluded for this. Petitioner
argues that the I.G. states that the incident was not reported. Petitioner contends
that the incident was reported, just that it was reported in 36 hours and not timely
(within 24 hours). P. Brief. However, there is no support for Petitioner’s
contentions. The I.G. stated and the evidence in the record supports that
Petitioner’s conviction of Failure to Report is related to the maltreatment of a
long-term care resident for whom critical medical information was not reported
and which caused an inappropriate treatment order to be given, which caused the
resident’s death. I.G. Brief at 2; 1.G. Exs. 2, 5 [“Defendant purposely and
knowingly advised a LPN not to document or relay critical information while
notifying family members and medical staff of change of medical condition
assessment . . . the failure to report this critical information caused the
inappropriate treatment order to be given which caused . . . resident’s death.], and
6. Petitioner also contends that the Attorney General and District Attorney offices
misrepresented to her the consequences of her guilty plea, and, if she had known,
she would not have pled guilty.

These assertions and contentions, however, establish no defense. I may not look
behind Petitioner’s conviction to decide whether she is actually guilty. The
authority to exclude pursuant to section 1128(a)(2) of the Act derives from a
conviction in a court and not from the underlying acts or omissions on which the
criminal charges leading to the conviction are based. Here, Petitioner plainly was
convicted of an offense as described in section 1128(a)(2), and the LG. authority
to exclude Petitioner derives from that conviction. As a matter of law, the I.G. in
these circumstances has no discretion, because the Act requires the LG. to exclude
a person who has been convicted of an offense as described in section 1128(a)(2).

And, if the I.G. had a basis for the exclusion—in this case a conviction for which
exclusion is required—I must sustain his determination.

2. Petitioner’s five-year exclusion is mandatory.

Section 1128(a)(2) of the Act mandates the IG. to exclude any individual who is
convicted of an offense that falls within the reach of that section. The LG. had no
choice but to exclude Petitioner as a consequence of her conviction. Section
1128(c)(3)(B) of the Act requires that the minimum period of any mandatory
exclusion be for five years.

Here, the I.G. imposed the statutory minimum exclusion period against Petitioner.
The reasonableness of the period of the exclusion is therefore not at issue.

/s/
Alfonso J. Montafio
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Larry Franklin Horton,
Petitioner
Vv.
The Inspector General.
Docket No. C-10-188
Decision No. CR2119

Date: April 23, 2010

DECISION

The hearing request of Petitioner, Larry Franklin Horton, is dismissed pursuant to 42
C.F.R. § 1005.2(e)(3) for abandonment.

I. Background

The Inspector General for the Department of Health and Human Services (the I.G.)
notified Petitioner by letter, dated September 30, 2009, that he was excluded from
participation in Medicare, Medicaid, and all federal health care programs for the
minimum statutory period of 5 years pursuant to section 1128(a)(1) of the Social Security
Act (Act). The basis cited for Petitioner’s exclusion was his conviction in the United
States District Court, District of South Carolina, of a criminal offense related to the
delivery of an item or service under Medicare or a state health care program.
Petitioner timely requested a hearing by letter dated November 20, 2009. The case was
assigned to me for hearing and decision on December 4, 2009. I convened a prehearing
conference by telephone on January 5, 2010, the substance of which is memorialized in
my January 6, 2010 Prehearing Conference Order and Schedule for Filing Briefs and
Documentary Evidence (Prehearing Order). Petitioner waived his right to representation
and to an oral hearing during the prehearing conference.

On February 3, 2010, the LG. filed a brief in support of Petitioner’s exclusion with LG.
exhibits 1 through 4. Pursuant to the Prehearing Order, Petitioner’s brief and supporting
exhibits were due to be filed not later than March 8, 2010. No filing has been received
from Petitioner. On March 18, 2010, the staff attorney assisting me in this matter, Ms.
Sapper, emailed Petitioner to inquire as to the status of his submission. Petitioner has not
responded to the email. Also, on March 18, 2010, Ms. Sapper telephoned Petitioner.
However, Petitioner did not answer the telephone, and there was no answering machine
upon which to leave a message. On March 23, 2010, Ms. Sapper again telephoned
Petitioner, but there was no answer by Petitioner and no answering machine.

On March 26, 2010, I issued an order for Petitioner to show cause not later than April 2,
2010, why his request for hearing should not be dismissed for abandonment pursuant to
42 C.F.R. § 1005.2(e)(3), or as a sanction pursuant to 42 C.F.R. § 1005.14, for violation
of the Prehearing Order. No filing has been received from Petitioner as of the date of this
decision.

IL. Discussion
A. Issue

Whether Petitioner’s request for hearing must be dismissed?
B. Law

An Administrative Law Judge (ALJ) is required to dismiss a request for hearing when a
petitioner has abandoned his or her hearing request. 42 C.F.R. § 1005.2(e)(3).

An ALJ may sanction a party to an action for failure to comply with an order. An
authorized sanction is dismissal of the action. 42 C.F.R. § 1005.14.

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

Petitioner has failed to respond to the CMS brief in support of exclusion. Petitioner has
also failed to respond to the Order to Show Cause. I find that Petitioner has abandoned
his request for a hearing. Accordingly, I conclude that dismissal is required by 42 C.F.R.
§ 1005.2(e)(3).
II. Conclusion

For the foregoing reasons, Petitioner’s request for hearing is dismissed.

/s/

Keith W. Sickendick
Administrative Law Judge