Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Joseph L. Leyva
and
Respiratory and Medical Services, Inc. d/b/a RAMS Medical
(OI File No. H-11-40480-9),
Petitioners,
v.
The Inspector General.
Docket No. C-12-538
Decision No. CR2563

Date: July 2, 2012

DECISION

Petitioner, Joseph L. Leyva, is excluded from participating in Medicare, Medicaid, and
all federal health care programs pursuant to section 1128(b)(5) of the Social Security Act
(Act) (42 U.S.C. § 1320a-7(b)(5)) effective March 20, 2012, based upon his exclusion
from participation in the Alaska Medicaid program for reasons bearing on his
professional competence, professional performance, or financial integrity. There is a
proper basis for exclusion. Petitioner Leyva’s exclusion for the period during which he is
excluded from participation in the Alaska Medicaid program is mandated by section
1128(c)(3)(E) of the Act (42 U.S.C. § 1320a-7(c)(3)(E)) and 42 C.F.R. § 1001.601(b)(1).

Petitioner, Respiratory and Medical Services, Inc. d/b/a RAMS Medical, is excluded
from participating in Medicare, Medicaid, and all federal health care programs pursuant
to section 1128(b)(8) of the Act (42 U.S.C. § 1320a-7(b)(8)) effective March 20, 2012,
based on the fact that it is owned, managed, or controlled by Petitioner Leyva, an
excluded individual. There is a proper basis for exclusion. Petitioner RAMS is subject to
the same period of exclusion as Petitioner Leyva pursuant to section 1128(b)(8) of the
Act and 42 C.F.R. § 1001.1001(b)(1).

I. Background

The Inspector General for the Department of Health and Human Services (I.G.) notified
Petitioner Leyva by letter dated February 29, 2012, that he was being excluded from
participation in Medicare, Medicaid, and all federal health care programs until such time
as he is reinstated by the Alaska Department of Health and Social Services (the state
agency), pursuant to section 1128(b)(5) of the Act. The basis cited for Petitioner’s
exclusion was his exclusion from the Alaska Medicaid program for reasons bearing on
is professional competence, professional performance, or financial integrity. I.G.
Exhibit (Ex.) 1.

By separate letter dated February 29, 2012, the I.G. notified Petitioner RAMS that it was
also being excluded from participation in Medicare, Medicaid, and all federal health care
programs for an indefinite period of time. The I.G. advised Petitioner RAMS that it was
being excluded pursuant to section 1128(b)(8) of the Act, because of its association with
Petitioner Leyva, a sanctioned individual who had a direct or indirect ownership or
managerial control over Petitioner RAMS. LG. Ex. 2.

Petitioner Leyva timely requested a hearing on behalf of RAMS and himself by letter
dated March 12, 2012, which was received at the Civil Remedies Division on April 4,
2012. The case was assigned to me for hearing and decision on April 6, 2012. A
prehearing telephone conference was convened on April 19, 2012, the substance of which
is memorialized in my order dated April 23, 2012. During the prehearing conference,
Petitioner declined to waive an oral hearing. The I.G. requested the opportunity to file a
motion for summary judgment and I established a briefing schedule.

On April 19, 2012, Petitioners filed a request for an emergency stay of the exclusion.
The LG. filed a response in opposition on April 24, 2012, accompanied by I.G. Exs. 1
and 2. Petitioners’ motion for an emergency stay of exclusion was denied on April 26,
2012, on the grounds that I am without authority to order that the exclusions not be
imposed or that their effective date be stayed.

The LG. filed a motion for summary judgment and a supporting brief (I.G. Brief) on May
15, 2012, with I.G. Exs. 3 through 8. Petitioners filed a response to the I.G.’s motion for
summary judgment (P. Response) on May 25, 2012, with Petitioner’s Exhibits (P. Exs.) 1
and 2. On May 31, 2012, the L.G. filed a reply brief. Petitioner has not objected to my
consideration of I.G. Exs. | through 8 and they are admitted as evidence. The I.G. did
not object to my consideration of P. Exs. 1 and 2, and they are admitted.

IL. Discussion
A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioners’ 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).

Section 1128(b)(5) of the Act provides:

(b) Permissive Exclusion —The Secretary may exclude the
following individuals and entities from participation in any
Federal health care program (as defined in section 1128B(f)):

sede

(5) Exclusion or suspension under federal or state health care
program.—Any individual or entity which has been
suspended or excluded from participation, or otherwise
sanctioned, under—

(A) any Federal program, including programs of the
Department of Defense or the Department of Veterans
Affairs, involving the provision of health care, or

(B) a State health care program,

for reasons bearing on the individual's or entity's professional
competence, professional performance, or financial integrity.

The Secretary has promulgated regulations implementing this provision of the Act. 42
C.F.R. § 1001.601(a)(1).

Section 1128(b)(8) of the Act authorizes the exclusion from participation in Medicare,
Medicaid, and all other federal health care programs of any business entity that is owned,
operated, or managed by, or has as its agent, any person “who has been convicted of any
offense described in subsection (a) of this section . . .” or who has been excluded from a
federal or state health care program. Exclusions under section 1128(b) are permissive,
i.e. discretionary. Entities excluded under section 1128(b)(8) generally must be excluded
for the same period as the person whose relationship with the entity is the basis for the
exclusion. 42 C.F.R. § 1001.1001(b)(1).
The standard of proof is a preponderance of the evidence. 42 C.F.R. § 1001.2007(c).
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
CFR. § 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 C.F.R. § 1001.2007(a)(1). Whether the length of exclusion is unreasonable is not an
issue in this case, as the period is specified by Congress and the Secretary. Act
§1128(c)(3)(E); 42 C.F.R. § 1001.1001(b).

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

Petitioners’ request for hearing was timely filed and preserved Petitioners’ 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 LG. 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 disputed issues 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. and Med. Ctr., DAB No. 1628, at 3 (1997) (holding in-
person hearing required where non-movant shows there are material facts in dispute that
require testimony); Thelma Walley, DAB No. 1367 (1992); see also New Millennium
CMHC, DAB CR672 (2000); New Life Plus Ctr., DAB CR700 (2000).

There are no genuine issues of material fact in dispute in this case. There is no dispute
that Petitioners were excluded by the State of Alaska from its state Medicaid programs
for their failure to repay an overpayment. I.G. Ex. 3. Petitioner Leyva questions the
validity of the state action, contending that the overpayment determination was based on
questionable evidence and he claims also that the state agency “engaged in spoliation of
evidence.” P. Br. at 1. However, I may not review the underlying state action and
Petitioners may not collaterally attack that action before me. As discussed hereafter, this
case must be resolved against Petitioners as a matter of law because the state action
provides a basis for permissive exclusion and the period of exclusion is fixed by law.
There are no genuine disputes as to any facts material to the issues before me.
Accordingly, summary judgment is appropriate.

3. There is a basis to exclude Petitioner Leyva pursuant to section
1128(b)(5) of the Act.

On August 6, 2010, the state agency notified Petitioner Leyva by letter that Petitioners’
participation in the Alaska Medicaid program would be terminated effective 30 days from
the date of the letter, unless Petitioners requested an appeal. The basis stated for the
action was failure to repay or make arrangements to repay an overpayment or other
erroneous payment. I.G. Ex. 3, at 3.' On October 11, 2010, the state agency informed
Petitioner Leyva by letter that no appeal had been received from Petitioners and that the
state agency had received Petitioner Leyva’s September 26, 2010 letter in which he had
stated that he would not appeal the sanction. The state agency advised Petitioner Leyva
that the state agency had no choice but to impose the sanction of exclusion from Alaska
Medicaid, effective September 6, 2010, based upon Petitioners’ failure to repay or
arrange for repayment of an overpayment or other erroneous payment. I.G. Ex. 3, at 8-9.

The state agency notified the I.G. by letter dated March 11, 2011, that Petitioners were
being sanctioned “with indefinite exclusion” from Alaska Medicaid due to failure to
repay an overpayment in the amount of $39,640.65. The exclusion from the Medicaid
program became effective on September 6, 2010. LG. Ex. 3, at 1.

' The State of Alaska reported Petitioners to the Healthcare Integrity and Protection Data
Bank. I.G. Ex. 3, at 3.
Pursuant to section 1128(b)(5) of the Act, the Secretary may exclude from participation
any individual or entity: (1) excluded from participation in a state health care program;
(2) for reasons bearing upon the individual’s or entity’s professional competence,
professional performance, or financial integrity. In this case, there is no dispute that the
Alaska Medicaid program is a state health care program within the meaning of section
1128(h) of the Act. There is no dispute that Petitioners were excluded from the Alaska
Medicaid program. There is also no dispute that the exclusions were based on failure to
repay the overpayment determined by the state agency. The undisputed facts are
sufficient to establish the “common sense” connection or nexus between the exclusions
and Petitioners’ financial integrity. George Iturralde, M.D., DAB No. 1374, at 10-11
(1992). Accordingly, there is a basis for the exclusion of Petitioner Leyva pursuant to
section 1128(b)(5) of the Act.

4. There is a basis to exclude Petitioner RAMS pursuant to section
1128(b)(8) of the Act.

The exclusion of Petitioner Leyva provides a basis for the exclusion of Petitioner RAMS
pursuant to section 1128(b)(8) of the Act, due to the relationship of Petitioners.

Petitioner RAMS’s official business filings with the Alaska Department of Commerce
establish that Petitioner Leyva is the President, Treasurer, and Director of RAMS, as well
as its registered agent. I.G. Exs. 7, 8. Petitioner Leyva, a sanctioned individual, controls
Petitioner RAMS within the meaning of section 1128(b)(8)(A) of the Act. Accordingly,
a basis exists for the exclusion of Petitioner RAMS pursuant to section 1128(b)(8) of the
Act.

Petitioners argue that the state agency’s action was flawed in that it was based on
questionable evidence, and that it was a “lie in judgment (P. Br. at 1).” However,
Petitioners may not collaterally attack in this forum the state action that resulted in their
exclusion, and I have no jurisdiction to review the underlying state action.

When the exclusion is based on the existence of a criminal
conviction or a civil judgment imposing liability by Federal,
State or local court, a determination by another Government
agency, or any other prior determination where the facts were
adjudicated and a final decision was made, the basis for the
underlying conviction, civil judgment or determination is not
reviewable and the individual or entity may not collaterally
attack it either on substantive or procedural grounds in this
appeal.
42 C.F.R. § 1001.2007(d). My review is limited to determining whether the I.G. was
correct that there was an adverse state action upon which to base a permissive exclusion.
I have concluded that there was an adverse state action. Petitioners’ arguments are
attempts to collaterally attack the state’s action, which is simply not permitted in this
proceeding. Petitioners requested subpoenas for transcripts of the state proceedings. The
request is denied as Petitioners have not shown that the transcripts are sought for any
reason other than to support Petitioners’ attack upon the state action. I do not have the
authority to grant the review of the state action that Petitioners seek.

Petitioners also claim that the state agency “engaged in spoliation of evidence” and that
the state agency withheld evidence in a state court proceeding. These arguments are
without merit in this proceeding. Spoliation by the state agency, even if true, is not
grounds upon which I may grant relief. Petitioners must take their complaint regarding
state agency conduct to the proper state authorities, as I have no jurisdiction to provide
the review of the state agency action or the relief that Petitioners seek.

5. The periods of the exclusions are not unreasonable as a matter of
law.

In this case, there is no issue as to the reasonableness of the periods of exclusion, as the
periods of exclusion are fixed by the Act and regulations. The Act and regulations
mandate that the periods of exclusion will be not less than the period of exclusion from
the state program. Act § 1128(c)(3)(E); 42 C.F.R. § 1001.601(b)(1). Accordingly, the
exclusion of Petitioner Leyva and Petitioner RAMS until Petitioner Leyva is reinstated in
the Alaska Medicaid program is not unreasonable as a matter of law.”

> Petitioner’s reinstatement in Medicare or other federal programs is not automatic.
When Petitioner Leyva is reinstated into the Alaska Medicaid program, he must apply to
the LG. for reinstatement. 42 C.F.R. §§ 1001.3001-.3004. If the state action is
overturned on appeal, then Petitioner Leyva should advise the I.G. and request
reinstatement in accordance with the regulations. 42 C.F.R. § 1001.3005.
III. Conclusion

For the foregoing reasons, Petitioners are excluded from participation in Medicare,
Medicaid, and all federal health care programs effective March 20, 2012, 20 days after
the February 29, 2012 I.G. notices of exclusion.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

New England Urogynecology, P.C.,
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-12-518
Decision No. CR2560

Date: June 26, 2012

DECISION

Sujatha Rajan, M.D., who practices as New England Urogynecology, P.C. (NEU),
Petitioner, appeals the determination of NHIC, Corp. (NHIC), a Medicare contractor,
regarding Petitioner’s effective date of Medicare enrollment. I grant the Centers for
Medicare & Medicaid Services’ (CMS’s) motion for summary judgment, finding that
Petitioner’s effective date of enrollment is September 23, 2011. I find, however, that
Petitioner’s retrospective date for billing privileges commenced on August 24, 2011, not
August 25, 2011, as NHIC and CMS determined.

I. Background
Sujatha Rajan, M.D., a urogynecologist, is the owner of NEU. CMS Exhibit (Ex.) 2, at 3.

On September 23, 2011, NHIC received an application from Dr. Rajan to enroll NEU as a
supplier in Medicare.' On the same day, NHIC received an application from Dr. Rajan to

' A “supplier” furnishes services under Medicare and the term applies to physicians or
other practitioners that are not included within the definition of the phrase “provider of
services.” Social Security Act (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
change her Medicare information. CMS Exs. 2, 3. NHIC approved both applications,
with an effective date of August 25, 2011.’ Petitioner requested reconsideration, asking
NHIC to change the effective date to August 3, 2011, the date Dr. Rajan began seeing
Medicare patients as NEU. Ina reconsideration decision dated March 5, 2012, NHIC
declined to do so. CMS Ex. 6, at 1-2. On March 30, 2012, Petitioner filed a hearing
request, accompanied by several attachments. CMS filed a motion for summary
judgment and brief (CMS Br.), accompanied by six exhibits (CMS Exs. 1-6), on May 2,
2012. CMS Ex. | includes copies of all the attachments filed by Petitioner with her
hearing request on March 30, 2012. Dr. Rajan responded for Petitioner on May 29, 2012,
with a brief and Petitioner’s Motion for Summary Judgment in letter form (P. Br.). With
Petitioner’s brief and Motion, Dr. Rajan filed a document which she asserts constitutes all
her “Medicare claims” for August 2011. I have marked this document as P. Ex. 1. In the
absence of objection, I admit CMS Exs. 1-6 and P. Ex. | into evidence.

II. Applicable Law

The Act authorizes the Secretary of Health and Human Services (Secretary) to
promulgate regulations governing the enrollment process for providers and suppliers.

Act §§ 1102, 1866(j); 42 U.S.C. §§ 1302, 1395cc(j). Under the Secretary’s regulations, a
provider or supplier that seeks billing privileges under Medicare must “submit enrollment
information on the applicable enrollment application. Once the provider or supplier
successfully completes the enrollment process . .. CMS enrolls the provider or supplier
into the Medicare program.” 42 C.F.R. § 424.510(a).

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.

> Both NHIC’s November 21 and 28, 2011 letters approving Petitioner’s enrollment and
change of information applications, and the reconsideration decision of March 5, 2012,
state that Petitioner’s effective date of Medicare participation is August 25, 2011. CMS
Exs. 5, 6. It is undisputed, however, that NHIC received the applications from Petitioner
that it subsequently approved on September 23, 2011. The applicable regulations, as
discussed below, require the receipt date of an enrollment application to control as the
effective date of enrollment, while permitting a supplier to retrospectively bill for 30 days
prior to the effective date. 42 C.F.R. § 424.521(a)(1). Thirty days prior to September 23,
2011, is August 24, 2011. Thus, as discussed below, I treat August 24, 2011, as the
earliest date on which Petitioner could begin submitting claims because, under law, the
effective date of Petitioner’s enrollment must be September 23, 2011.

A “provider or supplier must submit a complete enrollment application and supporting
documentation to the designated Medicare fee-for-service contractor,” and the application
must include “complete . . . responses to all information requested within each section as
applicable to the provider or supplier type.” 42 C.F.R. § 424.510(d)(1)-(2).

The effective date of enrollment for physicians and physician practice organizations is set
as follows:

The effective date for billing privileges for physicians, 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.

42 C.F.R. § 424.520(d). In addition, CMS permits limited retrospective billing as
follows:

Physicians, nonphysician practitioners and physician and nonphysician
practitioner organizations may retrospectively bill for services when a
physician or nonphysician practitioner or a physician or a nonphysician
practitioner organization have met all program requirements, including
State licensure requirements, and services were provided at the enrolled
practice location for up to—

(1) 30 days prior to their effective date if circumstances precluded
enrollment in advance of providing services to Medicare beneficiaries, or

(2) 90 days [in certain emergencies.]
42 CFR. § 424.521(a).
III. Issue
The issue in this case is whether CMS had a legitimate basis for finding that September
23, 2011, is the effective date for Petitioner’s Medicare enrollment and billing privileges,
and, thus, whether August 24, 2011, is Petitioner’s retrospective billing date.

IV. Analysis

My findings of fact and conclusions of law are set forth in italics and bold in the
discussion captions of this decision.
A. This case is appropriate for summary judgment.

Both parties argue that they are entitled to summary judgment. The Departmental
Appeals Board (Board) stated the standard for summary judgment:

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. . . . 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... .

If the moving party carries its initial burden, the non-moving party must “com
forward with ‘specific facts showing that there is a genuine issue for trial.’””.. . 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. . . . 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.

Senior Rehabilitation & Skilled Nursing Center, DAB No. 2300, at 3 (2010) (citations
omitted). An Administrative Law Judge’s (ALJ’s) role in deciding a summary judgment
motion differs from its role in resolving a case after a hearing. The ALJ should not assess
credibility or evaluate the weight of conflicting evidence. Holy Cross Village at Notre
Dame, Inc., DAB No. 2291, at 5 (2009). The Board has further stated, “[i]n addition, it is
appropriate for the tribunal to consider whether a rational trier of fact could regard the
parties’ presentation as sufficient to meet their evidentiary burden under the relevant
substantive law.” Dumas Nursing and Rehabilitaion, L.P., DAB No. 2347, at 5 (2010).

Neither party has requested that I convene an in-person hearing to take testimony with
regard to any factual issues raised in this case. Thus, I could decide the case based
simply on the parties’ briefs and documentary exhibits, and not under the stricter
principles governing summary judgment. However, as I discuss below, Petitioner has not
furnished evidence of a genuine dispute concerning a material fact. Thus, summary
judgment in favor of CMS is appropriate.

B. NHIC’s September 23, 2011 receipt of Petitioner’s enrollment application
necessarily determines Petitioner’s effective date and retrospective billing
privileges.

It is undisputed that on September 23, 2011, NHIC received an enrollment application for
NEU, and Dr. Rajan’s application to change her Medicare information. CMS Exs. 2, 3.
By letters dated November 21 and 28, 2011, NEU’s enrollment application and
Dr. Rajan’s change of information were approved, and NHIC gave Petitioner an effective
date of August 25, 2011. CMS Ex. 5. Petitioner requested reconsideration, asking NHIC
to change the effective date to August 3, 2011. In a reconsideration decision dated March
5, 2012, NHIC upheld the August 25, 2011 effective date, noting that the date was 30
days prior to the receipt of the application resulting in Petitioner’s approval. CMS Ex. 6.

The determination of the effective date of Medicare enrollment is governed by 42 C.F.R.
§ 424.520. As noted above, section 424.520(d) provides that the effective date for
enrollment for physicians and physician practitioner organizations (among others), 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.” (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. 69,726, 69,769 (Nov. 19, 2008). It is well-settled that the date of
filing is the date the Medicare contractor receives an approvable application. Jennifer
Tarr, M.D., DAB CR2299 (2010); Michael Majette, D.C., DAB CR2142 (2010); Roland
J. Pua, M.D., DAB CR2163 (2010); Rizwan Sadig, M.D., DAB CR2401 (2011).

Although NHIC erroneously referred to August 25, 2011, as Petitioner’s effective date in
its letters dated November 21 and 28, 2011, and in its March 5, 2012 reconsideration
decision (CMS Exs. 5, 6), the regulations require a Medicare contractor to assign the date
of receipt of an enrollment application as the effective date while permitting the
contractor to grant retrospective billing privileges for 30 days prior to the effective date.
42 C.F.R. § 424.521(a)(1). Thus, as noted above, I treat NHIC’s action as if it intended
September 23, 2011, as the effective date of Petitioner’s enrollment, as that is required by
law. Thirty days prior to September 23, 2011, is August 24, 2011. Thus, August 24,
2011, is the earliest date on which Petitioner could be authorized to submit Medicare
claims.

Petitioner’s concern as expressed here is that it has not been paid for care provided to
Medicare beneficiaries from August 3, 2011 (the date Dr. Rajan began her practice as
NEU) through August 24, 2011 (the date on which Petitioner is allowed to commence
filing Medicare claims). Petitioner does not argue that NHIC actually received either the
enrollment application for NEU or Dr. Rajan’s application concerning a change of
information prior to September 23, 2011, and does not dispute the declaration filed by
CMS that an NHIC analyst searched NHIC’s electronic and physical records and did not

> Petitioner actually argued that it should be paid for care between August 3 and 25,
2011. However, as noted above, I have found that 30 days prior to September 23, 2011,
is August 24, 2011, not August 25, 2011, as determined by NHIC and CMS. Thus,
August 24, 2011, is Petitioner’s retrospective billing date and she can begin claiming
reimbursement as of that date.
find any application from Petitioner submitted in July 2011. CMS Ex. 4. Instead,
Petitioner asserts in support of authorizing an earlier billing date, that an enrollment
application for NEU, and an application to change Dr. Rajan’s Medicare information,
was actually submitted during the first week in July 2011, and that the applications were
most likely lost in the mail. Petitioner asserts that Dr. Rajan relied on a third party to
prepare and submit the applications, an individual who had been doing Dr. Rajan’s
“credentialing” for a number of years. Petitioner asserts that this individual is
experienced in preparing Medicare applications and trustworthy, and that Dr. Rajan
believes this individual did send the enrollment and change of information applications to
NHIC in early July 2011. To bolster this argument, Petitioner refers to a series of e-mails
authored by Dr. Rajan and the individual who was to submit the applications discussing
the purported July submissions. A June 9, 2011 e-mail from this individual to Dr. Rajan
specifically asserts that “[y]our Medicare Group and Individual applications will be sent
out on 7/1/2011 as the earliest I can submit is 30 days before.” E-mails of July 12 and
September 20, 2011, however, refer only to the status of these purported applications, and
they do not show that the applications were actually mailed or otherwise submitted.

CMS Ex. 1, at 3-6. Petitioner does not offer a copy of any July 2011 enrollment
applications, any proof of mailing, or any other document to corroborate Petitioner’s
claims. Petitioner does not assert that Dr. Rajan has firsthand knowledge regarding how
these applications were submitted in July 2011, nor does it offer an affidavit or request
that I hear testimony from the individual it asserts submitted these applications to attest to
the fact that the applications were, in fact, mailed or otherwise submitted in July 2011.
Dr. Rajan’s belief that the applications were mailed in July does not constitute evidence
of a dispute concerning a material fact that would preclude summary judgment for CMS,
nor does Petitioner’s unsupported suggestion that the applications may have been lost in
the mail.

Petitioner asserts that Dr. Rajan was diligent and “followed the rules” in getting the
applications submitted. When Petitioner realized that the applications did not reach
NHIC by September 20, 2011, it asserts Dr. Rajan and the individual preparing and
submitting the applications made certain that new applications were submitted
immediately, those being the applications received by NHIC on September 23, 2011.
Petitioner believes that Dr. Rajan and NEU are now being “penalized for no fault on my
part.” Petitioner notes Dr. Rajan provided continuity of care to her Medicare patients as
of August 3, 2011; that Dr. Rajan is the only urogynecologist in her area; and that her
patients would not have had access to urogynecology services had she refused to provide
care for them after August 3, 2011. Petitioner asserts that Dr. Rajan’s practice is
predominantly geriatric, and that most of her patients are Medicare beneficiaries.
Petitioner complains that the denial of payment for three weeks of service will produce a
significant financial impact on the practice. Petitioner rather disingenuously asserts that

Medicare’s refusal to pay transfers the burden of payment to Petitioner’s patients.
Finally, Petitioner asks that it be paid for services rendered after August 3, 2011, so that
Dr. Rajan and the patients do not “pay the price for an error that was not committed by
us.”

CMS does not dispute, and for summary judgment purposes I will accept arguendo, that
NEU and Dr. Rajan treated these patients in good faith and in the expectation of
Medicare reimbursement. I am without authority, however, to order either NHIC or CMS
to provide an exemption to Petitioner under the circumstances. Petitioner’s request for
payment after August 3, 2011, amounts to a claim of equitable estoppel, but such a claim
gives me no authority to grant an earlier effective date of enrollment. See US
Ultrasound, DAB No. 2302, at 8 (2010) (“[nJeither the ALJ nor the Board is authorized
to provide equitable relief by reimbursing or enrolling a supplier who does not meet
statutory or regulatory requirements.”). Moreover, I have no authority to declare statutes
or regulations invalid. 1866/CPayday.com, L.L.C., DAB No. 2289, at 14 (2009) (“[a]n
ALJ is bound by applicable laws and regulations and may not invalidate either a law or
regulation on any ground.”). It is well-established by federal case law, and in Board
precedent, that: (1) estoppel cannot be the basis to require payment of funds from the
federal government; (2) estoppel cannot lie against the government, if at all, absent a
showing of affirmative misconduct, such as fraud; and (3) I am not authorized to order
payment contrary to law based on equitable grounds. See, e.g., Office of Personnel
Management v. Richmond, 496 U.S. 414 (1990); Heckler v. Community. Health Services
of Crawford County, Inc., 467 U.S. 51 (1984); Oklahoma Heart Hospital, DAB No.
2183, at 16 (2008); Wade Pediatrics, DAB No. 2153, at 22 n.9 (2008), aff'd, 567 F.3d
1202 (10th Cir. 2009).

V. Conclusion

For the reasons explained above, based on the undisputed fact that NHIC did not receive
a completed enrollment application from Petitioner until September 23, 2011, I conclude
that Petitioner’s effective date of enrollment must be September 23, 2011. Petitioner’s
retrospective billing period, however, starts on August 24, 2011, not on August 25, 2011,
as determined by NHIC and CMS.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Petra A. Illig, M.D.,
Petitioner,
v.

Department of Health and Human Services.

CRD Docket No. C-12-516
Decision No. CR2559

Date: June 22, 2012

DECISION AND ORDER

Petitioner requested reconsideration of a determination denying Petitioner’s request for
waiver of a debt owed to the Department of Health and Human Services (DHHS).
Because I do not have jurisdiction to reconsider that determination, I am returning this
case to the DHHS office that denied her waiver request. That office should forward
Petitioner’s request for reconsideration to the appropriate DHHS official who has
authority to reconsider the denial of the request for waiver.

Petitioner has been employed by the Centers for Disease Control and Prevention since
2007 as a Quarantine Medical Officer in Anchorage, Alaska.! On May 2, 2011, DHHS
informed Petitioner in an e-mail that DHHS overpaid Petitioner $6,372.80 due to an
erroneous cost of living adjustment calculation made in 2010. Ina July 16, 2011 letter,
the Defense Finance and Accounting Service, which is the payroll service for DHHS
employees, see Qin Ryan, M.D., Ph.D., DAB CR1970, at 1 (2009),” also notified

' The facts stated in this decision are based on the documents that Petitioner filed with the
Civil Remedies Division (CRD) of the Departmental Appeals Board (DAB).

> DAB decisions are available at http://www.hhs.gov/dab/decisions/index.html.
2

Petitioner of the overpayment. On or about August 1, 2011, Petitioner filed a
Waiver/Remission of Indebtedness Application (DD Form 2789) with DHHS.

On November 30, 2011, Gerald Hughes, a supervisor with DHHS’s Payroll Liaison
Services, issued a determination denying Petitioner’s waiver request. Mr. Hughes
advised Petitioner that she could file a reconsideration request with the General Counsel.
However, rather than providing an address for the Office of the General Counsel (OGC),
Mr. Hughes directed Petitioner to send the request to the CRD’s mailing address.*

The CRD received Petitioner’s request, dated March 19, 2012, on March 28, 2012. On
April 3, 2012, the CRD sent a notice to Petitioner and to OGC indicating that another
administrative law judge was assigned to Petitioner’s case. By letter dated June 8, 2012,
the CRD notified the parties that this case was reassigned to me.

Before adjudicating the merits of this matter, I must determine whether I have jurisdiction
to reconsider the denial of a debt waiver request. Cf: Suzanne R. Bergman, DAB CR1282
(2005) (dismissing salary overpayment case for lack of jurisdiction). For the reasons
stated below, I conclude that I do not have jurisdiction.

When a federal agency intends to collect a salary overpayment through deductions from
an employee’s pay, the employee has two distinct, but not mutually exclusive methods of
seeking relief from the agency’s intended action. The employee may request a hearing
on the existence or amount of the alleged debt and may request waiver of the debt. See
5 US.C. §§ 5514(a)(2), 5584(a). Cases involving a request for hearing must be
adjudicated by an administrative law judge or an individual who is not under the
supervision or control of the head of the agency. 5 U.S.C. §§ 5514(a)(2). In contrast, a
request for waiver does not have to be adjudicated by an administrative law judge. See
5 US.C. § 5584(a). Therefore, while CRD administrative law judges serve as hearing
officials when a debt is disputed, they are not specifically authorized to adjudicate
requests for waiver of a debt. See 45 C.F.R. §§ 33.1, 33.2, 33.6 (2011); see also Qin
Ryan, M.D., Ph.D., DAB CR1970, at 1 n.1 (2009).*

* The entire mailing address provided to Petitioner was: Civil Remedies Division, Office
of the Secretary, Department [sic] Appeals Board, Attention: Mr. Theodore Kim, 330
Independence Avenue, S.W., Cohen Building, #G-644, MS-6132, Washington, D.C.
20201.

+ Under the regulations in effect before March 8, 2007, an administrative law judge

adjudicating a dispute concerning the existence or amount of a debt could also decide an
employee’s waiver request if DHHS referred that request to the administrative law judge
for decision. See 45 C.F.R. § 30.15(p) (2006); Alfred H. Varga, DAB CR342, at 1-3
(1994). However, that provision no longer exists. See 72 Fed. Reg. 10,404 (Mar. 8,
2007); 72 Fed. Reg. 10,419 (Mar. 8, 2007).

Because there is no evidence that Petitioner filed a timely request for hearing on the issue
of her indebtedness to DHHS and is only disputing DHHS’s denial of her waiver request,
I do not have jurisdiction over this case.

Order

This case is dismissed. Petitioner’s request for reconsideration of DHHS’s denial of her
waiver request is hereby referred to Mr. Gerald Hughes at Payroll Liaison Services to
determine which DHHS official has the authority to entertain Petitioner’s request.* See
Lisa Meegs Joldersma, DAB CR1184 (2004). Mr. Hughes should then forward
Petitioner’s request for reconsideration to that official.

It is so ordered.

/s/
Scott Anderson
Administrative Law Judge

* It appears that OGC may have authority to reconsider the denial of waiver requests. See
Linda J. Adams, DAB CR3724, at 12 n.2 (1994). The November 30, 2011 letter denying
Petitioner’s request for waiver indicated that Petitioner should submit a reconsideration
request to OGC. The petitioner in Suzanne R. Bergman, DAB CR1282 (2005), was
provided with the same notice. Further, the instructions to Form HHS-710 (Request for
Waiver of Overpayment or Hearing DHHS) indicate that OGC has a role in the waiver
process.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Ultrasound & Radiology Specialist, Inc.,
(NPI: 1518007798),

Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-522
Decision No. CR2558
Date: June 25, 2012
DECISION

The Medicare billing privileges of Petitioner, Ultrasound & Radiology Specialist, Inc.,
are revoked, effective June 25, 2011, for noncompliance with enrollment requirements.

I. Background

Petitioner is an independent diagnostic testing facility IDTF) located in Coral Springs,
Florida. On September 10, 2010, First Coast Service Options, Inc. (First Coast), a
contractor for the Centers for Medicare and Medicaid Services (CMS), sent Petitioner a
request to complete and submit an enrollment application and supporting documentation
within 60 days in order for First Coast to revalidate and update Petitioner’s Medicare
enrollment information, pursuant to 42 C.F.R. § 424.515(d)(1). CMS Exhibit (Ex.) 1, at
10-11.

On May 26, 2011, First Coast notified Petitioner that its Medicare billing number and
billing privileges were being revoked effective June 25, 2011, based on Petitioner’s
failure to timely furnish complete and accurate information and all supporting
2
documentation. CMS Ex. 1, at 82-83.' Petitioner requested reconsideration. First Coast
denied Petitioner’s reconsideration request in a decision dated January 25, 2012,
upholding the revocation of Petitioner’s “Provider Transaction Access Number (PTAN)
for participation and enrollment in the Medicare program.” CMS Ex. 1, at 1-9. Evan
Sade filed a hearing request on Petitioner’s behalf on March 23, 2012.7

The case was assigned to me for hearing and decision on April 3, 2012, and I issued an
Acknowledgment and Prehearing Order (Prehearing Order) on that date. On May 3,
2012, CMS filed a motion for summary judgment and brief (CMS Br.), accompanied by
three exhibits, CMS Exs. | through 3. Petitioner responded by letter dated May 6, 2012
(P. Br.), but Petitioner filed no exhibits. CMS declined to file a reply on May 16, 2012.
CMS Exs. | through 3 are admitted as evidence.

' The May 26, 2011 notice letter issued by First Coast advised Petitioner that CMS was
revoking Petitioner’s Medicare billing number and billing privileges pursuant to 42
C.F.R. § 424.535(a)(6). First Coast cited as grounds for the revocation that Petitioner
failed to furnish complete and accurate information within 60 calendar days of the
request for information from CMS. The citation to 42 C.F.R. § 424.535(a)(6) was in
error because the regulation was amended effective March 25, 2011, and 42 C.F.R.

§ 424.535(a)(6) was changed. 76 Fed. Reg. 5862, 5891 (Feb. 2, 2011). When the
revocation notice was issued on May 26, 42 C.F.R. § 424.535(a)(6) provided for
revocation based on failure to meet screening requirements. The correct regulatory
citation to the basis for revocation should have been 42 C.F.R. § 424.535(a)(1), which
authorized revocation of billing privileges if a supplier was not in compliance with
Medicare enrollment requirements or the enrollment application applicable for its
supplier type, including failure to submit requested documents within 60 days. The
reconsideration decision also incorrectly refers to 42 C.F.R. § 424.535(a)(6). CMS Ex. 1,
at 2. I conclude Petitioner suffered no prejudice due to these clerical errors as the
grounds for revocation were adequately described and Petitioner has demonstrated
throughout this proceeding awareness of the actual grounds for revocation.

> Mr. Sade attached documents to the hearing request that he asserted were documents
requested by First Coast. I have not marked these documents and admitted them as
evidence as their content is not relevant to any issue before me. However, based upon the
language of the request for hearing, Mr. Sade apparently concedes that not all documents
requested by First Coast were actually submitted to First Coast within 60 days, or prior to
the reconsideration determination.
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. Payment under the program for services rendered to Medicare-eligible
beneficiaries may only be made to eligible providers of services and suppliers. Act §§
1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). Petitioner is a
supplier under the applicable definitions, and below I discuss the law only as it applies to
suppliers.? Administration of the Part B program is through contractors such as First
Coast. Act § 1842(a) (42 U.S.C. § 1395u(a)).

The Act requires the Secretary of Health and Human Services (the Secretary) to issue
regulations that establish a process for the enrollment of suppliers, including the right to a
hearing and judicial review of certain enrollment determinations. Act § 1866(j) (42
U.S.C. § 1395cc(j)); 42 C.F.R. § 424.545(a).

Pursuant to 42 C.F.R. § 424.505, a provider or 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. If enrollment is
approved, a supplier is issued a National Provider Identifier (NPI) to use for billing
Medicare and a PTAN, an identifier for the supplier for inquiries. Medicare Program
Integrity Manual (MPIM), Chapter 10, Healthcare Provider/Supplier Enrollment, § 6.1.1.
Providers and suppliers must submit complete, accurate and truthful responses to all
information requested in the enrollment application. 42 C.F.R. § 424.510(d)(2).
Suppliers must meet basic requirements depending on their type of service. 42 C.F.R.

§§ 424.505, 424.516, 424.517. Suppliers are also subject to additional screening
requirements depending upon their type of service. 42 C.F.R. § 424.518.

If a provider or supplier is accepted for enrollment and granted billing privileges, the
enrollee is subject to revalidation every five years. Every five years, the enrollee is

> A “supplier” furnishes services under Medicare and the term applies to physicians or
other practitioners 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.
4
required to resubmit and recertify the accuracy of its enrollment information and the
information is verified by the CMS contractor. CMS is also permitted to conduct “off-
cycle” revalidation that may be conducted at any time and which may be triggered by
random checks, adverse information, national initiatives, complaints, or other reasons that
cause CMS to question whether the provider or supplier continues to meet enrollment
requirements. A provider or supplier must submit the applicable enrollment information,
complete and accurate, and supporting documentation within 60 calendar days of CMS’s
notification. 42 C.F.R. § 424.515.

CMS may revoke a supplier’s billing privileges, and any corresponding “supplier
agreement,” if a supplier is determined to not be in compliance with Medicare enrollment
requirements or the enrollment application applicable for the supplier type and has not
submitted a corrective action plan (CAP). Suppliers are given the opportunity to correct
the deficient compliance requirements before final determination to revoke billing
privileges, with certain exceptions not applicable here. 42 C.F.R. § 424.535(a)(1).
CMS’s contractor notifies a supplier in writing when it revokes enrollment and explains
the reasons for the determination and information regarding the supplier’s right to appeal.
42 C.F.R. § 498.20(a); MPIM Ch. 10, §§ 6.2, 13.2. The supplier may submit a written
request for reconsideration to CMS. 42 C.F.R. § 498.22(a). CMS 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. 42 C.F.R. § 498.25.
If the CMS decision on reconsideration is unfavorable to the supplier, the Act provides
for a hearing by an ALJ and judicial review. Act § 1866(j)(2).

B. Issues

Whether CMS is authorized to revoke Petitioner’s Medicare billing
privileges and 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. Summary judgment is appropriate.

CMS filed a motion for summary judgment. Summary judgment is not automatic upon
request but is limited to certain specific conditions. The Secretary’s regulations that
establish the procedures to be followed in adjudicating Petitioner’s case are at 42 C.F.R.
Part 498. The regulations do not establish a summary judgment procedure or recognize
such a procedure. However, the Departmental Appeals Board (the Board) has long
accepted that summary judgment is an acceptable procedural device in cases adjudicated
5
pursuant to 42 C.F.R. Part 498. See, e.g., Ill. Knights Templar Home, DAB No. 2274, at
3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med.
Ctr., DAB No. 1628 (1997). The Board also has recognized that the Federal Rules of
Civil Procedure do not apply in administrative adjudications such as this, but the Board
has accepted that Federal Rule of Civil Procedure 56 and related cases provide useful
guidance for determining whether summary judgment is appropriate. Furthermore, a
summary judgment procedure was adopted as a matter of judicial economy within my
authority to regulate the course of proceedings and made available to the parties in the
litigation of this case by my Prehearing Order dated April 3, 2012. The parties were
given notice by the Prehearing Order that summary judgment is an available procedural
device and that the law as it has developed related to Fed. R. Civ. Pro. 56 will be applied.

Summary judgment is appropriate when there is no genuine dispute as to any issue of
material fact for adjudication and/or the moving party is entitled to judgment as a matter
of law. In determining whether there are genuine issues of material fact for trial, the
reviewer must view the evidence in the light most favorable to the non-moving party,
rawing all reasonable inferences in that party’s favor. The party requesting summary
judgment bears the burden of showing that there are no genuine issues of material fact for
trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant
may not defeat an adequately supported summary judgment motion by relying upon the
lenials in its pleadings or briefs but must furnish evidence of the case if proven. Senior
Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (and cases cited therein). See
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The standard for
leciding a case on summary judgment and an ALJ’s decision-making in deciding a
summary judgment motion differs from resolving a case after a hearing. On summary
judgment, the ALJ does not make credibility determinations, weigh the evidence, or
lecide which inferences to draw from the evidence, as would be done when finding facts
after a hearing on the record. Rather, on summary judgment the ALJ construes the
evidence in a light most favorable to the non-movant and avoids deciding which version
of the facts is more likely true. Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291, at 5
(2009). The Board has also recognized that on summary judgment it is appropriate for
the ALJ to consider whether a rational trier of fact could find that the parties’ evidence
would be sufficient to meet that party’s evidentiary burden, in this proceeding a
preponderance of the evidence. Dumas Nursing and Rehab., L.P., DAB No. 2347, at 5
(2010). The Secretary has not specified the allocation of the burden of persuasion or the
quantum of evidence in 42 C.F.R. Part 498. However, the Board has provided some
persuasive analysis regarding the allocation of the burden of persuasion in cases subject
to 42 C.F.R. Part 498. Batavia Nursing and Convalescent Ctr., DAB No. 1904 (2004),
aff'd, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 Fed. App’x 181 (6" Cir.
2005).

6
Petitioner concedes that there are no material facts in dispute. P. Br. I concur that there
is no genuine dispute as to any material fact that requires a trial. The issues in this case
that require resolution are issues of law related to the interpretation of the regulations that
govern enrollment and billing privileges in the Medicare program and the application of
the regulations to the undisputed facts of the case. Accordingly, summary judgment is
appropriate and the CMS motion is granted.

2. Petitioner failed to timely submit revalidation information and
documentation pursuant to 42 C.F.R. § 424.515.

3. There is a basis for revocation of Petitioner’s Medicare billing
privileges pursuant to 42 C.F.R. § 424.535(a)(1).

A supplier, such as Petitioner, must resubmit and recertify the accuracy of its enrollment
information every five years or as requested by CMS, to maintain billing privileges and
enrollment. 42 C.F.R. § 424.515(a) and (d). The supplier must submit the appropriate
enrollment application to CMS with complete and accurate information and supporting
documentation, within 60 calendar days of CMS’s notification to resubmit and certify the
accuracy of the supplier’s enrollment application. 42 C.F.R. § 424.515(a)(2). CMS may
revoke a supplier’s billing privileges and enrollment in Medicare if the supplier fails to
comply with enrollment requirements, including the requirement to submit requested
documentation in 60 calendar days. 42 C.F.R. § 424.535(a)(1).

a. Facts

The undisputed facts show that on September 10, 2010, First Coast sent Petitioner a letter
requesting that Petitioner complete and submit an enrollment application and supporting
documentation in order for First Coast to revalidate and update Petitioner’s Medicare
enrollment information, as required by 42 C.F.R. § 424.515(d)(1). The letter instructed
Petitioner that the information had to be submitted within 60 days and advised Petitioner
that failure to submit the required information within the time permitted would result in
revocation of Petitioner’s billing privileges. CMS Ex. 1, at 10-11.

On October 8, 2010, Petitioner’s President, Wendy Browne-Foye submitted a CMS-855B
Medicare supplier enrollment application and additional documentation to First Coast.
CMS Ex. 1, at 12-34. First Coast acknowledged receipt by letter dated October 20, 2010.
CMS Ex. 1, at 35-36.

On November 11, 2010, First Coast informed Petitioner by letter that additional
information was required to complete the application. The letter listed what the
information and documents required. The letter also advised Petitioner that it needed to
7

submit the required information and documents within 30 days or the application could
be closed and billing privileges revoked. CMS Ex. 1, at 37-40.

On December 15, 2010, First Coast notified Petitioner by letter that it was closing
Petitioner’s application because Petitioner had not submitted the requested information
within 30 days. CMS Ex. 1, at 42-45, 89-90.

Petitioner sent additional information to First Coast on December 21, 2010. CMS Ex. 1,
at 46-69. First Coast acknowledged receipt of Petitioner’s revised application by letter
dated January 4, 2010. CMS Ex. 1, at 70-71. On January 14, 2011, Petitioner submitted
more information to First Coast. CMS Ex. 1, at 72-81.

On May 26, 2011, First Coast notified Petitioner by letter that Petitioner’s Medicare
“billing number and billing privileges” were being revoked effective June 25, 2011. First
Coast stated that the revocation was based on Petitioner’s failure to furnish complete and
accurate information and all supporting documentation within 60 days of the notification
to submit an enrollment application and supporting documentation. First Coast informed
Petitioner that it was ineligible to apply for enrollment in Medicare for a one-year period,
but noted that to correct the deficiencies and reapply to establish its eligibility Petitioner
had 30 days to submit a CAP. First Coast also informed Petitioner that if it disagreed
with First Coast’s determination it could request reconsideration of First Coast’s decision
within 60 days. CMS Ex. 1, at 82-83.

On October 12, 2011, First Coast denied Petitioner’s CAP because Petitioner did not
identify an adverse action on its application. CMS Ex. 1, at 142-43. Petitioner submitted
a letter to First Coast on October 21, 2011, which First Coast treated as a request for
reconsideration of the revocation decision. On December 27, 2011, Quanita Jones, an
Enrollment Appeals Analyst for First Coast, informed Ms. Browne-Foye that First Coast
had received Petitioner’s reconsideration request on October 25, 2011. Ms. Jones also
sent a facsimile coversheet to Petitioner listing the sections of the enrollment application
not yet completed and referencing additional documents that Petitioner needed to provide
to First Coast by December 31, 2011, in order for First Coast to process Petitioner’s
enrollment application. CMS Ex. 1, at 2, 147-51.

Petitioner sent additional information by facsimile to Ms. Jones at First Coast on
December 29, 2011. Petitioner also requested an extension to the first week of January
2012 to more fully respond. CMS Ex. 1, at 152-64. Ms. Jones also spoke to Ms.
Browne-Foye on December 29, 2011, to review the missing information Petitioner still
needed to provide. CMS Ex. 1, at 4. On January 3, 2012, after receiving information
from Petitioner by facsimile, Ms. Jones again advised Petitioner of missing and
incomplete information needed to complete the file. CMS Ex. 1, at 5, 165-67. Ms. Jones
spoke with Ms. Browne-Foye again on January 5, 2012, to review the missing
8
information and to go over specific items that needed correction. Ms. Browne-Foye
informed Ms. Jones that Petitioner had moved. The uncontested evidence shows that Ms.
Browne-Foye sent additional documents to First Coast by facsimile on January 3, 6, 9,
10, 13, 18, and 19, 2012. CMS Ex. 1, at 168-201; CMS Ex. 2, at 1-3.

On January 25, 2012, Ms. Jones signed First Coast’s reconsideration decision denying
Petitioner’s request to reconsider the revocation of Petitioner’s billing privileges and
enrollment, on grounds that Petitioner failed to timely submit required information and
documentation. CMS Ex. 1, at 1-9. The reconsideration decision notified Petitioner that
it had 60 days to request an Administrative Law Judge (ALJ) hearing. Even after the
January 25, 2012 denial of the reconsideration request, however, Ms. Browne-Foye
continued to send documents to First Coast. CMS Ex. 2.

b. Analysis

CMS asserts that Petitioner’s Medicare billing privileges were properly revoked pursuant
to 42 C.F.R. § 424.535(a)(1) based on Petitioner’s failure to furnish CMS with a
complete revalidation enrollment application and supporting documentation within 60
days of First Coast’s notification that revalidation was necessary. Petitioner does not
dispute that First Coast requested this information September 10, 2010. Petitioner also
does not dispute that it failed to fully comply with First Coast’s request within 60 days, or
at any time prior to January 25, 2012, the date First Coast denied its reconsideration
request, more than a year after the notice to submit enrollment application and supporting
documents.

Pursuant to the regulations that control participation in Medicare, Petitioner was obliged
to provide complete information to First Coast concerning its enrollment status. 42
C.F.R. § 424.515(a)(2). Petitioner does not dispute that it was still submitting requested
information and documentation at the time First Coast issued its reconsideration decision.
Accordingly, CMS had a basis for revocation of Petitioner’s billing privileges and
enrollment.

Petitioner argues that “fairness” should compel First Coast to continue to process its
application. The argument is without merit. There is no requirement that CMS, or its
contractor First Coast, keep an enrollment application open indefinitely. First Coast
requested in September of 2010 that Petitioner submit an enrollment application and
supporting documentation in order for First Coast to revalidate and update Petitioner’s
Medicare enrollment information. Petitioner had 60 days to do so. Petitioner not only
failed to successfully complete its application in 60 days, it failed to do so for more than a
year. To the extent that Petitioner’s argument is for equitable relief, | am not authorized
to provide equitable relief. US Ultrasound, DAB No. 2302, at 8 (2010). However, even
if I had authority to grant equitable relief, the equities are not in Petitioner’s favor. The
9
evidence shows that CMS and First Coast were very fair and reasonable in granting
Petitioner multiple attempts to correct its application, well beyond the 60 days.
Petitioner’s inability to comply with the very specific requests of First Coast reflects a
clear lack of diligence on Petitioner’s part, or worse a clear lack of competence for an
entity seeking to participate in Medicare.

Petitioner also argues that First Coast should continue to process its application because:
First Coast has implemented an “unpublished, internal moratorium” on completing IDTF
applications in South Florida; First Coast is not complying with Medicare enrollment
timeframes in its review of CMS 855B applications; and on-site inspections are not being
performed. Petitioner argues that First Coast should not be allowed to disregard
Medicare enrollment timeframes to complete IDTF enrollments, yet on the other hand
hold IDTF applicants firmly to other Medicare deadlines. Petitioner asserts that in four
cases involving IDTF applications in South Florida, First Coast has not held itself to any
timeframes whatsoever with regard to on-site inspections. Petitioner’s arguments have
no relevance or bearing upon the issues before me.

II. Conclusion

For the foregoing reasons, Petitioner’s Medicare billing privileges and enrollment are
revoked effective June 25, 2011, for noncompliance with enrollment requirements.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Center for Tobacco Products,
Complainant,
v.

Harvey Davis and Patricia Davis
d/b/a Greenfield Trading Post,

Respondent.

Docket No. C-12-583
FDA Docket No. FDA-2012-H-0382

Decision No. CR2557

Date: June 20, 2012

DECISION AND ORDER OF DEFAULT JUDGMENT

The Center for Tobacco Products (CTP) began this matter by serving a complaint on
Respondent, Harvey Davis and Patricia Davis, doing business as Greenfield Trading Post
(Greenfield), at 325 North Grand Street, Greenfield, MO 65661. The complaint alleges
that Greenfield sold tobacco products to a minor, in violation of the Federal Food, Drug,
and Cosmetic Act (Act) and its implementing regulations, 21 C.F.R. Part 1140, and seeks
a $250 civil money penalty.

As provided for in 21 C.F.R. §§ 17.5 and 17.7, on April 19, 2012, CTP served the
complaint on Respondent Greenfield by United Parcel Service. In the complaint and
accompanying cover letter, CTP explained that, within 30 days, Respondent Greenfield
should pay the penalty, file an answer, or request an extension of time in which to file an
answer. CTP warned Respondent that if it failed to take one of these actions within 30
days, the Administrative Law Judge could, pursuant to 21 C.F.R. § 17.11, issue an initial
decision ordering it to pay the full amount of the proposed penalty.
2
Respondent Greenfield has not filed an answer within the time prescribed. Pursuant to 21
C.F.R. § 17.11, I assume that the facts alleged in the complaint are true. Specifically:

¢ On June 27, 2011, FDA-commissioned inspectors inspected the Greenfield
establishment and observed the sale of cigarettes or smokeless tobacco to a person
younger than 18 years of age;

e Ina warning letter dated September 22, 2011, the CTP informed Respondent
Greenfield of the inspector’s June 27, 2011 observations, and that such sales
violate federal law, 21 C.F.R. § 1140.14(a). The letter further warned that
Greenfield’s failure to correct its violation[s] could result in a civil money penalty
or other regulatory action;

e On January 27, 2012, at 7:58 p.m. CST, an FDA-commissioned inspector
documented that a person younger than 18 years of age was able to purchase a
package of Red Seal Long Cut Wintergreen smokeless tobacco from Respondent
Greenfield.

These facts establish Respondent Greenfield’s liability under the Act. The Act prohibits
misbranding of a tobacco product. 21 U.S.C. § 331(k). A tobacco product is misbranded
if sold or distributed in violation of regulations issued under section 906(d) of the Act as
amended by the Family Smoking Prevention and Tobacco Control Act of 2009 § 101,
Pub. L. 111-31, (current version at 21 U.S.C. § 387f(d)). See 21 U.S.C. § 387c(a)(7)(B);
21 C.F.R. §1140.1(b). Under 21 C.F.R. § 1140.14(a), no retailer may sell cigarettes or
smokeless tobacco to any person younger than 18 years of age. A $250 civil money
penalty is permissible under 21 C.F.R. § 17.2.

Order

For these reasons, I enter default judgment in the amount of $250.00 against Respondent.
Pursuant to 21 C.F.R. § 17.11(b), this order becomes final and binding upon both parties
within 30 days of the date of its issuance.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Francis J. Gerner, Ph.D.,
(NPI: 1346213543),

Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-233
Decision No. CR2556

Date: June 19, 2012

DECISION TO DISMISS AND REMAND TO THE CENTERS FOR
MEDICARE AND MEDICAID SERVICES

Petitioner, Francis J. Gerner, Ph.D., is a Kansas psychologist who challenges the Centers
for Medicare and Medicaid Services (CMS) revocation of his enrollment and billing
privileges in the Medicare program. CMS has moved for summary disposition based on
Petitioner’s failure to timely respond to a revalidation information request. However, I
find CMS did not cite a legitimate basis for the revocation, and Petitioner has now come
forward with responsive information. I dismiss this case and remand the matter to CMS
pursuant to 42 C.F.R. § 498.56(d).

By letter dated June 6, 2011, the CMS contractor revoked Petitioner’s enrollment in the
Medicare program effective June 3, 2011. The contractor cited 42 C.F.R. § 424.535(a)(6)
as its basis for revocation because Petitioner failed to furnish revalidation information to
CMS within 60 calendar days of notification. The notice also informed Petitioner that he
was barred from re-enrollment for a one-year period. CMS Exhibit (Ex.) 4. On
November 11, 2011, CMS upheld the initial determination because it still did not receive
copies of Petitioner’s diploma or driver’s license for signature verification. CMS Ex. 6.
With his request for administrative law judge (ALJ) review, Petitioner submitted his
diplomas and a copy of his driver’s license. Hearing Request.

On March 25, 2011, 42 C.F.R. § 424.535(a)(6) changed and no longer provided the basis
upon which CMS articulated in its initial determination and now before me in its motion
for summary disposition. See 76 Fed. Reg. 5,862, 5,964-5,965 (Feb. 2, 2011); CMS Ex.
4; CMS motion for summary disposition at 4-5. CMS has never contended that it
revoked Petitioner’s enrollment on the revised authority:

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

(6) Grounds related to provider and supplier screening
requirements. (i)(A) An institutional provider does not submit
an application fee or hardship exception request that meets
the requirements set forth in §424.514 with the Medicare
revalidation application; or

(B) The hardship exception is not granted and the
institutional provider does not submit the applicable
application form or application fee within 30 days of
being notified that the hardship exception request was
denied.

(ii)(A) Either of the following occurs:

(1) CMS is not able to deposit the full
application amount into a government-owned
account.

(2) The funds are not able to be credited to the
U.S. Treasury.
(B) The provider or supplier lacks sufficient funds in
the account at the banking institution whose name is
imprinted on the check or other banking instrument to
pay the application fee; or

(C) There is any other reason why CMS or its
Medicare contractor is unable to deposit the
application fee into a government-owned account.

42 CFR. § 424.535(a)(6)(2011).

Instead, CMS based Petitioner’s revocation on the previous version of the subsection
which was entitled, “Inadequate reverification information,” and provided for enrollment
revocation for failure to furnish documentation within 60 days of a CMS notification. 42
C.F.R. § 424.535(a)(6) (2010).

Further, 42 C.F.R. § 424.535(c) was revised so that, as of July 16, 2012, a re-enrollment
bar does not apply when based upon a supplier’s failure to respond timely to a
revalidation request. See 77 Fed. Reg. 29,002, 29,030 (May 16, 2012). Specifically, it
was considered “unnecessarily punitive” and “results in unnecessarily harsh
consequences for the provider or supplier and causes beneficiary access issues in some
cases.” Id. at 29,009. Further, it was suggested that temporary deactivation would be a
less restrictive regulatory remedy. Jd.

Upon remand I direct that, within 40 days, CMS shall consider the information Petitioner
has now provided. If this documentation satisfies its revalidation request, I direct CMS to
eradicate its one year re-enrollment bar against Petitioner and revalidate Petitioner’s
enrollment and billing privileges retrospectively to his June 3, 2011 revocation date.

If this issue is not resolved on remand, I direct CMS to issue a new notice letter to
Petitioner with a legitimate basis for the revocation. CMS’s new notice letter will
terminate its obligations under 42 C.F.R. § 498.56(d) and my decision. Upon receiving
CMS’s new notice letter, Petitioner may exercise his right to request a hearing in
accordance with 42 C.F.R. § 498.40.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Alexander Eugene Istomin
Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-236
Decision No. CR2555

Date: June 19, 2012

DECISION

Petitioner, Alexander Eugene Istomin, appeals a reconsideration decision issued on
December 6, 2011. After a review of the written record in this case, I sustain the
determination of the Centers for Medicare and Medicaid Services (CMS) to revoke
Petitioner’s Medicare enrollment and billing privileges as a nurse practitioner. I do so
because Petitioner did not show that he met all Medicare enrollment requirements.

I. Background and Procedural History

Petitioner submitted an enrollment application for eligibility to submit claims to the
Medicare program for covered services he provided to beneficiaries as a nurse
practitioner.' CMS Exhibit (Ex.) 3. Petitioner listed his practice location as “1965 S.
Ocean Drive, Suite #16D, Hallandale, FL, 33009-5954” and indicated that this practice
location was a “private practice office setting.” CMS Ex. 3, at 12.

' Petitioner signed his enrollment application “Alexander Istomin, M.D.,” and also signs
his correspondence in the same manner. CMS Ex. 3, at 21; CMS Ex. 4, at 2. Petitioner
acknowledges though that he is not a U.S. licensed physician and explains that his
“M.D.” refers to a medical degree he earned in the Union of Soviet Socialist Republics in
1989. P. Br. at 13-14; P. Ex. 10.
Petitioner also listed two other practice locations, one in Moscow, Russia and one in St.
Petersburg, Russia. CMS Ex. 3, at 13-14. Petitioner stated that he began seeing
Medicare patients at all three practice locations on January 3, 2007. CMS Ex. 3, at 12-
14; CMS Ex. 4, at 8. Petitioner also stated that he kept Medicare patients’ medical
records at two sites in Moscow and St. Petersburg, Russia. CMS Ex. 3, at 17.

On June 2, 2011, SafeGuard Services (SafeGuard), a CMS zone program integrity
contractor, attempted to conduct an on-site review of the practice location listed in
Petitioner’s Medicare enrollment application in Hallandale, Florida. CMS Ex. 16 and
CMS Ex. 3, at 12. The SafeGuard representative did not find Petitioner operational to
furnish Medicare covered services at 1965 S. Ocean Drive, Suite #16D in Hallandale,
Florida. CMS Ex. 16. The SafeGuard representative then attempted to hold a phone
interview with Petitioner; however, Petitioner indicated he was unwilling to be
interviewed by a SafeGuard representative. CMS Exs. 15 and 16. Petitioner explained
that he was not satisfactorily assured of the representative’s credentials. P. Br. at 7-8;
CMS Ex. 15.

On October 13, 2011, First Coast Service Options, Inc. (First Coast), a Medicare
contractor, notified Petitioner that his Medicare enrollment and billing privileges were
revoked. CMS Ex. 1. The notice letter also advised Petitioner that CMS was establishing
a re-enrollment bar from participation in the Medicare program for a period of three
years. Id. Petitioner was notified that he could submit a Corrective Action Plan (CAP)
within thirty days or request reconsideration within sixty days. Jd. Petitioner timely
requested reconsideration, and on December 6, 2011, a Medicare enrollment appeals
analyst determined that CMS properly revoked Petitioner’s enrollment in the Medicare
program. CMS Ex. 2. The reconsideration decision provided Petitioner with appeal
rights for review by an Administrative Law Judge (ALJ). Jd. Petitioner then filed a
hearing request (HR) with the Civil Remedies Division of the Departmental Appeals
Board.

In accordance with my Acknowledgment and Pre-hearing Order, CMS filed a Pre-
Hearing Brief (CMS Br.), accompanied by sixteen exhibits (CMS Exs. 1-16), including
the written direct testimony of one proposed witness. Petitioner then filed his reply to the
CMS Pre-Hearing Brief (P. Br.), accompanied by nineteen exhibits (P. Exs. 1-19). I
admit all of CMS’s exhibits and Petitioner’s exhibits into the record without objection.
Petitioner did not request to cross-examine CMS’s proposed witness. Without the need
for cross-examination, as explained in my Acknowledgement and Pre-hearing Order, I
did not conduct a hearing and thus decide this case upon the written record.
II. 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. Payment under the program for services rendered to Medicare-eligible
beneficiaries may only be made to eligible providers of services and suppliers.” When
applying for enrollment in the Medicare program, a supplier is required to provide
complete accurate and truthful responses to all information requested within each section
on the enrollment application applicable to the supplier type. 42 C.F.R. §
424.510(d)(2)(i). In addition, CMS has a right to perform on-site inspections to verify
the accuracy of a supplier’s enrollment information and to determine their compliance
with Medicare enrollment requirements. 42 C.F.R. § 424.510(d)(8); see also 42 C.F.R. §
424.517(a)(1).

A supplier in the Medicare program “must be operational to furnish Medicare covered
items or services before being granted Medicare billing privileges.” 42 C.F.R.

§ 424.510(d)(6). A supplier is “operational” when he or she 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 and services.” 42 C.F.R. § 424.502.

CMS is authorized to revoke a supplier’s Medicare billing privileges when the provider is
determined not to be in compliance with Medicare enrollment requirements. 42 C.F.R.

§ 424.535(a). Federal regulations provide for revocation of a provider or supplier’s
Medicare billing privileges for a variety of reasons including:

(5) On-site review. CMS determines, upon on-site review,
that the provider or supplier is no longer operational to
furnish Medicare covered items or services, or is not meeting
Medicare enrollment requirements under statute or regulation
to supervise treatment of, or to provide Medicare covered
items or services for, Medicare patients. . . .

42 CFR. § 424.535(a)(5).

> A “supplier” furnishes services under Medicare, and the term supplier applies to
physicians and other non-physician 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)). Nurse practitioners and other non-physician practitioners are considered
suppliers under the relevant regulations. See 42 C.F.R. §§ 400.202 and 424.502.
Furthermore, 42 C.F.R. § 424.517 states that:

(a) CMS reserves the right, when deemed necessary, to
perform onsite review of a provider or supplier to verify that
the enrollment information submitted to CMS or its agents is
accurate and to determine compliance with Medicare
enrollment requirements. Site visits for enrollment purposes
do not affect those site visits performed for establishing
compliance with conditions of participation. Based upon the
results of CMS's onsite review, the provider may be subject to
denial or revocation of Medicare billing privileges as
specified in § 424.530 or § 424.535 of this part.

sete

(2) Medicare Part B providers. CMS determines, upon
review, that the supplier meets any of the following
conditions:

(i) Is unable to furnish Medicare-covered items
or services.

(ii) Has failed to satisfy any or all of the
Medicare enrollment requirements.

RR
Ill. Analysis
A. Issue

The issue in this case is whether CMS had a legitimate basis to revoke Petitioner’s
Medicare enrollment and billing privileges as a nurse practitioner.

B. Findings of Fact and Conclusions of Law

i CMS legitimately revoked Petitioner’s enrollment and billing
privileges because Petitioner did not satisfy Medicare requirements by
supplying complete and accurate information on his Medicare
enrollment application.
Applicants must provide complete accurate and truthful responses to all information
requested within each section on their enrollment applications. 42 C.F.R. §
424.510(d)(2)(i). If a supplier does not meet a Medicare requirement such as this, CMS
‘as a legitimate basis for revocation. 42 CFR § 424.535(a)(4) and (5)(ii).

On his enrollment application, Petitioner indicated that his Hallandale, Florida practice
location was a “private practice office setting.” CMS Ex. 3, at 12. Petitioner has not
provided any documentation to CMS to establish Petitioner’s Hallandale location as
anything other than a private apartment or condominium, or that it was ever an office
setting operational for Medicare reimbursement purposes.

Petitioner’s own evidence substantiates this. Petitioner submitted a letter from the
president of the condominium association for the Hallandale, Florida address with the
intention of showing that there were no visitors on June 2, 2011, the date of CMS’s onsite
visit. P. Ex. 1. The condominium association president refers to the location as
Petitioner’s “Apt. 16D,” not “Suite 16D” as noted on Petitioner’s enrollment application.
P. Ex. 1. This suggests that the address is a residence and not a “private practice office
setting.” Also, a security policy that Petitioner presents suggests that non-residents at the
listed practice location would not be ordinarily expected on the premises (“[Security
Officer] Supervisors: while completing your rounds in common areas, please do not
hesitate to ask for id to [sic] people that you do not recognize as residents.”) P. Ex. 2, at
1. A police report Petitioner presents also references his listed practice location as
Petitioner’s “apartment” containing his personal items. P. Ex. 7. And, most importantly,
Petitioner simply has not come forward with any evidence, nor does he ever contest, that
this location is not an office setting where he provided care for patients with any
regularity.

Therefore, I find that Petitioner has failed to satisfy Medicare requirements because he
inaccurately represented a physical practice location as an office setting when it was in
actuality his personal apartment/condominium.

li. CMS legitimately revoked Petitioner’s enrollment and billing
privileges because Petitioner did not satisfy Medicare requirements by
maintaining an operational physical practice location.

If CMS determines based on an on-site review that the supplier is no longer operational
to furnish Medicare-covered items or services, or is not otherwise meeting Medicare
enrollment requirements, it may revoke the supplier’s billing privileges. 42 C.F.R.

§ 424.535(a)(5). A supplier is “operational” when he 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.
6

In his Medicare enrollment application, Petitioner lists three practice locations. The
application states: ““Complete this section for each of your practice locations where you
render services to Medicare beneficiaries ... .”. CMS Ex. 3, at 11. Petitioner listed one
practice location address in Hallandale, Florida and two other practice locations in
Russia. CMS Ex. 3, at 11- 14. Despite this, Petitioner claims that he does not intend to
submit Medicare claims for any services he provides abroad.’ P. Br. at 12. Therefore,
Petitioner’s Florida address, his only U.S. practice location listed, is critical in
determining whether Petitioner has a qualified physical practice location for Medicare
reimbursement purposes.

CMS attempted to conduct an on-site review of Petitioner’s practice location in
Hallandale, Florida to verify Petitioner’s compliance with Medicare enrollment
requirements on June 2, 2011. CMS Ex. 16 and CMS Ex. 3, at 12. The CMS contractor
reported that the address listed in Petitioner’s Medicare enrollment application as a
practice location was a private condominium residence and that Petitioner was in New
York. CMS Ex. 16. Petitioner does not dispute CMS’s contention that he was in New
York. In fact, Petitioner concedes that he was not operational at this location, as he
admits he has not provided services as a nurse practitioner in Florida since 2008. P. Br.
at 10. However, Petitioner infers, without providing supporting evidence, that he may
ave provided gratuitous emergency services under provisions of the “Florida Good
Samaritan Law” in the past. P. Br. at 10. Petitioner also merely explains, in support of
information he provided on his enrollment application, that he provided services to a
Medicare patient in Florida on January 3, 2007, the same date he also provided services
to “two of his Medicare patients via telecommunications in his offices in Russia.” P. Br.
at 11.

Otherwise Petitioner makes no further reference to patient care in Florida. Petitioner
contends that his inability to provide medical services in Florida is due to CMS and its
contractors hindering Petitioner’s efforts to enroll in the Medicare program. P. Br. at 10.
However, Petitioner points to no authority requiring Medicare enrollment as a
prerequisite to practicing as a nurse practitioner in Florida.

Petitioner also contests that CMS attempted to conduct an onsite visit on June 2, 2011
because the CMS inspector would have been required to sign a visitor log, and the visitor
log did not show Petitioner had any visitors that day. See P. Exs.1 and 2.

However, I have no reason to doubt the CMS contractor’s sworn statement and
unchallenged direct testimony that she went to the listed address and found a private

* Nonetheless, Petitioner states that he stores his patients’ medical records in his two main
offices in Moscow and St. Petersburg, Russia because storing the medical records of
Medicare patients in Russia “represents [a] modern cost effective business model. . . .”

P. Br. at 13.
condominium. CMS Ex. 16. This is because, again, Petitioner’s own evidence
corroborates that his alleged practice location is a private condominium. See P. Ex. 1 (a
condominium association president’s statement); P. Ex. 2 (a security policy requiring
security personnel to identify people who appear to be non-residents in common areas);
P. Ex 7 (a Hallandale police report which repeatedly describes the location as Petitioner’s
apartment and on which Petitioner reported to the police that “none of his personal items
had been stolen”).

Even if I were to assume the CMS inspector did not physically go to the address, which I
do not, the fact that a listed practice location of Petitioner is actually a private residential
condominium is enough to persuade me that the location was not operational, especially
when considered in conjunction with Petitioner’s own admission that he has not been
providing medical services in Florida since 2008. P. Br. at 10.

IV. Conclusion

I must sustain CMS’s revocation determination if a legitimate basis exists and where the
facts establish noncompliance with any or all of the Medicare enrollment requirements.
42 C.F.R. § 424.517(a)(2)(ii). Although CMS and Petitioner have argued additional
reasons for Petitioner’s enrollment revocation, it is unnecessary for me to address these
reasons in light of my findings above. I find the CMS decision to revoke Petitioner’s
Medicare enrollment and billing privileges as a nurse practitioner was clearly justified
considering CMS’s unrefuted showing that Petitioner was not operational, and he did not
provide complete and accurate information on his Medicare enrollment application.

/s/
Joseph Grow
Administrative Law Judge