Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Crawford F. Barnett, M.D.,
(NPI #1720051014)
Petitioner,

Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-529
Decision No. CR2233

Date: September 1, 2010

DECISION

Crawford F. Barnett, M.D., Petitioner, appeals the determination of Palmetto, GBA
(Palmetto), a Medicare contractor, granting his application for enrollment as a Medicare
supplier and authorizing billing privileges beginning September 21, 2009, 30 days prior
to its receipt of his approved application on October 21, 2009. I deny the Centers for
Medicare & Medicaid Services’ (CMS’s) motion for dismissal or, in the alternative, for
summary affirmance. I decide the case on the written record and sustain CMS’s
determination about the effective date of Petitioner’s enrollment and grant of retroactive
billing privileges.’

' The parties use the term “effective date” to refer to the date on which Petitioner could
bill for Medicare services. See, e.g., CMS Ex. 5 (Palmetto letter to ADO Oct. 31, 2009
assigning “Effective Date” of Sept. 10, 2009). Under the regulations, the effective date
would ordinarily be the date Palmetto received Petitioner’s application that it approved
and therefore the same as the date of Petitioner’s enrollment in Medicare. CMS and
Palmetto are authorized, however, to permit Petitioner to “retrospectively bill” for
services for up to 30 days prior to that effective date, as they did here. 42 C.F.R.

§ 424.521(a). For clarity, I use “effective date” to refer to the effective date of
enrollment, and not the date on which retrospective billing begins.
I. Applicable law

The effective dates of Medicare enrollment and billing privileges are established by 42
C.F.R. §§ 424.520 and 424.521. Section 424.520(d) provides that the effective date of
enrollment for physician, nonphysician practitioners, and their organizations is “the /ater
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) (emphasis added). Certain suppliers, including
physicians, may be permitted to bill retrospectively for up to 30 days prior to the effective
date of their enrollment “if circumstances precluded enrollment in advance of providing
services to Medicare beneficiaries,” or 90 days in the event of certain Presidentially-
declared disaster situations. 42 C.F.R. § 424.521(a).

Il. Background

Petitioner, a physician practitioner with Anesthesiologists D.O., Inc. d/b/a Doctors Pain
Clinic (ADO),” states that on July 27, 2009, ADO submitted to Palmetto, by certified
mail, a package containing six Medicare applications: individual enrollment application
forms (CMS-855I) for Petitioner and another physician practitioner with ADO, and four
application forms (CMS-855R) to enroll Petitioner and the other practitioner as suppliers
with both ADO and Doctors Pain Center, LLC, another corporate entity. Petitioner
Request for Hearing (RH); Petitioner Brief (P. Br.). Petitioner states that Palmetto
received this package on July 30, 2009, and Petitioner submitted a certified mail return
receipt card as evidence of the receipt date. Petitioner states that ADO’s employee in
charge of credentials called Palmetto Provider Enrollment and was told that the
contractor did not have the applications, and that ADO thus resubmitted these
applications with new signatures in September 2009. Jd. Ina letter dated November 4,
2009, Palmetto advised that Petitioner had been “‘added to the roster” of ADO with
billing privileges effective September 21, 2009 (i.e., 30 days prior to Palmetto’s alleged
date of receipt of his application). CMS Ex. 10. Palmetto sustained that determination in
a reconsideration decision dated January 20, 2010, on the grounds that the date assigned
for the beginning of billing privileges was 30 days prior to Palmetto’s receipt of

> The request for hearing was submitted on letterhead of Doctors Pain Clinic by the
practice administrator for “Anesthesiologists D.O./Doctors Pain Clinic” who stated that it
was filed by Anesthesiologists D.O. For the sake of convenience, we refer to these
entities simply as ADO.
Petitioner’s application, and that Petitioner did not have a right to appeal the effective
date determination. CMS Ex. 16.

Petitioner filed a hearing request seeking billing privileges based on the application
submitted to Palmetto July 27, 2009. On April 1, 2010 I issued an Acknowledgment and
Pre-Hearing Order (Order) setting procedures for the appeal, and CMS, in accord with
my Order, submitted on May 3, 2010 its motion for dismissal or summary affirmance and
supporting brief (CMS Br.), and its proposed exhibits 1 through 18, including the
declaration of one proposed witness. On May 28, 2010, Petitioner submitted his brief, his
proposed exhibits designated I through VIL and a proposed witness list. Petitioner did
not submit any written direct testimony of his proposed witnesses, as required by my
Order.

In its brief, CMS argues that there is no right for a supplier to appeal the effective date of
Medicare enrollment and billing privileges, and, alternatively, that the effective date
determination here is entitled to summary affirmance in the nature of summary judgment.
For the reasons discussed below, I deny CMS’s motion to dismiss. I also deny CMS’s
motion for summary affirmance, as I find that Petitioner has raised a dispute about a
material fact. However, I further find that no hearing is necessary to resolve any disputed
facts, and I conclude based on the record that Palmetto correctly determined the effective
date and that Petitioner is not entitled to the July 30, 3009 effective date he seeks.
Specifically, CMS offered convincing evidence, which Petitioner did not rebut, that the
package Palmetto received from ADO on July 30, 2009 did not contain Petitioner’s
enrollment applications to establish his eligibility to participate in Medicare as a supplier
for ADO, and, moreover, that Palmetto received no such applications in July or August
2009, the time period during which an application submitted in July 2009 would have
been received.

> Palmetto approved the enrollment of the other ADO physician practitioner with
retrospective billing privileges beginning September 10, 2009. The other ADO
practitioner appealed that determination, and the appeal was assigned CRD Docket No.
C-10-528. CMS moved for dismissal or, in the alternative, summary affirmance in that
appeal on grounds identical to those CMS advances here. With my consent, CMS
submitted a single set of exhibits covering both appeals, and ADO submitted in response
a single combined brief and set of exhibits. The appeals were not consolidated, however.
lam this day also issuing a decision in the other appeal, Kate E. Paylo, DAB CR2232
(2010).
Petitioner with his request for hearing submitted the following materials: a letter from
Petitioner dated March 5, 2010 (including his attestation that he “signed two Medicare
form 855Is. I signed the original form in July 2009. . . . the second duplicate form for the
first form was signed in July of 2009 and the second was signed in September/October of
2009.”); a copy of a USPS Domestic Return Receipt for certified mail showing receipt by
Palmetto on July 30, 2009; and a form CMS-855I signed by Petitioner dated July 24,
2009 that Petitioner says was sent to Palmetto. I designate these materials as Petitioner’s
Exhibits 1 through 3, respectively. CMS objected to the admission of these materials as
barred by 42 C.F.R. § 498.56(e), which requires a supplier appealing an enrollment
determination to have “good cause” for submitting “new documentary evidence . . . for
the first time at the ALJ level.” Petitioner in his brief did not respond to CMS’s
objections nor allege having submitted these materials previously to Palmetto during
reconsideration.

I consider Petitioner’s March 5, 2010 letter offering his attestation (P. Ex. 1) to be in the
nature of an offer of testimony and thus not the “documentary evidence” addressed by
section 498.56(e). I agree with CMS that Petitioner failed to demonstrate (or allege)
good cause for his failure to submit the other two exhibits to Palmetto on reconsideration,
and I thus decline to admit Petitioner’s Exhibits 2 and 3. My ruling has little practical
effect, however, because CMS, which is not subject to the evidentiary restriction in
section 498.56(e), submitted these materials among its proposed exhibits. See CMS Ex.
18, at 8-37. In any event, however, the July 24, 2009 enrollment application and the
return receipt card are ultimately immaterial to my decision as they do not establish that
the application was mailed, let alone received by Palmetto, and CMS's evidence that no
such document was received in July or August 2009 is persuasive.

With his combined brief and appeal file, Petitioner submitted his Exhibits I — VII,
consisting of the following: enrollment applications for the other physician and for
Petitioner, signed July 24, 2009 (P. Exs. I and IL, respectively), their joint hearing request
(P. Ex. IID), lists of their unbilled charges (P. Exs. IV and V), a document Petitioner
identifies as a Palmetto notice, containing instructions for implementing regulatory
changes to the effective date regulations (P. Ex. VI), and monthly Medicare Advisories
for November 2008 through April 2009 (P. Ex. VII). Petitioner’s representative, the
ADO practice manager, reports being advised by the CRD staff attorney that the July 24,
2009 application (P. Ex. Il) would not be considered “new” evidence because Petitioner
had submitted it with his request for hearing. P. Br. at 1-2. As noted above, this
document is in the record in CMS’s exhibits in any case, and I do not discuss it further.*

* The advice Petitioner’s representative reports receiving from the staff attorney
obviously played no role in Petitioner’s earlier failure to have submitted this document to
Palmetto during reconsideration, and thus, even if I accepted that such advice was given,
it provides neither “good cause” for that failure nor a basis to ignore the strictures of
section 498.56(e).
Petitioner made no allegation of good cause for the failure to have submitted the other
exhibits on reconsideration. The exhibits that were issued by Palmetto or CMS (P. Exs.
VI and VID) are arguably not documentary evidence of disputed facts and are within
CMS’s control without a need for Petitioner to have submitted them to the contractor. In
any event, Petitioner’s Exhibits IV — VIII ultimately are not material either as they
provide no basis to grant the relief he seeks. As I explain further below, these exhibits go
to Petitioner’s argument that he did not have sufficient notice of a change to the
enrollment regulations that significantly shortened the period during which physicians
may retroactively bill for services. As that change was effected by regulation, I am
bound to apply it, notwithstanding Petitioner’s assertions that he and ADO were unaware
of it and that he incurred Medicare charges during the period before the beginning date of
his billing privileges.

III. Issues

1. Does Petitioner have a right to a hearing on the determination of the effective
date of his enrollment in Medicare?

2. Is CMS entitled to summary judgment that the assigned effective date is correct
as a matter of law based on undisputed facts?

3. Does the record support an earlier effective date?
IV. Analysis
1. Ideny CMS’s motion to dismiss.
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. Applicable regulation

The regulations governing ALJ hearings in provider/supplier appeals at Part 498 of 42
C.F.R. include among the “initial determinations” subject to appeal, “[t]he effective date
of a Medicare provider agreement or supplier approval.” 42 C.F.R. § 498.3(b)(15).

c. Discussion

CMS argues that I should dismiss the appeal because section 498.3(b)(15) permits
appeals only of denials of applications and not an appeal by a supplier like Petitioner
whose application is approved. CMS argues that this provision is meant to apply only to
those suppliers or providers subject to survey and certification (or accreditation by a
CMS-approved accrediting organization) as a basis for determining their participation in
Medicare and whose effective dates are governed by 42 C.F.R. § 489.13. CMS Br. at 13-
17. I reject that argument the reasons explained here.

The Departmental Appeals Board (Board) recently rejected CMS’s argument that
suppliers under Part 424 may not appeal effective date determinations, in Victor Alvarez,
M.D., DAB No. 2325 (2010), issued after CMS submitted its motion to dismiss in this
case. In Alvarez, the Board concluded that “a determination of a supplier’s effective date
of enrollment in Medicare is an initial determination subject to appeal rights under 42
C.F.R. Part 498.” Alvarez, DAB No. 2325, at 1. The Board explained that this
determination is consistent with the historical interpretation of hearing rights under
section 1866(h)(1)(A) and as discussed in the rulemaking process. Further, “while
section 498.3(b)(15) originally applied primarily to suppliers subject to survey and
certification, the term ‘supplier’ as used in 42 C.F.R. Part 498 was amended to cover all
Medicare suppliers, including physicians.” Jd. at 3.

In several prior decisions, I also came to the same conclusion. See, e.g., Michael Majette,
D.C., DAB CR2142 (2010); Eugene Rubach, M.D., DAB CR2125 (2010); Mobile Vision,
Inc., DAB CR2124 (2010). I likewise concluded that the wording of section 498.3(b)(15)
appears 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. I also concluded that the regulatory history of section
498.3(b)(15) did not support CMS’s argument. I moreover noted that CMS, in adopting
section 498.3(b)(15), 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. See, e.g.,
Michael Majette, D.C., DAB CR2142, at 4.

A legislative rule generally binds the agency that issues it, and the agency is legally
bound to follow its own regulations as long as they are in force. Cal. Dep’t of Soc.
Servs., DAB No. 1959 (2005); Hermina Traeye Mem’! Nursing Home, DAB No. 1810
(2002), citing Kenneth Culp Davis and Richard J. Pierce, Jr., Administrative Law Treatise
§ 6.5 (3 ed. 1994), aff’d Sea Island Comprehensive Healthcare Corp. v. U.S. Dep’t of
Health & Human Servs., 79 F. App’x 563 (4" Cir. 2003); 2 AM. JUR. 2d Administrative
Law § 236 (2010), available at WL AM. JUR. ADMINLAW § 236. Absent further
rulemaking, I am bound to follow the plain meaning of the regulation and, as the Board
mandated, permit an appeal by any provider or supplier dissatisfied with a determination
as to the effective date of its provider agreement or supplier approval.

I therefore deny CMS’s motion to dismiss on this basis.
2. I deny CMS’s motion for summary affirmance.

a. Applicable standard

CMS’s motion makes clear that the summary affirmance it seeks is in the nature of
summary judgment. The Board stated the standard 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. ... 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.... 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 Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations omitted).
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 assess credibility or evaluate the
weight of conflicting evidence. Holy Cross Village at Notre Dame, Inc., DAB No. 2291,
at 4-5 (2009).

b. Discussion

CMS argues that summary judgment is warranted because the documents Petitioner
submitted with his hearing request “do not create an issue of material fact” and “Palmetto
correctly determined the effective date.” CMS Br. at 17-18. CMS cites the declaration of
Robert Lash, an Operations Analyst with Palmetto’s Medicare Providers Enrollment
Department, describing Palmetto’s procedures for scanning and labeling each page of
incoming mail with identifiers that include the date of receipt. CMS Ex. 1. Mr. Lash
states that Palmetto’s mail records show that a package Palmetto received from ADO on
July 30, 2009 did not contain Petitioner’s application, and, further, that no application
was received from Petitioner in July or August 2009. Jd.

Nonetheless, CMS recognizes that the materials Petitioner cites on appeal and CMS
included among in is exhibits, when viewed most favorably to Petitioner, could tend to
support his assertion that a package containing his enrollment application was submitted
to Palmetto in July 2009. CMS Br. at 18; CMS Ex. 18, at 8-37 (return receipt and CMS
8551 for Petitioner dated July 24, 2009). From this evidence, which includes a certified
mail receipt, one could reasonably infer that Petitioner’s enrollment application was
mailed by certified mail and received by Palmetto on July 30, 2009. (I do not make such
a finding here; I only acknowledge that the record does not make such a finding beyond
reason.)

In considering whether to grant CMS’s motion for summary judgment, I do not weigh the
relative persuasiveness or strength of the evidence presented by the parties on a disputed
issue of material fact. I must instead view all evidence in the light most favorable to
Petitioner and draw all reasonable inferences in his favor. As the record and the parties’
contentions require me to analyze and address potentially conflicting evidence regarding
the content of the submission that Palmetto received on July 30, 2009, summary
judgment is not appropriate.

I therefore deny CMS’s motion for summary affirmance.

3. I conclude that, on the record before me, the regulations support the effective
date Palmetto assigned.

a. Further proceedings including a hearing are not necessary to resolve the
appeal on its merits.

I next consider whether further proceedings are needed to decide the case on the merits.
My Order required all parties to “exchange as a proposed exhibit the complete written
direct testimony of any proposed witness” which would generally serve as the witness’s
“statement in lieu of in-person testimony.” Order at 3. My Order further stated that an
in-person hearing to cross-examine witnesses would be held only if admissible written
direct testimony was submitted “and a party desires to cross-examine a witness or
witnesses.” Jd. (emphasis added). Neither party raised any objection to this process or
requested an exception.

CMS identified as its one witness Mr. Lash, the Palmetto Operations Analyst. Petitioner
identified four witnesses, consisting of himself, the other ADO physician practitioner
appealing an effective date determination, and three ADO employees. Petitioner did not
provide the written direct testimony of any of his proposed witnesses, although he did
submit his letter stating that he signed his enrollment application in July 2009. As
discussed above, I view this letter (and a similar letter from the other physician
practitioner) as a proffer of testimony.” However, since neither party requested the

> The combined brief on behalf of Petitioner and the other physician practitioner does not
indicate whether the other physician would testify on Petitioner’s behalf, or only in her
own appeal.
opportunity to cross-examine each other’s named witnesses, I find no need or purpose to
convene an in-person hearing. I therefore proceed to consider the merits of the case
based on the written record before me.

b. The record does not support an earlier effective date.

For the reasons explained below, I find that the unrebutted evidence establishes that the
package Palmetto received from ADO on July 30, 2009, with the certified mail receipt
Petitioner says accompanied his application, did not contain any application to enroll
Petitioner. Although Petitioner may have intended that his application (i.e., forms CMS
8551 and 855R) be submitted at that time, the evidence establishes that what ADO
submitted under that certified mail receipt was a form used to update its own enrollment
information (CMS 855B) that did not concern Petitioner’s enrollment. The evidence also
establishes that Palmetto did not receive an application to enroll Petitioner in July or
August 2009, the period in which Palmetto would have received an application mailed in
July 2009, when Petitioner asserts his was mailed, and, moreover, that Palmetto did
receive his approved application on October 21, 2009. Indeed, Petitioner now concedes
that the certified mail receipt was for a submission that did not contain his application,
and that he cannot demonstrate that Palmetto received his application at any time prior to
October 21, 2009.

As stated above, CMS may permit Petitioner to bill Medicare beginning 30 days prior to
the effective date of his enrollment, which is set as “the date of filing” (i-e., the date of
receipt) of an enrollment application “that was subsequently approved” by Palmetto (or
the date he first began furnishing services at a new practice location, if later, which was
not the case here). 42 C.F.R. §§ 424.521(a), 424.520(d); 73 Fed. Reg. at 69,769. I note
that this language could be interpreted to mean either the date the contractor received the
actual application it later approved, or the date it first received a complete application that
it later approved, even if duplicate copies of the application had to be submitted in the
interim. See 73 Fed. Reg. at 69,769 (date of filing is date contractor received an
application it “is able to process to approval”); Tri-Valley Family Medicine, Inc., DAB
CR2179, at 10-11 (2010) (regulatory language susceptible of either interpretation).

Based on the evidence showing that Palmetto did not receive Petitioner’s complete,
approvable enrollment application prior to October 21, 2009, I conclude that, under either
interpretation, there was no error in Palmetto’s determination of the effective date.

In making these findings, I give great credence to the declaration of Mr. Lash, the
Palmetto Operations Analyst. Mr. Lash provided a detailed and unrebutted explanation
of Palmetto’s procedures for processing and tracking incoming mail. CMS Ex. | (Lash
decl.). I find that his explanation convincingly supports my findings above.
Accordingly, I quote from his declaration at length.
10

Mr. Lash stated that Palmetto mail room workers “open each envelope received in the
mailroom” and “manually stamp the first page of each document contained in the
envelope with the last digit of the year and the day of year on which the document was
received, and with the clerk number of the mail room clerk who opens and scans the
item.” Jd. at 2. Mr. Lash used as an example a CMS-855B application that Palmetto
received from ADO on July 30, 2009, which CMS submitted as its Exhibit 2.° The first
page of this exhibit bears, at the bottom, the stamped number 9211-673. CMS Ex. 2, at 1.
As explained in the declaration, “‘9’ means the year 2009. 211 means the 211" day of
the year, or July 30.... Finally, 673 means it was scanned by clerk 673 ....” Id; CMS
Ex. 1, at 2. After the first page of each document in an envelope is manually stamped--

[t]he mail room worker then scans each document contained in a given
envelope with an image scanner. The image scanner automatically assigns
each document a Document Control Number (DCN) and places it into
Palmetto’s workflow system (called iFlow) as an item to be indexed. Each
item contained in a given envelope receives its own DCN. The DCN is a
unique 14-digit number that appears at the top of each page of the item.
The year and day of year Palmetto received the document also appears at
the top of the image of each page, along with the page number, with the
first page typically being P000. For example, with respect to CMS Ex. 2,
page 1 [the CMS 855B from ADO], the unique 14-digit DCN that appears
of the top of the page is 09215303100019. Also at the top of the page is
09211 (the year and day of year on which the document was received) and
P000 to indicate that it is the first page of the document.

CMS Ex. 1, at 2-3. Mr. Lash also stated that a scanned image of the envelope in which a
submission arrives “typically becomes either the first or last page of the image of the item
contained in the envelope.” Jd. at 3. “When multiple items are contained in a single
envelope,” he explained, “the envelope is scanned one time only, and included as an
image with only one of the items contained in that envelope.” Jd. The absence of an
image of an envelope with a particular item “means that the provider sent more than one
item that day and an image of the envelope is included with another item that was sent on
that day.” Id.

° The CMS 855B application is used by “[s]upplier groups and supplier organizations
[to] apply for Medicare enrollment” and “‘is not used to enroll individuals.” CMS
Medicare Program Integrity Manual, ch. 15, §§ 15.1.2, 15.3. The form CMS 855B that
Mr. Lash stated Palmetto received from ADO on July 30, 2009 “sought to delete one
practice address and to add another practice address.” CMS Ex. 1, at 5. Mr. Lash
reported that Palmetto processed this change by letter to ADO dated September 23, 2009.
Id.; CMS Ex. 3 (Palmetto letter to ADO Sept. 23, 2009).
11

I note that, consistent with Mr. Lash’s declaration, the form CMS 855B from ADO that
CMS submitted as its Exhibit 2 indeed bears at the top of the first page the inscription
“092 15303100019 09211 P000” and that subsequent pages bear consecutive page
numbers P001 through P046, with page P046 being an image of an envelope from ADO
addressed to Palmetto in Columbus, Ohio, bearing the metered postmark date July 28,
2009. CMS Ex. 2, at 1-47. The envelope was sent by certified mail, return receipt
requested, and bears certified mail tracking number 7009 0820 0000 3157 7973. Id. at
47. As CMS notes, this is the same certified mail tracking number as appears on the
return receipt card that Petitioner submitted with the request for hearing and which,
according to the request for hearing, accompanied the package that included his
enrollment application form CMS 8551. RH at 1; CMS Br. at 6; CMS Ex. 18, at 8
(receipt card).

Mr. Lash further stated that after an item is received, stamped, and scanned--

the mail room worker enters the iFlow system and keys in the DCN and
provider name associated with each item. When the mail room worker
finishes keying in the item in iFlow, the image of each item is placed into
the Prescreen phase. . . . A provider enrollment worker . . . then opens each
image in the Presceen phase, keys the information associated with it (DCN,
date received, provider name, etc.) into the tracking system (called Proven
Track) and assigns it to an enrollment analyst for processing. Typically, the
provider enrollment worker assigns documents involving the same provider
to the same enrollment analyst. Items involving the same provider names
are manually linked together in the Proven Track system.

CMS Ex. 1, at 3-4. The scanned images of items received, he reported, can be
searched for by provider name or date received. Jd. at 3.

Based on this background information, Mr. Lash explained how he determined that no
other documents besides the CMS 855B for ADO were contained in the envelope
received on July 30, 2009, and, further, that no applications on behalf of Petitioner were
received in July or August 2009 (which, as noted above, was when Palmetto would
presumably have received Petitioner’s application if it had been mailed on July 27, 2009,
as Petitioner asserts). Mr. Lash stated:

On April 16, 2010, I entered the Proven Track system to search for any
items received from [ADO] on July 30, 2009. . . the only item received
from [ADO] on July 30, 2009 is marked as CMS Ex. 2. That item is a 46-
page CMS-855B application . . . the item was assigned DCN
09215303100019. .. . No other items were imaged or documented as
having been received from [ADO] on July 30, 2009. Specifically, no CMS-
8551 or CMS-855R applications relating to [Petitioner or the other
physician practitioner] were imaged or documented as being received by
12

Palmetto on July 30, 2009. I also confirmed that, aside from the CMS-
855B application, Palmetto did not receive any items from either
[ADO] or Doctors Pain Center, LLC during July 2009 and August
2009. I also confirmed that Palmetto did not receive any items relating
to [Petitioner or the other physician practitioner] in July 2009 or
August 2009.

Id. at 4 (emphasis added).

As to Petitioner’s enrollment, Mr. Lash stated that, “[o]n October 21, 2009, Palmetto
received three applications for [Petitioner] from [ADO] and Doctors Pain Center, LLC.”
Id. at 6-7. These applications comprised “a CMS-855] application to enroll [Petitioner]
in the Medicare program . . . a CMS-855R application to enroll [Petitioner] as a supplier
for Doctors Pain Center, LLC . . . [and] a CMS-855R application to enroll [Petitioner] as
a supplier for [ADO].” Jd. citing CMS Exs. 9, 11, 13 (CMS 8551 and two CMS 855Rs
for Petitioner, plus scan of envelope). The three documents were assigned consecutive
DCNs (09299303 100021, 09299303 100022, 09299303 100023, respectively) and each
“was stamped 9294, indicating that it was received in 2009 on the 294" day of the year
(October 21).” Id. at 7-8. Palmetto processed the CMS 8551 for Petitioner and the CMS
855R to enroll Petitioner as a supplier for ADO and Petitioner “received an effective date
of September 21, 2009.” /d. at 8, citing CMS Ex. 10 (Palmetto letter Nov. 4, 2009 to
ADO stating that Petitioner had been “added to the roster” of ADO effective September
21, 2009 and was approved to bill the Medicare program under his NPI). The CMS 855R
to enroll Petitioner as a supplier for Doctors Pain Center, LLC was returned “for failure
to date his signature in section 4A.” Jd. at 7, citing CMS Ex. 12 (Palmetto letter Oct. 28,
2009 to Doctors Pain Center, LLC).’

Notably, Mr. Lash stated that the envelope Palmetto received from ADO on July 30,
2009 containing the CMS 855B for ADO shows postage of $7.34. CMS Ex. 1, at 4-5,
citing CMS Ex. 2, at 47 (envelope). The envelope Palmetto received from ADO on
October 21, 2009, containing the three applications for Petitioner, shows postage of
$7.85. CMS Ex. 1, at 8, citing CMS Ex. 13, at 17. This difference in postage supports
Mr. Lash’s report that the later submission consisted of more documents (three
applications totaling 34, 5 and 16 pages, respectively) than the earlier submission (one
application totaling 46 pages). CMS Ex. 1, at 4, 6-8, citing CMS Exs. 9, 11, 13. This is
consistent with my finding that the package received July 30, 2009 did not contain an
application for Petitioner.

7 Petitioner’s request for hearing did not address the application to enroll as a supplier for
Doctors Pain Center, LLC.
13

L also note that of the three applications for Petitioner that Mr. Lash reported were
received on October 21, 2009, only the last one (DCN 09299303 100023) contains a scan
of an envelope. CMS Ex. 13. The presence of one envelope in three items with
consecutive DCNs is consistent with Mr. Lash’s statement that the envelope received on
October 9, 2009 contained the three applications that ADO submitted for Petitioner. The
applications that CMS submitted as exhibits are also consistent with the descriptions in
Mr. Lash’s declaration. I find that the information in Mr. Lash’s declaration and CMS’s
exhibits convincingly establishes that the package ADO sent to Palmetto by certified mail
that Palmetto received on July 30, 2009 did not contain any enrollment applications for
Petitioner.

Finally, in Petitioner’s response to CMS’s motion for summary affirmance, Petitioner
appears to have abandoned the assertion that the package sent with the certified mail
receipt dated July 20, 2009 contained his enrollment application. He states instead that
“Tt]he original certified mail tracking number we had originally thought belonged to the
July applications was incorrect” and that the certified mail tracking number on the receipt
belonged to another submission, which Petitioner states was “another application we had
sent during the same time period.” P. Br. at 2. Presumably, Petitioner here refers to the
CMS-855B for ADO (but not Petitioner) that Palmetto received on July 30, 2009.
Petitioner concedes that ““ADO cannot prove Palmetto CMS received the original
applications with the July 24, 2009 signature due to administrative clerical errors on our
part.” Id. As discussed, a supplier’s effective date is conditioned upon the contractor’s
receipt of the supplier’s enrollment application. In light of the acknowledged absence of
any evidence that Palmetto actually received an approvable application on behalf of
Petitioner at any time prior to October 21, 2009, and in light of CMS’s evidence that
Palmetto received no such application during July or August 2009, I have no choice but
to sustain CMS’s and Palmetto’s determination of Petitioner’s effective date. Petitioner’s
statement that he signed an original form CMS 855] in July 2009 and duplicates in July
and “‘September/October 2009,” which CMS does not dispute, does not establish that
Palmetto actually received any such application prior to October 21, 2009.

c. Petitioner’s equitable arguments provide no basis to set an earlier effective
date.

Petitioner states that he has over $94,000 of unbilled charges with ADO for patient visits
prior to his billing date and that the resulting lack of funds has resulted in “severe
hardship” for ADO. P. Br. at 3-4. He also states that ADO was not aware of the changes
to the enrollment regulations that reduced the available period for retrospective billing for
physician suppliers from up to 27 months to 30 days, the period granted him. Petitioner
complains that monthly Medicare Advisories for Ohio and West Virginia providers
during the period November 2008 through April 2009 failed to mention this change. Jd.
at 3, citing P. Ex. VII (“Medicare Advisory” tables of contents).
14

Previous regulations no longer in effect did authorize CMS to grant physician suppliers
up to 27 months of retroactive billing privileges; however, the current regulations, which
became effective January 1, 2009, removed that provision and the authority it provided.
73 Fed. Reg. at 69,940. The availability of the former, lengthier period for retrospective
billing meant that issues relating to the effective dates of supplier enrollments and billing
privileges were unlikely to arise in appeals such as this. With the shorter time frame for
retrospective billing, the applicable effective date has obviously become more important.

The current regulations at section 424.520(d) and 424.52 1(a) that establish effective dates
and limit retrospective billing, however, are binding on me. I can neither alter nor
deviate from their explicit limitation on Petitioner’s ability to bill for services to 30 days
prior to the date that Palmetto received his approved application. Even if Petitioner could
show that he received erroneous advice on retrospective billing, that would not permit me
to grant an earlier effective date. Estoppel against the federal government, if available at
all, is presumably unavailable absent “‘affirmative misconduct,” such as fraud. See, e.g.,
Pac. Islander Council of Leaders, DAB No. 2091, at 12 (2007); Office of Pers. Mgmt. v.
Richmond, 496 U.S. 414, 421 (1990). While I understand Petitioner’s confusion over
what he perceives as an unanticipated change in the way Medicare had done business, I
have no authority to extend the retroactive billing period for Petitioner in a manner
contrary to the regulations. The frustration that Petitioner and the practice manager
describe does not permit me to ignore the unmistakable requirements of the regulations
governing his enrollment in Medicare, by which I am bound.*

® CMS did not seek an opportunity to respond to Petitioner’s brief and thus did not
address Petitioner’s claim that Medicare publications failed to provide adequate notice of
the reduction in the available period of retrospective billing. I note, however, that as a
Medicare supplier, Petitioner was charged with knowing, and had constructive notice of,
the requirements for billing for services. See Waterfront Terrace, Inc., DAB No. 2320, at
7 (2010), citing Heckler v. Cmty. Health Servs. of Crawford County, 467 U.S. 51, 64
(1984) (“As a participant in the Medicare program, respondent had a duty to familiarize
itself with the legal requirements” of the program.); see also Manor of Wayne Skilled
Nursing & Rehab., DAB No. 2249, at 10-11 (2009) and Regency on the Lake, DAB No.
2205, at 5-6 (2008) ([F]acilities participating in Medicare had constructive notice of
regulations.).
15

IV. Conclusion

The evidence provides no basis to find that an approvable application for Petitioner’s
enrollment was received prior to October 21, 2009. I therefore sustain the determination
of the effective date of Petitioner’s enrollment and the grant of retrospective billing
privileges.

/s/
Leslie A. Sussan
Board Member


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Kate E. Paylo, D.O.,
(NPI #1447287958)
Petitioner,

Vv.

Centers for Medicare & Medicaid Services.

Docket No. C-10-528

Decision No. CR2232

Date: September 1, 2010

DECISION

Kate E. Paylo, D.O., Petitioner, appeals the determination of Palmetto, GBA (Palmetto),

a Medicare contractor, granting her application
authorizing bi

or enrollment as a Medicare supplier and

ling privileges beginning September 10, 2009, which Palmetto determined

was 30 days prior to its receipt of her approved application on October 9, 2009. I deny

the Centers for Medicare & Medicaid Services’

(CMS’s) motion for dismissal or, in the

alternative, summary affirmance. I decide the case on the written record and sustain

CMS’s determination about the effective date o
correction to the retrospective billing date).

' The parties use the term “effective date” to re

Petitioner’s enrollment (with a

er to the date on which Petitioner could

bill for Medicare services. See, e.g., CMS Ex. 5 (Palmetto letter to ADO Oct. 31, 2009
assigning “Effective Date” of Sept. 10, 2009). Under the regulations, the effective date
would ordinarily be the date Palmetto received Petitioner’s application that it approved
and therefore the same as the date of Petitioner’s enrollment in Medicare. CMS and
Palmetto are authorized, however, to permit Petitioner to “retrospectively bill” for

services for up to 30 days prior to that effective
§ 424.521(a). For clarity, I use “effective date”

date, as they did here. 42 C.F.R.
to refer to the effective date of

enrollment, and not the date on which retrospective billing begins.
I. Applicable law

The effective dates of Medicare enrollment and billing privileges are established by 42
C.F.R. §§ 424.520 and 424.521. Section 424.520(d) provides that the effective date of
enrollment for physician, nonphysician practitioners, and their organizations is “the /ater
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) (emphasis added). Certain suppliers, including
physicians, may be permitted to bill retrospectively for up to 30 days prior to the effective
date of their enrollment “if circumstances precluded enrollment in advance of providing
services to Medicare beneficiaries,” or 90 days in the event of certain Presidentially-
declared disaster situations. 42 C.F.R. § 424.521(a).

Il. Background

Petitioner, a physician practitioner with Anesthesiologists D.O., Inc. d/b/a Doctors Pain
Clinic (ADO),” states that on July 27, 2009, ADO submitted to Palmetto, by certified
mail, a package containing six Medicare applications: individual enrollment application
forms (CMS 8551) for Petitioner and another physician practitioner with ADO, and four
application forms (CMS 855R) to enroll Petitioner and the other practitioner as suppliers
with both ADO and Doctors Pain Center, LLC, another corporate entity. Petitioner
Request for Hearing (RH); Petitioner Brief (P. Br.). Petitioner states that Palmetto
received this package on July 30, 2009, and Petitioner submitted a certified mail return
receipt card as evidence of the receipt date. Petitioner states that ADO’s employee in
charge of credentials called Palmetto Provider Enrollment and was told that the
contractor did not have the applications, and that ADO thus resubmitted these
applications with new signatures in September 2009. Jd. In a letter dated October 31,
2009, Palmetto advised that Petitioner had been “added to the roster” of ADO with
billing privileges effective September 10, 2009 (i.e., 30 days prior to Palmetto’s alleged
date of receipt of her application on October 9, 2009).? CMS Ex. 5. Palmetto sustained

> The request for hearing was submitted on letterhead of Doctors Pain Clinic by the
practice administrator for “Anesthesiologists D.O./Doctors Pain Clinic” who stated that it
was filed by Anesthesiologists D.O. For the sake of convenience, we refer to these
entities simply as ADO.

> Palmetto approved the enrollment of the other ADO physician practitioner with

retrospective billing privileges beginning September 21, 2009, 30 days prior to

Palmetto’s receipt of his application. The other ADO practitioner appealed that
(continued...)
that determination in a reconsideration decision dated January 7, 2010, on the grounds
that the date assigned for the beginning of billing privileges was 30 days prior to
Palmetto’s receipt of Petitioner’s application, and that Petitioner did not have a right to
appeal the effective date determination.* CMS Ex. 15.

Petitioner filed a hearing request seeking billing privileges based on the application
submitted to Palmetto July 27, 2009. On April 1, 2010, I issued an Acknowledgment and
Pre-Hearing Order (Order) setting procedures for the appeal, and CMS, in accord with
my Order, submitted on May 3, 2010 its motion for dismissal or summary affirmance and
supporting brief (CMS Br.), and its proposed exhibits 1 through 18, including the
declaration of one proposed witness. On May 28, 2010, Petitioner submitted her brief,
her proposed exhibits designated I through VIL, and a proposed witness list. Petitioner
did not submit any written direct testimony of her proposed witnesses, as required by my
Order.

In its brief, CMS argues that there is no right for a supplier to appeal the effective date of
Medicare enrollment and billing privileges, and, alternatively, that the effective date
determination here is entitled to summary affirmance in the nature of summary judgment.
For the reasons discussed below, I deny CMS’s motion to dismiss. I also deny CMS’s
motion for summary affirmance, as I find that Petitioner has raised a dispute about a
material fact. However, I further find that no hearing is necessary to resolve any disputed
facts, and I conclude based on the record that Palmetto correctly determined the effective
date and that Petitioner is not entitled to the July 30, 3009 effective date she seeks.
Specifically, CMS offered convincing evidence, which Petitioner did not rebut, that the

3 (...continued)

determination, and the appeal was assigned CRD Docket No. C-10-529. CMS moved for
dismissal or, in the alternative, summary affirmance in that appeal on grounds identical to
those CMS advances here. With my consent, CMS submitted a single set of exhibits
covering both appeals, and ADO submitted in response a single combined brief and set of
exhibits. The appeals were not consolidated, however. I am this day also issuing a
decision in the other appeal, Crawford F. Barnett, M.D., DAB CR2233 (2010).

* Tnote that 30 days prior to October 9, 2009 was actually September 9, 2009. Since
CMS acknowledges that Palmetto received Petitioner’s approved application October 9,
2009 and granted her a 30-day period of retrospective billing prior to the receipt of her
application, I assume that the assignment of September 10 for retrospective billing was a
clerical error. See CMS brief in support of its motion (CMS Br.) at 1, 6, 10-11, 14; see
also Docket No. C-10-529 (30 day period of retrospective billing beginning September
21, 2009 based on Palmetto’s receipt of approved application on October 21, 2009). I
therefore correct that date of retrospective billing to begin September 9, 2009 without
further discussion.

package Palmetto received from ADO on July 30, 2009 did not contain Petitioner’s
enrollment applications to establish her eligibility to participate in Medicare as a supplier
‘or ADO, and, moreover, that Palmetto received no such application in July or August
2009, the time period during which an application submitted in July 2009 would have
been received.

Petitioner with her request for hearing submitted the following materials: a letter from
Petitioner dated March 5, 2010 (including her attestation that she “signed two Medicare
orm 855]Is. I signed the original form in July 2009. . . . the second duplicate form for the
first form was signed in July of 2009 and the second was signed in September/October of
2009.”); a copy of a USPS Domestic Return Receipt for certified mail showing receipt by
Palmetto on July 30, 2009; and a form CMS-855I signed by Petitioner dated July 24,
2009 that Petitioner says was sent to Palmetto. I designate these materials as Petitioner’s
Exhibits 1 through 3, respectively. CMS objected to the admission of these materials as
barred by 42 C.F.R. § 498.56(e), which requires a supplier appealing an enrollment
determination to have “good cause” for submitting “new documentary evidence . . . for
the first time at the ALJ level.” Petitioner in her brief did not respond to CMS’s
objections nor allege having submitted these materials previously to Palmetto during
reconsideration.

I consider Petitioner’s March 5, 2010 letter offering her attestation (P. Ex. 1) to be in the
nature of an offer of testimony and thus not the “documentary evidence” addressed by
section 498.56(e). I agree with CMS that Petitioner failed to demonstrate (or allege)
good cause for her failure to submit the other two exhibits to Palmetto on reconsideration,
and I thus decline to admit Petitioner’s Exhibits 2 and 3. My ruling has little practical
effect, however, because CMS, which is not subject to the evidentiary restriction in
section 498.56(e), submitted these materials among its proposed exhibits. See CMS Ex.
17, at 8-37. In any event, however, the July 24, 2009 enrollment application and the
return receipt card are ultimately immaterial to my decision as they do not establish that
the application was mailed, let alone received by Palmetto, and CMS's evidence that no
such document was received in July or August 2009 is persuasive.

With her combined brief and appeal file, Petitioner submitted her Exhibits I— VI,
consisting of the following: enrollment applications for Petitioner and the other
physician signed July 24, 2009 (P. Exs. I and II, respectively), their joint hearing request
(P. Ex. IID), lists of their unbilled charges (P. Exs. IV and V), a document Petitioner
identifies as a Palmetto notice, containing instructions for implementing regulatory
changes to the effective date regulations (P. Ex. VI), and monthly Medicare Advisories
for November 2008 through April 2009 (P. Ex. VII). Petitioner’s representative, the
ADO practice manager, reports being advised by the CRD staff attorney that the July 24,
2009 application (P. Ex. I) would not be considered “new” evidence because Petitioner
had submitted it with her request for hearing. P. Br. at 1-2. As noted above, this
document is in the record in CMS’s exhibits in any case, and I do not discuss it further.”
Petitioner made no allegation of good cause for the failure to have submitted the other
exhibits on reconsideration. The exhibits that were issued by Palmetto or CMS (P. Exs.
VI and VII) are arguably not documentary evidence of disputed facts and are within
CMS’s control without a need for Petitioner to have submitted them to the contractor. In
any event, Petitioner’s Exhibits [V — VIII ultimately are not material either as they
provide no basis to grant the relief she seeks. As I explain further below, these exhibits
go to Petitioner’s argument that she did not have sufficient notice of a change to the
enrollment regulations that significantly shortened the period during which physicians
may retroactively bill for services. As that change was effected by regulation, I am
bound to apply it, notwithstanding Petitioner’s assertions that she and ADO were
unaware of it and that she incurred Medicare charges during the period before the
beginning date of her billing privileges.

III. Issues

1. Does Petitioner have a right to a hearing on the determination of the effective
date of her enrollment in Medicare?

2. Is CMS entitled to summary judgment that the assigned effective date is correct
as a matter of law based on undisputed facts?

3. Does the record support an earlier effective date?
IV. Analysis
1. Ideny CMS’s motion to dismiss.
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.”

> The advice Petitioner’s representative reports receiving from the staff attorney
obviously played no role in Petitioner’s earlier failure to have submitted this document to
Palmetto during reconsideration, and thus, even if I accepted that such advice was given,
it provides neither “good cause” for that failure nor a basis to ignore the strictures of
section 498.56(e).
b. Applicable regulation

The regulations governing ALJ hearings in provider/supplier appeals at Part 498 of 42
C.F.R. include among the “initial determinations” subject to appeal, “[t]he effective date
of a Medicare provider agreement or supplier approval.” 42 C.F.R. § 498.3(b)(15).

c. Discussion

CMS argues that I should dismiss the appeal because section 498.3(b)(15) permits
appeals only of denials of applications and not an appeal by a supplier like Petitioner
whose application is approved. CMS argues that this provision is meant to apply only to
those suppliers or providers subject to survey and certification (or accreditation by a
CMS-approved accrediting organization) as a basis for determining their participation in
Medicare and whose effective dates are governed by 42 C.F.R. § 489.13. CMS Br. at 13-
16. I reject that argument the reasons explained here.

The Departmental Appeals Board (Board) recently rejected CMS’s argument that
suppliers under Part 424 may not appeal effective date determinations, in Victor Alvarez,
M.D., DAB No. 2325 (2010), issued after CMS submitted its motion to dismiss in this
case. In Alvarez, the Board concluded that “a determination of a supplier’s effective date
of enrollment in Medicare is an initial determination subject to appeal rights under 42
C.F.R. Part 498.” Alvarez, DAB No. 2325, at 1. The Board explained that this
determination is consistent with the historical interpretation of hearing rights under
section 1866(h)(1)(A) and as discussed in the rulemaking process. Further, “while
section 498.3(b)(15) originally applied primarily to suppliers subject to survey and
certification, the term ‘supplier’ as used in 42 C.F.R. Part 498 was amended to cover all
Medicare suppliers, including physicians.” Jd. at 3.

In several prior decisions, I also came to the same conclusion. See, e.g., Michael Majette,
D.C., DAB CR2142 (2010); Eugene Rubach, M.D., DAB CR2125 (2010); Mobile Vision,
Inc., DAB CR2124 (2010). I likewise concluded that the wording of section 498.3(b)(15)
appears 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. I also concluded that the regulatory history of section
498.3(b)(15) did not support CMS’s argument. I moreover noted that CMS, in adopting
section 498.3(b)(15), 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. See, e.g.,
Michael Majette, D.C., DAB CR2142, at 4.

A legislative rule generally binds the agency that issues it, and the agency is legally
bound to follow its own regulations as long as they are in force. Cal. Dep’t of Soc.
Servs., DAB No. 1959 (2005); Hermina Traeye Mem’! Nursing Home, DAB No. 1810
(2002), citing Kenneth Culp Davis and Richard J. Pierce, Jr., Administrative Law Treatise
§ 6.5 (3% ed. 1994), aff’d Sea Island Comprehensive Healthcare Corp. v. U.S. Dep't of
Health & Human Servs., 79 F. App’x 563 (4 Cir. 2003); 2 AM. JUR. 2d Administrative
Law § 236 (2010), available at WL AM. JUR. ADMINLAW § 236. Absent further
rulemaking, I am bound to follow the plain meaning of the regulation and, as the Board
mandated, permit an appeal by any provider or supplier dissatisfied with a determination
as to the effective date of its provider agreement or supplier approval.

I therefore deny CMS’s motion to dismiss on this basis.

2. I deny CMS’s motion for summary affirmance.

a. Applicable standard

CMS’s motion makes clear that the summary affirmance it seeks is in the nature of
summary judgment. The Board stated the standard 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. ... 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. ... 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 Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations omitted).
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 assess credibility or evaluate the
weight of conflicting evidence. Holy Cross Village at Notre Dame, Inc., DAB No. 2291,
at 4-5 (2009).

b. Discussion

CMS argues that summary judgment is warranted because the documents Petitioner
submitted with her hearing request “do not create an issue of material fact” and “Palmetto
correctly determined the effective date.” CMS Br. at 17-18. CMS cites the declaration of
Robert Lash, an Operations Analyst with Palmetto’s Medicare Providers Enrollment
Department, describing Palmetto’s procedures for scanning and labeling each page of
incoming mail with identifiers that include the date of receipt. CMS Ex. 1. Mr. Lash
stated that Palmetto’s mail records show that a package Palmetto received from ADO on
July 30, 2009 did not contain Petitioner’s application, and, further, that no application
was received from Petitioner in July or August 2009. Jd.

Nonetheless, CMS recognizes that the materials Petitioner cites on appeal and CMS
included among its exhibits, when viewed most favorably to Petitioner, could tend to
support her assertion that a package containing her enrollment application was submitted
to Palmetto in July 2009. CMS Br. at 18; CMS Ex. 17, at 8-37 (return receipt and CMS
8551 for Petitioner dated July 24, 2009). From this evidence, which includes a certified
mail receipt, one could reasonably infer that Petitioner’s enrollment application was
mailed by certified mail and received by Palmetto on July 30, 2009. (I do not make such
a finding here; I only acknowledge that the record does not make such a finding beyond
reason.)

In considering whether to grant CMS’s motion for summary judgment, I do not weigh the
relative persuasiveness or strength of the evidence presented by the parties on a disputed
issue of material fact. I must instead view all evidence in the light most favorable to
Petitioner and draw all reasonable inferences in her favor. As the record and the parties’
contentions require me to analyze and address potentially conflicting evidence regarding
the content of the submission that Palmetto received on July 30, 2009, summary
judgment is not appropriate.

I therefore deny CMS’s motion for summary affirmance.

3. I conclude that, on the record before me, the regulations support the effective
date Palmetto assigned.

a. Further proceedings including a hearing are not necessary to resolve the
appeal on its merits.

I next consider whether further proceedings are needed to decide the case on the merits.
My Order required all parties to “exchange as a proposed exhibit the complete written
direct testimony of any proposed witness” which would generally serve as the witness’s
“statement in lieu of in-person testimony.” Order at 3. My Order further stated that an
in-person hearing to cross-examine witnesses would be held only if admissible written
direct testimony was submitted “and a party desires to cross-examine a witness or
witnesses.” Jd. (emphasis added). Neither party raised any objection to this process or
requested an exception.
CMS identified as its one witness Mr. Lash, the Palmetto Operations Analyst. Petitioner
identified four witnesses, consisting of herself, the other ADO physician practitioner
appealing an effective date determination, and three ADO employees. Petitioner did not
provide the written direct testimony of any of her proposed witnesses, although she did
submit her letter stating that she signed her enrollment application in July 2009. As
discussed above, I view this letter (and a similar letter from the other physician
practitioner) as a proffer of testimony.° However, since neither party requested the
opportunity to cross-examine each other’s named witnesses, I find no need or purpose to
convene an in-person hearing. I therefore proceed to consider the merits of the case
based on the written record before me.

b. The record does not support an earlier effective date.

For the reasons explained below, I find that the unrebutted evidence establishes that the
package Palmetto received from ADO on July 30, 2009, with the certified mail receipt
Petitioner says accompanied her application, did not contain any application to enroll
Petitioner. Although Petitioner may have intended that her application (i.e., forms CMS
8551 and 855R) be submitted at that time, the evidence establishes that what ADO
submitted under that certified mail receipt was a form used to update its own enrollment
information (CMS 855B) that did not concern Petitioner’s enrollment. The evidence also
establishes that Palmetto did not receive an application to enroll Petitioner in July or
August 2009, the period in which Palmetto would have received an application mailed in
July 2009, when Petitioner asserts hers was mailed, and, moreover, that Palmetto did
receive her approved application on October 9, 2009. Indeed, Petitioner now concedes
that the certified mail receipt was for a submission that did not contain her application,
and that she cannot demonstrate that Palmetto received her application at any time prior
to October 9, 2009.

As stated above, CMS may permit Petitioner to bill Medicare beginning 30 days prior to
the effective date of her enrollment, which is set as “the date of filing” (i.e., the date of
receipt) of an enrollment application “that was subsequently approved” by Palmetto (or
the date she first began furnishing services at a new practice location, if later, which was
not the case here). 42 C.F.R. §§ 424.521(a), 424.520(d); 73 Fed. Reg. at 69,769. I note
that this language could be interpreted to mean either the date the contractor received the
actual application it later approved, or the date it first received a complete application that
it later approved, even if duplicate copies of the application had to be submitted in the
interim. See 73 Fed. Reg. at 69,769 (date of filing is date contractor received an

° The combined brief on behalf of Petitioner and the other physician practitioner does not
indicate whether the other physician would testify on Petitioner’s behalf, or only in his
own appeal.
10

application it “is able to process to approval”); Tri-Valley Family Medicine, Inc., DAB
CR2179, at 10-11 (2010) (regulatory language susceptible of either interpretation).
Based on the evidence showing that Palmetto did not receive Petitioner’s complete,
approvable enrollment application prior to October 9, 2009, I conclude that, under either
interpretation, there was no error in Palmetto’s determination of the effective date.

In making these findings, I give great credence to the declaration of Mr. Lash, the
Palmetto Operations Analyst. Mr. Lash provided a detailed and unrebutted explanation
of Palmetto’s procedures for processing and tracking incoming mail. CMS Ex. | (Lash
decl.). I find that his explanation convincingly supports my findings above.
Accordingly, I quote from his declaration at length.

Mr. Lash stated that Palmetto mail room workers “open each envelope received in the
mailroom” and “manually stamp the first page of each document contained in the
envelope with the last digit of the year and the day of year on which the document was
received, and with the clerk number of the mail room clerk who opens and scans the
item.” Jd. at 2. Mr. Lash used as an example a CMS 855B application that Palmetto
received from ADO on July 30, 2009, which CMS submitted as its Exhibit 2.7 The first
page of this exhibit bears, at the bottom, the stamped number 9211-673. CMS Ex. 2, at 1.
As explained in the declaration, ““9’ means the year 2009. 211 means the 211" day of
the year, or July 30.... Finally, 673 means it was scanned by clerk 673 ....” Id; CMS
Ex. 1, at 2. After the first page of each document in an envelope is manually stamped--

[t]he mail room worker then scans each document contained in a given
envelope with an image scanner. The image scanner automatically assigns
each document a Document Control Number (DCN) and places it into
Palmetto’s workflow system (called iFlow) as an item to be indexed. Each
item contained in a given envelope receives its own DCN. The DCN is a
unique 14-digit number that appears at the top of each page of the item.
The year and day of year Palmetto received the document also appears at
the top of the image of each page, along with the page number, with the
first page typically being P000. For example, with respect to CMS Ex. 2,
page 1 [the CMS 855B from ADO], the unique 14-digit DCN that appears

7 The CMS 855B application is used by “[s]upplier groups and supplier organizations
[to] apply for Medicare enrollment” and “‘is not used to enroll individuals.” CMS
Medicare Program Integrity Manual, ch. 15, §§ 15.1.2, 15.3. The form CMS 855B that
Mr. Lash stated Palmetto received from ADO on July 30, 2009 “sought to delete one
practice address and to add another practice address.” CMS Ex. 1, at 5. Mr. Lash
reported that Palmetto processed this change by letter to ADO dated September 23, 2009.
Id.; CMS Ex. 3 (Palmetto letter to ADO Sept. 23, 2009).

11

on the top of the page is 09215303100019. Also at the top of the page is
09211 (the year and day of year on which the document was received) and
P000 to indicate that it is the first page of the document.

CMS Ex. 1, at 2-3. Mr. Lash also stated that a scanned image of the envelope in which a
submission arrives “typically becomes either the first or last page of the image of the item
contained in the envelope.” Jd. at 3. “When multiple items are contained in a single
envelope,” he explained, “the envelope is scanned one time only, and included as an
image with only one of the items contained in that envelope.” Jd. The absence of an
image of an envelope with a particular item “means that the provider sent more than one
item that day and an image of the envelope is included with another item that was sent on
that day.” Id.

I note that, consistent with Mr. Lash’s declaration, the form CMS 855B from ADO that
CMS submitted as its Exhibit 2 indeed bears at the top of the first page the inscription
“092 15303100019 09211 P000” and that subsequent pages bear consecutive page
numbers P001 through P046, with page P046 being an image of an envelope from ADO
addressed to Palmetto in Columbus, Ohio, bearing the metered postmark date July 28,
2009. CMS Ex. 2, at 1-47. The envelope was sent by certified mail, return receipt
requested, and bears certified mail tracking number 7009 0820 0000 3157 7973. Id. at
47. As CMS notes, this is the same certified mail tracking number as appears on the
return receipt card that Petitioner submitted with the request for hearing and which,
according to the request for hearing, accompanied the package that included her
enrollment application form CMS 855]. RH at 1; CMS Br. at 6; CMS Ex. 17, at 8
(receipt card).

Mr. Lash further stated that after an item is received, stamped, and scanned--

the mail room worker enters the iFlow system and keys in the DCN and
provider name associated with each item. When the mail room worker
finishes keying in the item in iFlow, the image of each item is placed into
the Prescreen phase. .. . A provider enrollment worker . . . then opens each
image in the Presceen phase, keys the information associated with it (DCN,
date received, provider name, etc.) into the tracking system (called Proven
Track) and assigns it to an enrollment analyst for processing. Typically, the
provider enrollment worker assigns documents involving the same provider
to the same enrollment analyst. Items involving the same provider names
are manually linked together in the Proven Track system.

CMS Ex. 1, at 3-4. The scanned images of items received, he reported, can be
searched for by provider name or date received. Jd. at 3.
12

Based on this background information, Mr. Lash explained how he determined that no
other documents besides the CMS 855B for ADO were contained in the envelope
received on July 30, 2009, and, further, that no applications on behalf of Petitioner were
received in July or August 2009 (which, as noted above, was when Palmetto would
presumably have received Petitioner’s application if it had been mailed on July 27, 2009,
as Petitioner asserts). Mr. Lash stated:

On April 16, 2010, I entered the Proven Track system to search for any
items received from [ADO] on July 30, 2009. . . the only item received
from [ADO] on July 30, 2009 is marked as CMS Ex. 2. That item is a 46-
page CMS-855B application . . . the item was assigned DCN
09215303100019. .. . No other items were imaged or documented as
having been received from [ADO] on July 30, 2009. Specifically, no CMS-
8551 or CMS-855R applications relating to [Petitioner or the other
physician practitioner] were imaged or documented as being received by
Palmetto on July 30, 2009. I also confirmed that, aside from the CMS-
855B application, Palmetto did not receive any items from either
[ADO] or Doctors Pain Center, LLC during July 2009 and August
2009. I also confirmed that Palmetto did not receive any items relating
to [Petitioner or the other physician practitioner] in July 2009 or
August 2009.

Id. at 4 (emphasis added).

As to Petitioner’s enrollment, Mr. Lash stated that, “[o]n October 9, 2009, Palmetto
received three applications for [Petitioner] from [ADO] and Doctors Pain Center, LLC
....” Id. at 5. These applications comprised “a CMS-855I application to enroll
[Petitioner] in the Medicare program . .. a CMS-855R application to enroll [Petitioner] as
a supplier for [ADO] . . . [and] a CMS-855R application to enroll [Petitioner] as a
supplier for Doctors Pain Center, LLC.” Id. at 5-6, citing CMS Exs. 4, 6, 7 (CMS 8551
and two CMS 855Rs for Petitioner, plus scan of envelope). The three documents were
assigned consecutive DCNs (09286301 100179, 09286301100180, 09286301100181,
respectively) and each “was stamped 9282, indicating that it was received in 2009 on the
282™ day of the year (October 9).” Jd. Palmetto processed the CMS 8551 for Petitioner
and the CMS 855R to enroll Petitioner as a supplier for ADO and Petitioner “received an
effective date of September 10, 2009.” Id. at 5, citing CMS Ex. 5 (Palmetto letter Oct.
31, 2009 to ADO stating that Petitioner had been “added to the roster” of ADO effective
September 10, 2009 and was approved to bill the Medicare program under her NPI). The
CMS 855R to enroll Petitioner as a supplier for Doctors Pain Center, LLC “was rejected
13

because it was not signed by the appropriate authorized individual on file.” Jd. at 6,
citing CMS Ex. 8 (Palmetto letter Oct. 21, 2009 to Doctors Pain Center, LLC).*

Notably, Mr. Lash stated that the envelope Palmetto received from ADO on July 30,
2009 containing the CMS 855B for ADO shows postage of $7.34. CMS Ex. 1, at 4-5,
citing CMS Ex. 2, at 47 (envelope). The envelope Palmetto received from ADO on
October 9, 2009, containing the three applications for Petitioner, shows postage of $7.85.
CMS Ex. 1, at 6, citing CMS Ex. 7, at 7. This difference in postage supports Mr. Lash’s
report that the later submission consisted of more documents (three applications totaling
43, 5 and 7 pages, respectively) than the earlier submission (one application totaling 46
pages). CMS Ex. 1, at 4-6, citing CMS Exs. 4, 6, 7. This is consistent with my finding
that the package received July 30, 2009 did not contain an application for Petitioner.

L also note that of the three applications for Petitioner that Mr. Lash reported were
received on October 9, 2009, only the last one (DCN 09286301100181) contains a scan
of an envelope. CMS Ex. 7. The presence of one envelope in three items with
consecutive DCNs is consistent with Mr. Lash’s statement that the envelope received on
October 9, 2009 contained the three applications that ADO submitted for Petitioner. The
applications that CMS submitted as exhibits are consistent with the descriptions in Mr.
Lash’s declaration. I find that the information in Mr. Lash’s declaration and both parties’
exhibits convincingly establishes that the package ADO sent to Palmetto by certified mail
that Palmetto received on July 30, 2009 did not contain any enrollment applications for
Petitioner, and that Palmetto did not receive from ADO an application for Petitioner’s
enrollment prior to October 9, 2009.

Finally, in Petitioner’s response to CMS’s motion for summary affirmance, Petitioner
appears to have abandoned the assertion that the package sent with the certified mail
receipt dated July 20, 2009 contained her enrollment application. She states instead that
“Tt]he original certified mail tracking number we had originally thought belonged to the
July applications was incorrect” and that the certified mail tracking number on the receipt
belonged to another submission, which Petitioner states was “another application we had
sent during the same time period.” P. Br. at 2. Presumably, Petitioner here refers to the
CMS 855B for ADO (but not Petitioner) that Palmetto received on July 30, 2009.
Petitioner concedes that “ADO cannot prove Palmetto CMS received the original
applications with the July 24, 2009 signature due to administrative clerical errors on our
part.” Id. As discussed, a supplier’s effective date is conditioned upon the contractor’s
receipt of the supplier’s enrollment application. In light of the acknowledged absence of
any evidence that Palmetto actually received an approvable application on behalf of

® Petitioner’s request for hearing did not dispute the rejection of her application to enroll
as a supplier for Doctors Pain Center, LLC., and indicated that she had supplied Palmetto
with the required signature. RH at 2.
14

Petitioner at any time prior to October 9, 2009, and in light of CMS’s evidence that
Palmetto received no such application during July or August 2009, I have no choice but
to sustain CMS’s and Palmetto’s determination of Petitioner’s effective date. Petitioner’s
statement that she signed an original form CMS 8551 in July 2009 and duplicates in July
and “September/October 2009,” which CMS does not dispute, does not establish that
Palmetto actually received any such application prior to October 9, 2009.

c. Petitioner’s equitable arguments provide no basis to set an earlier effective
date.

Petitioner states that she has over $15,000 of unbilled charges with ADO for patient visits
prior to her billing date and that the resulting lack of funds has resulted in “severe

ardship” for ADO. P. Br. at 3-4. She also states that ADO was not aware of the
changes to the enrollment regulations that reduced the available period for retrospective
billing for physician suppliers from up to 27 months to 30 days, the period granted her.
Petitioner complains that monthly Medicare Advisories for Ohio and West Virginia
providers during the period November 2008 through April 2009 failed to mention this
change. Id. at 3, citing P. Ex. VII (“Medicare Advisory” tables of contents).

Previous regulations no longer in effect did authorize CMS to grant physician suppliers
up to 27 months of retroactive billing privileges; however, the current regulations, which
became effective January 1, 2009, removed that provision and the authority it provided.
73 Fed. Reg. at 69,940. The availability of the former, lengthier period for retrospective
billing meant that issues relating to the effective dates of supplier enrollments and billing
privileges were unlikely to arise in appeals such as this. With the shorter time frame for
retrospective billing, the applicable effective date has obviously become more important.

The current regulations at section 424.520(d) and 424.52 1(a) that establish effective dates
and limit retrospective billing, however, are binding on me. I can neither alter nor
deviate from their explicit limitation on Petitioner’s ability to bill for services to 30 days
prior to the date that Palmetto received her approved application. Even if Petitioner
could show that she received erroneous advice on retrospective billing, that would not
permit me to grant an earlier effective date. Estoppel against the federal government, if
available at all, is presumably unavailable absent “affirmative misconduct,” such as
fraud. See, e.g., Pac. Islander Council of Leaders, DAB No. 2091, at 12 (2007); Office of
Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). While I understand Petitioner’s
confusion over what she perceives as an unanticipated change in the way Medicare had
done business, I have no authority to extend the retroactive billing period for Petitioner in
a manner contrary to the regulations. The frustration that Petitioner and the practice

15

manager describe does not permit me to ignore the unmistakable requirements of the
regulations governing her enrollment in Medicare, by which I am bound.”

IV. Conclusion

The evidence provides no basis to find that an approvable application for Petitioner’s
enrollment was received prior to October 9, 2009. I therefore sustain the determination
of the effective date of Petitioner’s enrollment, but set the beginning date of her billing
privileges at September 9, 2009 (rather than September 10, 2009), 30 days prior to
Palmetto’s receipt of her approved application.

/s/
Leslie A. Sussan
Board Member

° CMS did not seek an opportunity to respond to Petitioner’s brief and thus did not
address Petitioner’s claim that Medicare publications failed to provide adequate notice of
the reduction in the available period of retrospective billing. I note, however, that as a
Medicare supplier, Petitioner was charged with knowing, and had constructive notice of,
the requirements for billing for services. See Waterfront Terrace, Inc., DAB No. 2320, at
7 (2010), citing Heckler v. Cmty. Health Servs. of Crawford County, 467 U.S. 51, 64
(1984) (“As a participant in the Medicare program, respondent had a duty to familiarize
itself with the legal requirements” of the program.); see also Manor of Wayne Skilled
Nursing & Rehab., DAB No. 2249, at 10-11 (2009) and Regency on the Lake, DAB No.
2205, at 5-6 (2008) ([F]acilities participating in Medicare had constructive notice of
regulations.).


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Francisca Mbanaja,
a/k/a Francisca M. Simien,
Petitioner,
Vv.

The Inspector General.

Docket No. C-10-482

Decision No. CR2230

Date: August 30, 2010

DECISION

This matter is before me on the Inspector General’s (1.G.’s) Motion for Summary
Disposition. That Motion, if granted, would affirm the I.G.’s determination to exclude
Petitioner Francisca Mbanaja, a/k/a Francisca M. Simien, from participation in Medicare,
Medicaid, and all other federal health care programs for a period of 10 years. The I.G.’s
Motion and determination to exclude Petitioner are based on section 1128(a)(1) of the
Social Security Act (Act), 42 U.S.C. § 1320a-7(a)(1).
The facts in this case mandate the imposition of a five-year exclusion, and support the
1.G.’s determination to enhance that period of exclusion to 10 years. Accordingly, I grant
the I.G.’s Motion for Summary Disposition.
I. Procedural Background
Francisca Mbanaja was a partner in a Dallas, Texas business called P & F Medical

Supply (P & F). P & F was a provider of medical supplies to the Texas Medicaid
program, and its specific business activity was delivering incontinence supplies to
Medicaid beneficiaries. Petitioner was responsible for billing Medicaid for the supplies
ostensibly delivered. Between January 2003 and August 2006, Petitioner submitted
claims to Medicaid from P & F totaling over $200,000 for supplies and equipment not
actually delivered as claimed.

On May 8, 2009, Petitioner appeared with counsel in the 283rd Judicial District Court,
Dallas County, Texas, and pleaded guilty to one count of Medicaid Fraud, in violation of
TEX. PENAL CODE ANN. § 35A.02. She was fined $3000, assessed costs of $236,
sentenced to three days’ home confinement and a 10-year period of probation, and was
ordered to pay restitution to the Texas Medicaid program in the sum of $216,875.

Section 1128(a)(1) of the Act mandates the exclusion of “[a]ny individual or entity that
has been convicted of a criminal offense related to the delivery of an item or service
under . . . any State health care program” for a period of not less than five years. On
December 31, 2009, the I.G. notified Petitioner that she was to be excluded pursuant to
the terms of section 1128(a)(1) of the Act for a period of 10 years.

Acting through counsel, Petitioner timely sought review of the L.G.’s action by letter of
February 16, 2010.

I convened a prehearing conference by telephone on March 12, 2010, pursuant to 42
C.F.R. § 1005.6, in order to discuss procedures best suited for addressing the issues
presented by the case, and by Order of March 15, 2010, as amended by my Order of June
30, 2010, I established a schedule for the submission of documents and briefs.

The briefing cycle in this case closed for purposes of 42 C.F.R. § 1005.20(c) with the
filing of Petitioner’s Response to the Inspector General’s Supplemental Reply Brief on
July 14, 2010.

The evidentiary record on which I decide the issues before me contains eight exhibits.
The I.G. proffered eight exhibits marked I.G. Exhibits 1-8 (1.G. Exs. 1-8). Petitioner
proffered no exhibits. In the absence of objection, I have admitted I.G. Exs. 1-8.

II. Issues

The legal issues before me are limited to those set out at 42 C.F.R. § 1001.2007(a)(1). In
the context of this record, they are:

a. Whether the L.G. has a basis for excluding Petitioner from participating
in Medicare, Medicaid, and all other federal health care programs pursuant
to section 1128(a)(1) of the Act; and
b. Whether the 10-year length of the proposed period of exclusion is
unreasonable.

The controlling authorities require that these issues be resolved in favor of the I.G.’s
position. Section 1128(a)(1) of the Act mandates Petitioner’s exclusion, for her predicate
conviction is not in dispute. A five-year period of exclusion is the minimum period
established by section 1128(c)(3)(B) of the Act, 42 U.S.C. § 1320a-7(c)(3)(B). The
enhancement of that period to 10 years is not unreasonable, for both of the aggravating
actors relied on by the I.G. to enhance the period are fully demonstrated in the record
before me, and no mitigating factor has been proven by Petitioner.

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), requires the exclusion from
participation in Medicare, Medicaid, and all other federal health care programs of any
individual or entity convicted of a criminal offense related to the delivery of an item or
service under title XVIII of the Act (the Medicare program) or any state health care
program. The terms of section 1128(a)(1) are restated in similar language at 42 C.F.R.

§ 1001.101(a). This mandatory exclusion must be imposed for a minimum of five years.
Section 1128(c)(3)(B) of the Act; 42 U.S.C. § 1320a-7(c)(3)(B). Petitioner does not deny
that the I.G. has a basis upon which to exclude Petitioner.

The mandatory minimum period of exclusion may be enhanced in some limited
circumstances and on the I.G.’s proof of certain narrowly-defined aggravating factors
listed at 42 C.F.R. § 1001.102(b). In this case, the I.G. seeks to enhance the period of
Petitioner’s exclusion to 10 years, and relies on the two aggravating factors set out at 42
C.F.R. § 1001.102(b)(1) and (2). Petitioner does not deny the presence of these two
aggravating factors or contest the I.G.’s proof of them.

In cases where the I.G. proposes to enhance the period of exclusion by relying on any of
those aggravating factors, a petitioner may attempt to limit or nullify the proposed
enhancement through proof of certain mitigating factors, carefully defined at 42 C.F.R.
§ 1001.102(c). In this case, Petitioner has not pleaded a defined mitigating factor, and
none appears in the record before me.

IV. Findings and Conclusions

I find and conclude as follows:

1. On May 8, 2009 Petitioner appeared with counsel in the 283rd Judicial District Court,
Dallas County, Texas, pleaded guilty to one count of Medicaid Fraud, in violation of

TEX. PENAL CODE ANN. § 35A.02., was adjudged guilty on her plea, and was sentenced.
LG. Exs. 5, 7.
2. As part of her sentence, Petitioner was ordered to pay restitution to the Texas
Medicaid program in the amount of $216,875. I.G. Ex. 5.

3. The acts for which Petitioner was convicted occurred from about January 1, 2003 to
about August 1, 2006. LG. Exs. 5, 6, 8.

4. On December 31, 2009, the I.G. notified Petitioner that she was being excluded from
participation in Medicare, Medicaid, and all federal health care programs for 10 years,
pursuant to section 1128(a)(1) of the Act. LG. Ex. 4.

5. On February 16, 2010, Petitioner perfected her appeal from the I.G.’s action.

6. The guilty plea and adjudication of guilt based on Petitioner’s violation of TEX.
PENAL CODE ANN. § 35A.02, as described in Finding 1 above, constitute a conviction
related to the delivery of an item or service under Medicare or Medicaid within the
meaning of section 1128(a)(1) of the Act. Berton Siegel, D.O., DAB No. 1467 (1994).

7. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act.
8. The acts for which Petitioner was convicted resulted in a loss of $5,000 or more to a

government program or one or more entities, the aggravating factor established by 42
C.F.R. § 1001.102(b)(1).

9. The acts for which Petitioner was convicted were committed over a period of one year
or more, the aggravating factor established by 42 C.F.R. § 1001.102(b)(2).

0. Petitioner has shown no mitigating factors that I am authorized to consider under 42
C.F.R. § 1001.102(c).

1. Petitioner’s exclusion for five years is mandatory pursuant to section 1128(c)(3)(B)
of the Act. 42 U.S.C. § 1320a-7(c)(3)(B). That period is presumptively reasonable.

12. Exclusion of Petitioner for an additional period of five years, and thus for a total
period of exclusion of 10 years, is not unreasonable based upon the two aggravating
actors established in this case and the absence of any mitigating factors.

V. Discussion

The essential elements necessary to support an exclusion based on section 1128(a)(1) of
the Act are: (1) the individual to be excluded must have been convicted of a criminal
offense; and (2) the criminal offense must have been related to the delivery of an item or
service under Title XVIII of the Act (Medicare) or any state health care program.
Tamara Brown, DAB No. 2195 (2008); Thelma Walley, DAB No. 1367 (1992); Boris

Lipovsky, M.D., DAB No. 1363 (1992); Lyle Kai, R.Ph., DAB CR1262 (2004), rev'd on
other grounds, DAB No. 1979 (2005); see also Russell Mark Posner, DAB No. 2033, at
5-6 (2006). As noted above, Petitioner has conceded that these two essential elements are
present, and the record demonstrates that there is an objective factual basis for that
concession. The essential elements of this exclusion have been proven.

Because the I.G. has established a basis for Petitioner’s exclusion pursuant to section
1128(a)(1), her exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of
the Act. 42 U.S.C. § 1320a-7(c)(3)(B). That period is reasonable as a matter of law.

The L.G. relies on the two aggravating factors set out at 42 C.F.R. § 1001.102(b)(1) and
(b)(2) in seeking to enhance the period of Petitioner’s exclusion to 10 years. Petitioner
does not challenge the actual existence of these two factors, but argues that the LG.
incorrectly weighed them in setting Petitioner’s period of exclusion. Because Petitioner
addresses the substance of each of the two aggravating factors in advancing her position,
briefly address each of the two aggravating factors below.

The first aggravating factor on which the I.G. relies is present when “[t]he acts resulting
in the conviction, or similar acts . . . caused . . . a financial loss to a Government program

. . of $5,000 or more.” 42 C.F.R. § 1001.102(b)(1). The court records show that
Petitioner was required to pay $216,875 in restitution to the Texas Medicaid program.
1.G. Ex. 5 at 1; 1.G. Ex. 6; LG. Ex. 8 at 3. Appellate panels of the Departmental Appeals
Board (Board) have characterized restitution in amounts substantially greater than the
regulatory standard as an “exceptional aggravating factor” entitled to significant weight.
Jeremy Robinson, DAB No. 1905 (2004); Donald A. Burstein, Ph.D., DAB No. 1865
(2003). The LG. has established this first aggravating factor, and Petitioner concedes that
the factor is present.

The second aggravating factor asserted by the I.G. is specified at 42 C.F.R.

§ 1001.102(b)(2). That factor is present if “[t]he acts that resulted in the conviction, or
similar acts, were committed over a period of one year or more.” Here, the language of
the charge to which Petitioner pleaded guilty demonstrates the existence of this factor.
The True Bill of Indictment describes the period during which Petitioner did “knowingly
make misrepresentations of material facts, namely: overstating the quantity of medical
supplies provided to Medicaid patients . . . in order to... receive payments... that
were greater than the payments that were authorized . . . .” as beginning on or about
January 1, 2003 and continuing until on or about August 1, 2006. LG. Ex. 6. The acts
that resulted in Petitioner’s conviction took place over a period of about 43 months, far
longer than the one-year regulatory standard. The I.G. has established this second
aggravating factor, and Petitioner does not deny its presence.
As noted above, evidence relating to aggravating factors may be countered by evidence

relating to any of the mitigating factors set
well-settled that Petitioner bears the burden
burden of persuasion, in her effort to establi

orth at 42 C.F.R. § 1001.102(c)(1)-(3). It is
of going forward with the evidence, and the

sh the mitigating factor at issue. See Stacey

R. Gale, DAB No. 1941 (2004); Arthur C. Haspel, D.P.M., DAB No. 1929 (2004); see

also Dr. Darren James, D.P.M., DAB No.
attempted to prove the presence of any of th
of the record has not suggested that any of t

828 (2002). In this case, Petitioner has not
e defined mitigating factors, and my review
ose factors are present.

Now, the central point of contention in this case is not the existence of a basis for the

proposed exclusion, nor is it the existence o:

the two aggravating factors. It is instead

Petitioner’s argument that the weight given by the I.G. to the two aggravating factors is
excessive. Petitioner admits the amount of loss to the Texas Medicaid program, and
admits that she submitted fraudulent billings to that program for 43 months, but asserts
that the 10-year period of exclusion is simply too harsh a measure. She correctly notes
that the I.G. must evaluate any demonstrated aggravating factors in terms of what they
show about the trustworthiness or untrustworthiness of a petitioner such as herself, but
she fails to appreciate the I.G.’s broad discretion in making such evaluations, and fails to
acknowledge that a precise correlation between individual cases and proven aggravating
factors and lengths of exclusions, established by “‘a rigid formula,” is not required. Keith
Michael Everman, D.C., DAB No. 1880, at 10 (2003).!

Thus, when Petitioner points to specific cases in which greater losses or more prolonged
criminal activity resulted in 10-year exclusions similar to hers, she fails to acknowledge
that what is required of the I.G. is that the period of exclusion be within a “reasonable
range, based on demonstrated criteria.” See Joann Fletcher Cash, DAB No. 1725, at 17
(2000). A reasonable range is “a range of exclusion periods that is more limited than the
full range authorized by the statute and that is tied to the circumstances of the individual
case.” Joseph M. Rukse, Jr., R.Ph., DAB No. 1851, at 11 (2002). Thus, the I.G. was
obliged in this case, after examining and weighing the circumstances of Petitioner’s case,
to select a period of exclusion not less than the mandatory five-year period, but
something less than permanent exclusion and limited in its length by the circumstances
proven in this record.

' In arguing that Dolan v. United States, 130 S. Ct. 2533 (2010), authorizes me to ignore
the statutes, regulations, and precedents governing this case, Petitioner also fails rather
conspicuously to acknowledge that first tenet of statutory interpretation: the notion that
the statute involved be applicable to the facts at bar. Dolan interpreted a provision of the
Mandatory Victims Restitution Act, 18 U.S.C. § 3664(d)(5) in circumstances bearing no
resemblance whatsoever to the facts or issues in this case.
The I.G.’s discretion in weighing the importance of aggravating and mitigating factors in
exclusion cases commands great deference when reviewed by Administrative Law Judges
(ALJs). Paul D. Goldenheim, M.D., et al., DAB No. 2268 (2009); Jeremy Robinson,
DAB No. 1905; Keith Michael Everman, D.C., DAB No. 1880; Stacy Ann Battle, D.D.S.,
et al., DAB No. 1843 (2002). The source of this doctrine is the belief held by the
regulations’ authors that the I.G. is invested with “vast experience in implementing
exclusions ....” 57 Fed. Reg. 3298, 3321 (January 29, 1992). This doctrine of
deference requires that the ALJ not substitute her or his own view of what period o:
exclusion might appear better to the ALJ in any given case for the view of the I.G. on the
same evidence. In general, the Board has insisted that ALJs may reduce an exclusionary
period only when they discover some meaningful evidentiary failing in the aggravating
factors upon which the LG. relied, or when they discover evidence reliably establishing a
mitigating factor not considered by the LG. in setting the enhanced period. Jeremy
Robinson, DAB No. 1905. Where, as here, both of the aggravating factors on which the
1.G. relied are present and there are no mitigating factors, a holding that the exclusion
period chosen by the I.G. is unreasonable could be reached only through the substitution
of views that the doctrine of deference forbids.

Accordingly, the only question now before me is whether the length of the period o:
exclusion is within a reasonable range. In the instant case, the proposed 10-year period is
commensurate with the range established as reasonable in such cases as Emem Dominic
Ukpong, DAB No. 2220 (2008); Thomas D. Harris, DAB No. 1881 (2003); Frances
Unoka Nwoshuocha, DAB CR2057 (2010); Russell J. Ellicott, D.P.M., DAB CR1552
(2007); Anwar Yamini, Sr., DAB CR1095 (2003); Ira Katz, Little Five Points Pharmacy,
DAB CR1044 (2003); Egbert Aung Kyang Tan, M.D., DAB CR798 (2001); Paul W.
Williams, Jr., et al., DAB CR787 (2001); Tarvinder Singh, D.D.S., DAB CR697 (2000);
and Howard S. Weiss, M.D., DAB CR421 (1996). I rely on those cases as points of
reference because they were, like this one, based on convictions for crimes of financial
dishonesty and, like this one, contained evidence of the aggravating factors set out at 42
C.F.R. § 1001.102(b)(1) and (b)(2). The loss attributed to Petitioner's crime is so far in
excess of the minimum showing required as to illustrate the exceptional scale of her
untrustworthiness, and the temporal span of her criminal activity is sufficient for her to
have demonstrated persistent and enduring untrustworthiness over an extended period. I
have no difficulty in concluding that the length of the period of exclusion is within a
reasonable range, and it is therefore not unreasonable.

Summary disposition is authorized by the terms of 42 C.F.R. § 1005.4(b)(12). Resolution
of a case by summary disposition is particularly fitting when settled law can be applied to
undisputed material facts. Marvin L. Gibbs, Jr., M.D., DAB No. 2279 (2009); Michael J.
Rosen, M.D., DAB No. 2096 (2007). This forum looks to FED. R. CIv. P. 56 for
guidance in applying that regulation. Robert C. Greenwood, DAB No. 1423 (1993). The
material facts in this case are undisputed and unambiguous. They support summary
disposition as a matter of settled law. This Decision issues accordingly.
VII. Conclusion

For the reasons set forth above, the 1.G.’s Motion for Summary Disposition should be,
and it is, GRANTED. The L.G.’s exclusion of Petitioner Francisca Mbanaja from
participation in Medicare, Medicaid, and all other federal health care programs for a
period of 10 years pursuant to the terms of section 1128(a)(1) of the Act, 42 U.S.C.

§ 1320a-7(a)(1), is sustained.

/s/
Richard J. Smith
Administrative Law Judge