Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Uzzie Medical Supply, LLC, ) Date: August 7, 2009
)
Petitioner, )
)
-V.- ) Docket No. C-09-300
) Decision No. CR1984
Centers for Medicare & Medicaid )
Services. )
)
DECISION

I sustain the determination of the National Supplier Clearinghouse (NSC)' and the
Centers for Medicare & Medicaid Services (CMS) to revoke the Medicare supplier
number of Petitioner, Uzzie Medical Supply, LLC.

I. Procedural Background

Prior to the revocation at issue in this case, Petitioner was enrolled in the Medicare
program as a supplier of durable medical equipment, prosthetics, orthotics and supplies
(DMEPOS). Petitioner’s billing number was revoked by NSC because, on two occasions
during Petitioner’s posted business hours, an NSC investigator went to Petitioner’s
business facility and found that Petitioner was not open. CMS Exhibits (Exs.) 3,9. By
letter dated October 24, 2008, NSC informed Petitioner that its billing number would be
revoked because the inspector attempted to complete an inspection at Petitioner’s facility
but found that the company had moved to a new suite. On two instances, the inspector
attempted to conduct the investigation at both addresses, but each time the facility was
closed. Therefore, NSC could not verify Petitioner’s compliance with the supplier

' NSC is the entity authorized by CMS to issue, revoke, and reinstate DMEPOS
supplier numbers. 42 C.F.R. §§ 405.874(a); 421.210(e)(3); see 57 Fed. Reg. 27,290
(June 18, 1992); 58 Fed Reg. 60,789 (Nov. 18, 1993).
standards. CMS Ex. 3, at 1. Petitioner was told that it was in violation of 42 C.F.R.

§ 424.535(a)(5)(ii). That regulation provides in part that CMS may revoke a currently
enrolled supplier’s supplier number or supplier agreement if the supplier “has failed to
satisfy any or all of the Medicare enrollment requirements.” 42 C.F.R.

§ 424.535(a)(5)(ii) (emphasis added).

Petitioner requested reconsideration and submitted two affidavits and additional
documentation for the Medicare Hearing Officer’s review. CMS Exs. 4, 6-8. In his
affidavit, Petitioner’s owner, Mr. Lawrence Dioh, stated that the business was open on
the dates of both attempted inspections, with all its door signs posted as required. CMS
Ex. 7, at 2. He explained that while his new lease went into effect on August 1, 2008, the
move was completed on August 20, 2008. A sign with the company name and hours of
operation was posted on the new suite’s door on August 1, 2008. According to Mr. Dioh,
Medicare rules allowed him 30 days to reflect the changes on his licenses and report to
Medicare. On September 11, 2008, he received his Texas State license. On September
12-13, 2008, Hurricane Ike hit the area, and as a result of wind and water damage, the
office building was closed on September 14, 2008. On September 23, 2008, building
management temporarily relocated most tenants, including Petitioner, while repairs were
made. On September 29, 2008, Mr. Dioh called to notify Medicare about the situation
and was told to make the changes after he moved back to his new permanent address. On
November 26, 2008, Petitioner was able to move back into his new permanent suite.
CMS Ex. 7, at 2-3.

Petitioner also submitted the affidavit of a neighboring business owner, Mr. Ganiyu
Alashe. CMS Ex. 8, at 2. Mr. Alashe stated that he sees Mr. Dioh when Mr. Dioh
“leaves or come[s to] his office.” CMS Ex. 8, at 2. Mr. Alashe also stated that Mr. Dioh
“was in his office on August 26th and 27th 2008.” CMS Ex. 8, at 2.

Following review of the documentation presented by Petitioner, the Hearing Officer
found that Petitioner was out of compliance with supplier Standards 2 and 8. CMS Ex. 9,
at 2. The additional documentation provided did not substantiate Mr. Dioh’s assertion
that Petitioner was operational on August 26 and August 27, 2008. “The fact remains
that the site inspector could not access the office on two separate occasions to verify that
Uzzie Medical Supply was open and operational.” CMS Ex. 9, at 3.

The Hearing Officer concluded that Petitioner had failed to present evidence verifying
that the business facility was open and operational at either address during the two site
visits on August 26 and August 27 and failed to substantiate its compliance with supplier
standard 8 at the relevant time. The Hearing Officer also found that Petitioner failed to
report changes to its DMEPOS supplier application (i.e., location) within 30 days as
required by standard 2. The Hearing Officer therefore determined that the revocation of
Petitioner’s Medicare suppler number was appropriate. CMS Ex. 9, at 2-3.
On February 26, 2009, the Hearing Officer issued her decision. CMS Ex. 9. By letter
dated March 6, 2009, Petitioner timely requested a hearing and perfected its appeal of the
Hearing Officer’s decision.

On March 25, 2009, I convened a telephone prehearing conference to discuss the issues
of this case and procedures for addressing those issues. The parties were advised that
based upon my review of the file, it appeared that the issues could be addressed in
summary fashion, and I established a schedule for further development of the evidentiary
record and the filing of briefs. The substance of the prehearing conference is
memorialized in my Order of March 26, 2009.

On April 16, 2009, CMS filed its Motion for Summary Disposition and supporting Brief-
in-Chief (CMS Br.) and CMS Exs. 1-13. On May 8, 2008, Petitioner filed its Answer
Brief (P. Br.) and Petitioner’s Exhibits (P. Exs.) 1-7. On May 18, 2009, CMS filed its
Reply Brief.

All briefing is now complete, and the record in this case is closed. The evidentiary record
before me on which I decide the issue contains the parties’ pleadings and exhibits CMS
Exs. 1-13 and P. Exs. 1-7.

II. Issue

The issue in this case is whether NSC and CMS had a basis to revoke Petitioner’s
Medicare supplier number.

III. Controlling Statutes and Regulations

Pursuant to section 1834(j)(1)(A) of the Social Security Act (Act), a supplier of medical
equipment and supplies may not be paid for items provided to an eligible beneficiary
unless the supplier has a supplier number issued by the Secretary. In order to participate
in Medicare as a DMEPOS supplier and obtain a supplier number, an entity must meet
the 25 standards specified at 42 C.F.R. § 424.57(c)(1) through (25). Standard 2 sets
requirements not only for false statements or misrepresentations, but also for reporting
changes and updates to Medicare enrollment information. 42 C.F.R. § 424.57(c)(2).
Standard 8 sets the requirements for a supplier’s location and provides that the location
“must be accessible during reasonable business hours to beneficiaries and to CMS... .”
42 CFR. § 424.57(c)(8).

Ifa supplier is found not to meet the standards in 42 C.F.R. § 424.57(b) and (c), CMS or
its contractor NSC, will revoke the supplier’s billing privileges (i.e. supplier number),
effective 30 days after CMS or NSC mails the notice of revocation. 42 C.F.R.

§ 424.57(d); see also 42 C.F.R. § 405.874(b)(2).
The revocation of a supplier number is governed by 42 C.F.R. § 424.535. CMS may use
an on-site review to determine whether a “supplier is no longer operational to furnish
Medicare covered items or services, or is not meeting Medicare enrollment requirements
....” 42 C.F.R. § 424.535(a)(5). A supplier is operational when it “has a qualified
physical practice location, is open to the public for the purpose of providing health care
related services, is prepared to submit valid Medicare claims, and is properly staffed,
equipped, and stocked . . . to furnish these items or services.” 42 C.F.R. § 424.502.

The procedures for hearings and appeal are set out in 42 C.F.R. Part 498. Section
1866(j)(2) of the Act allows providers and suppliers equal appeal rights as described by
section 1866(h)(1)(A) of the Act. The hearing before an Administrative Law Judge
(ALJ) is a de novo proceeding. In cases subject to Part 498, the Departmental Appeals
Board (Board) has found that CMS must establish a prima facie showing of a regulatory
violation and the regulated entity then bears the burden of showing by a preponderance of
the evidence that it was compliant with the Act or regulations, or that it had a defense.
Batavia Nursing and Convalescent Center, DAB No. 1904 (2004); Batavia Nursing and
Convalescent Inn, DAB No. 1911 (2004); Emerald Oaks, DAB No. 1800 (2001); Cross
Creek Health Care Center, DAB No. 1665 (1998); Evergreene Nursing Care Center,
DAB No. 2069, at 7-8 (2007). The Board has found this allocation of the burden of
going forward with the evidence and the burden of persuasion properly applied in the
DMEPOS supplier cases. MediSource Corporation, DAB No. 2011, at 2-3 (2006). The
parties have urged no different allocation in this case.

IV. Findings and Conclusions
I find and conclude as follows:

1. Mark D. Porter, an investigator employed by NSC, attempted to conduct a site
inspection of Petitioner’s business facility at the address on file, Suite 330C, 6250
Westpark Drive, Houston, Texas 77057, on August 26, 2008. CMS Ex. 1; CMS
Ex. 3; CMS Ex. 9.

2. Mr. Porter also attempted to conduct a site inspection of Petitioner’s business
facility at Suite 135, 6250 Westpark Drive, Houston, Texas 77057, on August 26,
2008. CMS Ex. 1; CMS Ex. 3; CMS Ex. 9.

3. Mr. Porter again attempted to conduct a site inspection of Petitioner’s business
facility on August 27, 2008, at the address on file, Suite 330C. CMS Ex. 1; CMS
Ex. 3; CMS Ex. 9.

4. Mr. Porter also attempted to conduct a site inspection of Petitioner’s business
facility on August 27, 2008 at Suite 135. CMS Ex. 1; CMS Ex. 3; CMS Ex. 9.
. Petitioner’s posted business hours were Monday — Friday, 9:00 AM to 5 PM;
lunch, 12:30 PM to 1:30 PM; Saturday, 10:00 AM to 3:00 PM; closed Sunday.
CMS Ex. 1, at 3; CMS Ex. 9, at 3.

. Petitioner’s business facility was not operational, open, and accessible — at either
the old or the new location — during its posted business hours to the NSC
inspector, to Medicare beneficiaries, and to the public on Tuesday, August 26,
2008, at 2:20 PM.

. Petitioner’s business facility was not operational, open, and accessible — at either
the old or the new location — during its posted business hours to the NSC
inspector, to Medicare beneficiaries, and to the public on Wednesday, August 27,
2008, at 10:10 AM.

. Petitioner’s failure to be open during posted business hours on August 26 and
August 27, 2008 was a violation of supplier Standard 8. 42 C.F.R. § 424.57(c)(8).

. The inspections conducted on August 26 and August 27, 2008, established a basis
for revocation of Petitioner’s supplier number. 42 C.F.R. § 424.515(d).

10. Petitioner’s billing number must be revoked pursuant to 42 C.F.R. § 424.57(d).

11. There are no disputed issues of material fact and summary disposition is therefore

appropriate in this matter. Brightview Care Center, DAB No. 2132 (2007);
Residence at Kensington Place, DAB No. 1963 (2005); Community Hospital of
Long Beach, DAB No. 1938 (2004); Lebanon Nursing and Rehabilitation Center,
DAB No. 1918 (2004).

V. Discussion

The supplier standards at issue before me are set forth at 42 C.F.R. § 424.57(c)(2) and
(8). Standard 8 requires that the supplier’s physical location be accessible during
reasonable business hours, providing that a supplier:

Permits CMS, or its agents to conduct on-site inspections to ascertain
supplier compliance with the requirements of this section. The supplier
location must be accessible during reasonable business hours to
beneficiaries and to CMS, and must maintain a visible sign and posted
hours of operation.

42 CFR. § 424.57(c)(8).
Standard 2 requires that a supplier

provide complete and accurate information in response to questions on its
application for billing privileges. The supplier must report to CMS any
changes in information supplied on the application within 30 days of the
change.

42 CFR. § 424.57(c)(2).

A. Petitioner has failed to overcome CMS’s prima facie showing that its
business facility was not open and operational on August 26 and August 27,
2008.

CMS has established a prima facie case that Petitioner’s business facility was closed
when visited on August 26 and August 27, 2008. As previously noted, Petitioner’s
posted hours of operation Monday through Friday were from 9 AM to 5 PM. On August
26 and 27, during Petitioner’s business hours, Mr. Porter attempted to inspect the facility
at the address on record, Suite 330C, 6250 Westpark Drive, in Houston, Texas. On both
visits he found the suite locked. There was no sign connecting the suite to Petitioner.
There was, however, a sign on the placard that read “Moved to Suite 135.” CMS Ex. 1,
at 3, 12; CMS Br. at 6. NSC had not been notified of the move, but Mr. Porter went to
Suite 135 on both visits and found it locked as well. The placard at Suite 135 read
“Uzzie Medical Supply, L.L.C.” and listed the hours of operation. CMS Ex. 1, at 3, 13.

Petitioner’s owner, Mr. Dioh, asserts that Suite 135 was open on August 26 and 27 and
that no one came in or attempted to come in for an inspection. CMS Ex. 7, at 2.
Petitioner also asserts that specifically on August 27, 2008, Mr. Dioh was in a meeting
with a client from 9:25 AM to 11:30 AM. P. Br. at 2; CMS Ex. 10, at 3. However, these
assertions do not contradict the investigator’s statements that the location was locked and
therefore not open for business at the times of his visits. Mr. Dioh’s presence at the
office is irrelevant to the question of whether the location was “accessible during
reasonable business hours to beneficiaries and to CMS,” or in this case CMS’s contractor
NCS, as required by the standard. 42 C.F.R. § 424.57(c)(8). The Board addressed the
same situation in MediSource Corp., DAB No. 2011, at 10, n.12 (2006): “The clear
purpose of the posting requirement is to inform the public of the actual hours of
operation, and the supplier cannot operate during those hours if no staff is available . . .
the NSC website informs suppliers that staff must be available at the facility during
posted business hours.” (emphasis added).
CMS relies on the affidavit of the NSC inspector, Mr. Porter, who has an extensive
background in, and is familiar with, the relevant supplier requirements and regulations.”
He is a trained and experienced investigator, and has personally visited the address of
Petitioner’s facility. CMS Ex. 1. Mr. Porter stated that he follows the same procedures
or each site visit. CMS Ex. 1, at 2.

I find Mr. Porter’s affidavit credible and persuasive, and I cannot find inconsistencies
between his affidavit and the site investigation report. CMS Ex. |. Petitioner argues that
both sets of undated notes in the comments section of Mr. Porter’s investigation report
appear to have been made after the second attempt, and thus, Petitioner maintains, the
inspector cannot prove the times of the alleged inspection attempts. P. Br. at 2; see CMS
Ex. 1, at 5, 11. As Petitioner notes, Mr. Porter does not explain in his affidavit what
notes he made on what day. I nevertheless find his affidavit and investigation report to
be credible and persuasive. The notes themselves are patently not offered as evidence of
the dates or times of the visits, and I have not considered them for that purpose; they are
merely part of the investigation report, which itself is entirely corroborative of Mr.
Porter’s affidavit, but hardly the primary source of information about the dates and times
of Mr. Porter’s visits. That primary source is the Porter affidavit itself.

Mr. Porter took multiple photographs to corroborate his investigation and to confirm that
e visited the correct location.’ CMS Ex. 1, at 3, 12-14. CMS has proffered five
photographs that Mr. Porter took during the investigation. The first photograph shows
the placard at Suite 330 that reads, “Moved to Suite 135.” CMS Ex. 1, at 12. The third
photograph shows the placard at Suite 135 with Petitioner’s name and its days and hours
of operation. CMS Ex. 1, at 13. The fourth and fifth photographs show the exterior of
the building. CMS Ex. 1, at 13-14. Petitioner does not dispute that these are photographs
of its physical location but asserts that the photographs are not time and date stamped

> There appears to be a typographical error in Mr. Porter’s affidavit. While the
caption reads Uzzie Medical Supply, L.L.C. Petitioner, vs. The Centers for Medicare and
Medicaid Services, Respondent, Docket No. C-09-300, in the third paragraph of the
affidavit Mr. Porter says that he is providing the affidavit in connection with the matter
entitled Trans Medical Promotional Inc. v. Centers for Medicare & Medicaid Services,
DAB Docket No. C-09-54. Even if Mr. Porter intended it to be submitted for another
case, which is doubtful, the affidavit describes Mr. Porter’s attempts to visit Uzzie
Medical Supply and references the facility’s addresses. Since Mr. Porter was the
investigator in Trans Medical Promotional, DAB CR1937, the much-more-likely
explanation is a simple typographical error.

* Mr. Porter states that the purpose of taking photographs was to verify that he
visited the correct location. CMS Ex. 1, at 3. Because the photographs are not intended
to provide evidence of the dates or times of the site visits, it is immaterial whether the
photographs were taken on August 26 or August 27, 2008.
making it impossible to prove the times of each inspection attempt. P. Br. at 2. That
argument is meritless: it failed in Trans Medical Promotional, DAB CR1937 (April 1,
2009), and for the reasons there set out it fares no better here.

I find fully credible Mr. Porter’s statement that he would have taken the pictures in CMS
Ex. | of Petitioner’s physical site location when he could not complete the on-site visit on
August 27, 2008. CMS Ex. 1, at 3. Therefore, based on the evidence before me, I find
that Mr. Porter visited Petitioner’s facility, checking Suite 330C and at Suite 135, on
August 26, 2008, at 2:20 PM and observed the facility to be closed. I further find that
Mr. Porter visited Petitioner’s facility, checking Suite 330C and at Suite 135, on August
27, 2008, at 10:10 AM and observed the facility to be closed. CMS has shown prima
facie that Petitioner’s business facility was not operational, open, and accessible to the
NSC inspector to conduct a site inspection, nor accessible to Medicare beneficiaries and
the public on August 26 and August 27, 2008.

Petitioner argues that per 42 C.F.R. § 424.535(a)(1) Noncompliance, CMS was required
to grant it an opportunity to correct the deficient compliance but that CMS did not do so
before issuing the final determination on October 24, 2008. P. Br. at 3. However, the
regulation that applies in this situation is 42 C.F.R. § 424.535(a)(5) On-site review, which
does not require CMS to grant providers or suppliers an opportunity to correct.’
Nevertheless, Petitioner was given a second chance, because Mr. Porter visited both
offices a second time and found them inaccessible again.

Accordingly, I conclude that there was a basis for the revocation of Petitioner’s Medicare
supplier number.

B. I need not determine whether Petitioner failed to report to CMS any
changes in information supplied on the application within 30 days of the
change since Petitioner was not in compliance with 42 C.F.R. § 424.57(c)(8).

In its prehearing brief, Petitioner asserts that it posted its business name and hours of
operation at the new suite in anticipation of an August 1, 2008 move-in date, but that the
move was delayed until August 20, 2008 while Petitioner awaited the issuance of
required state licenses. P. Br. at 2. Petitioner argues that it was required to report the
change of location to NSC on or around September 19, 2008, and that “[o]n or about
September 20, 2008, the supplier contacted the region C DMERC [Durable Medical
Equipment Regional Carrier] to advise them of the natural disaster and was advised to
notify Medicare after the supplier returned to business location.” P. Br. at 2-3.

+ On-site inspections, or compliance surveys, are unannounced to assure program
integrity.
However, the assertion in Petitioner’s brief is unsubstantiated and Mr. Dioh has changed
his story several times. In a December 16, 2008 letter to NSC, he claims he moved to his
new location on August 1, 2008, and that the inspector probably did not attempt to visit
the new location, but he makes no representation about the date on which he informed
Medicare of the move. CMS Ex. 4, at 1-2. Ina February 12, 2009 affidavit he claims
that the sign with the hours was posted at his new location on August 1, 2008, but that the
move was not finalized until August 20, 2008, and that he notified Medicare around
September 29, 2008 about the situation. CMS Ex. 7, at 2-3. In a March 9, 2008 affidavit
he claims that he was renting both suites, and that he completed the move to the new suite
on August 20, 2008, and that he notified Jurisdiction C and NSC on September 15, 2008
of the situation “especially [the] change of address.” CMS Ex. 10, at 2-3.

The facts surrounding Petitioner’s compliance with this standard are unclear, but even its
full compliance with this standard would not change the outcome of my decision.
Because I have already determined that there is a basis for the revocation of Petitioner’s
supplier number under 42 C.F.R. § 424.57(c)(8), I need not decide this issue.

C. Summary Disposition is appropriate.

Petitioner’s hearing rights in this case are governed by 42 C.F.R. Part 498. These
regulations do not address explicitly the circumstances under which an ALJ may grant
summary disposition or judgment. However, the regulations have been interpreted
consistently in this forum and by the Board to allow summary disposition in those
circumstances where summary judgment would be appropriate under FED. R. CIv. P.
56(c).

Summary disposition is appropriate where there are no disputed issues of material fact
and where the only questions that must be decided involve either questions of law or the
application of the law to the undisputed facts. Livingston Care Center, DAB No. 1871, at
6 (2003). A party opposing summary disposition must allege facts that, if true, would
refute the facts relied upon by the moving party. See, e.g., FED. R. CIV. P. 56(c); Garden
City Medical Center, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center,
DAB No. 1628, at 3 (1997). A party may not simply state that it disputes allegations of
fact in order to avoid the entry of summary disposition; it must describe the asserted facts
credibly in order to establish a dispute. In evaluating whether there is a genuine issue as
to a material fact, an administrative law judge must view the facts and the inferences
reasonably to be drawn from the facts in the light most favorable to the nonmoving party.
See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986);
Madison Health Care, Inc., DAB No. 1927, at 5-7 (2004). This latter formulation of the
summary-disposition principle has been emphasized by the Board in Brightview Care
Center, DAB No. 2132 (2007), and in Oklahoma Heart Hospital, DAB No. 2183 (2008),
and I have applied that standard here. Having applied it, I find and conclude that CMS is
entitled to summary disposition in its favor.
10

VI. Conclusion

For the reasons set out above, I find and conclude that Petitioner’s Medicare billing
number was appropriately revoked pursuant to 42 C.F.R. § 424.57(c)(8). The CMS
Motion for Summary Disposition should be, and it is, GRANTED.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Martha Michele Frank, A.K.A. )
Martha Michele Horton, A.K.A. ) Date: August 04, 2009
Martha Michele Eisenbach, )
)
Petitioner, )
) Docket No. C-09-405
-v.- ) Decision No. CR1983
)
The Inspector General. )
)
DECISION

I sustain the determination of the Inspector General (1.G.) to exclude Petitioner, Martha
Michele Frank, A.K.A. Martha Michele Horton, A.K.A. Martha Michele Eisenbach, from
participating in Medicare, Medicaid and other federally funded health care programs for a
minimum period of five years. I find the exclusion to be mandatory in this case because
Petitioner was convicted of a criminal offense described at section 1128(a)(2) of the
Social Security Act (Act).

I. Background

Petitioner is a licensed practical nurse (L.P.N.). On February 27, 2009, the I.G. notified
Petitioner that she was being excluded. Petitioner requested a hearing and the case was
assigned to me for a hearing and a decision. | held a pre-hearing conference at which I
directed the parties to file briefs and proposed exhibits addressing the issues in the case. I
advised the parties that either of them could request that a hearing be held in person and I
advised them further that I would convene an in-person hearing if a party requesting an
in-person hearing satisfied me that there existed relevant testimony that did not duplicate
the contents of an exhibit.
The parties filed briefs and the I.G. filed six proposed exhibits which it identified as I.G.
Ex. | - LG. Ex. 6. Petitioner filed a response brief but did not offer any exhibits.
Petitioner did not object to my receiving any of the I.G.’s proposed exhibits into evidence.
The L.G. elected not to file a reply brief. Consequently, I receive into evidence I.G. Ex. 1
~1.G. Ex. 6.

The LG. stated in his brief that an in-person hearing is unnecessary. Petitioner requested
that I convene an in-person hearing to hear testimony. Petitioner stated that she would be
the sole witness and explained her proposed testimony as:

1. I feel that I haven’t worked in nearly 3 years & this should be considered.
2. There is a conflict between state & fed law.
3. Ihave the constitutional right to face my accusers.

Informal Brief of Petitioner at 3.

Petitioner has not established a basis for me to hold an in-person hearing. My authority to
hear and decide a case such as this one in which the I.G. has imposed an exclusion for a
minimum statutory period of five years is limited to deciding whether there exists a
statutory basis for an exclusion. In this case, the governing law is set forth at section
1128(a)(2) of the Act. Evidence which does not address the statutory criteria is irrelevant
and I must not consider it.

Petitioner’s arguments for an in-person hearing fail to address the statutory criteria for
exclusion and thus she has provided me with no reason to convene a hearing. Whether or
not Petitioner must be excluded depends on whether she has been convicted of a criminal
offense relating to neglect or abuse of patients in connection with the delivery of a health
care item or service. Act, section 1128(a)(2). Petitioner’s employment history over the
past three years is simply irrelevant. Petitioner has not identified any actual conflict
between State and federal law but, even if one existed, federal law would clearly control.
Consequently, even a potential conflict would not be a basis for an in-person hearing.
Moreover, a possible conflict, if one existed, raises issues of law and not fact and these
would certainly be decided without a hearing. Finally, I agree with Petitioner that she has
the right to due process and this right includes confronting the arguments and evidence
that are offered against her. But, due process does not automatically include holding an
in-person hearing where, as is the case here, there is nothing that could be accomplished
in person that cannot be addressed by the parties’ written submissions.

The evidence that is relevant to deciding this case is contained entirely within the exhibits
that were submitted by the I.G. Petitioner has made no showing that she possesses
additional relevant evidence. It is thus appropriate that I decide this case now without
conducting an in-person hearing.
IL. Issues, findings of fact and conclusions of law
A. Issue

The issue in this case is whether Petitioner was convicted of a criminal offense as
described at section | 128(a)(2) of the Act, thereby mandating that she be excluded for a
minimum of five years.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this
case. I set forth each Finding as a separate heading.

1. Petitioner was convicted of a criminal offense.

“Convicted” is defined at section | 128(i) of the Act to include all of the following
circumstances:

(1) when a judgment of conviction has been entered against the individual .
. . by a Federal, State, or local court .. . ;

(2) when there has been a finding of guilt .. . by a Federal, State, or local
court ...;

(3) when a plea of guilty or nolo contendere . . . has been accepted by a
Federal, State, or local court; or

(4) when the individual . . . has entered into participation in a first offender,
deferred adjudication, or other arrangement or program where judgment of
conviction has been withheld.

Act, section 1128(i)(1)-(4).

The I.G. asserts that Petitioner was convicted of a criminal offense as defined by section
1128(i)(4). The I.G. offered evidence that on August 7, 2008, Petitioner pled guilty in the
lowa District Court of Polk County to “wanton neglect of a resident of a healthcare
facility” in violation of lowa Code section 726.7(3). I.G. Exs. 2, 3. Adjudication of guilt
was deferred pending Petitioner’s successful completion of conditions of probation.
Upon successful completion of probation Petitioner’s record was to be expunged. I.G.
Ex. 3.
Petitioner asserts that she was not convicted of a criminal offense or an offense for which
exclusion is required because “[a]ccording to my Attorney deferral isn’t a conviction” and
“[d]ue to what my Attorney & the County Attorney both say it’s not a conviction.”
Informal Brief of Petitioner at 2.

Petitioner's guilty plea and deferred judgment fits within the definition of a conviction as
stated at section 1128(i)(4) of the Act. Section 1128(i)(4) makes it clear that a deferred
adjudication program or a program in which an individual pleads guilty to an offense but
where a final judgment of conviction has been withheld is nonetheless a conviction for
purposes of section 1128(a)(2) of the Act.

2. Petitioner’ conviction was of an offense described at section
1128(a)(2) of the Act.

The evidence offered by the I.G. establishes that Petitioner was convicted of a crime
described at section | 128(a)(2) of the Act. Petitioner has offered no evidence in rebuttal.

Petitioner does not dispute that she pled guilty to resolve criminal charges that were made
against her in an Amended Trial Information filed on August 12, 2008, charging her with
wanton neglect of a resident of a healthcare facility.’ IG. Ex. 2, at 2. The Amended
Information alleged that:

(O]n or about the 26 day of April, 2006, in the County of Polk and State of Iowa,
the defendant did unlawfully and willfully: Knowingly acted in a manner likely

to be injurious to the physical or mental welfare of . . . a resident (dependent adult)
of a Healthcare Facility in violation of Section 726.7(3) of the Code of Iowa.

Id. Section 726.7(3) states that “[a] person who commits wanton neglect not resulting in
serious injury to a resident of a health care facility is guilty of an aggravated
misdemeanor.”

Petitioner does not dispute that the criminal offense to which she pled guilty involved an
incident which occurred during her employment as an L.P.N. by Valley View Village, a
skilled nursing facility in Des Moines, Iowa.’ I.G. Exs. 5, 6. Investigations by the lowa

' The original Trial Information charged Petitioner with dependant adult abuse, a felony.
1.G. Ex. 2, at 1.

> Petitioner stated in her hearing request that she had “witnesses to the fact that during

the course of this case that the truth was not told about the events in the night of

question.” In her brief Petitioner did not list these witnesses or expound on her statement.
(continued...)
Medicaid Fraud Control Unit and the Des Moines Iowa Police Department found that on
April 25, 2006°, while performing her duties as an L.P.N., Petitioner physically restrained
a 92-year-old resident in order to forcibly cut her fingernails. /d. Petitioner nicked and
caused bleeding to the end of the resident’s left ring finger and bruising to both wrists.
/d. Petitioner also forcibly removed the resident’s dentures without consent. /d.

For purposes of exclusion under section 1128(a)(2) of the Act, Petitioner's criminal
offense need only relate to neglect or abuse of a patient in connection with the delivery of
a health care item or service. There is no question that Petitioner’s criminal offense was
so related. The resident in question was Petitioner’s patient (see 42 C.F.R.

§ 1001.2) and Petitioner was providing health care services to her in her position as an
L.P.N. at the nursing facility. Petitioner’s criminal conviction was specifically for wanton
neglect of the resident and her actions reflect abuse of that resident under any common
definition of the term.

3. Petitioner S five-year exclusion is the minimum mandated by law.

An exclusion of at least five years is mandatory for an individual who has been convicted
of an offense that is described at section 1128(a)(2) of the Act. Act, §1128(c)(3)(B).
Thus, Petitioner’s exclusion is reasonable as a matter of law inasmuch as she was
excluded for the minimum mandatory period.

*(continued.. )

However, even if Petitioner had attempted to bring forth such witnesses, I would have no
authority to hear them. The I.G.’s mandate to exclude Petitioner derives from her
conviction of a crime described at section 1128(a)(2). The derivative nature of the
exclusion requirement bars Petitioner from arguing before me that she is not, in fact,
guilty of the crime to which she pled.

> The Amended Trial Information notes that the incident occurred on or about April 26,
2006 and Petitioner’s Guilty Plea and Deferred Judgment notes the offense date as April
6, 2006. The Criminal No. (205883) is the same for both documents and the
inconsistency between these documents and the reports of the lowa Medicaid Fraud
Control Unit and the Des Moines Iowa Police Department that the offense occurred on
April 25, 2006 are not material.
4. Lam not authorized to consider Petitioner’s other arguments or they
are otherwise irrelevant.

In her hearing request Petitioner asserts that “Constitutional Laws . . . have been violated
in this case. I feel that my rights to the Miranda Laws were violated and that during this
time evidence was suppressed in this case as well.” She also states “I also need to show
that not everyone here is treated equally under the law in this state. I mean that two
people can do the same thing but only one gets accused of a crime.” Petitioner did not
expound on her assertions in her brief, only stating that there was a conflict between state
and federal law and that she has the right to face her accusers. | am unable to address
Petitioner’s arguments both because Petitioner does not explain what they are and
because as an administrative law judge I have no authority to hear arguments concerning
constitutional issues. Moreover, with regard to her argument that evidence may have
been suppressed, I am, as noted previously, unable to look behind her conviction as her
exclusion is derivative of her conviction.

Petitioner also asserts that her attorney and the district attorney handling her case gave her
“wrong information” based on which she “made decisions that I might not have made
regarding this case.” It is irrelevant why an excluded individual elects to plead guilty to
an offense falling within the purview of section 1128(a)(2). Once an individual is
convicted of an offense under section 1 128(a}2), the mandatory exclusion requirement is
triggered.

/s/ Steven T. Kessel
Administrative Law Judge


Westlaw.

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DAB No. CR1982 (2009), Med & Med GD (CCH) P 121929, 2009 WL 3353352 (H.H.S.)

Department of Health and Human Services (H.H.S.)
Departmental Appeals Board

Civil Remedies Division
IN THE CASE OF: US ULTRASOUND, PETITIONER
v.
CENTERS FOR MEDICARE & MEDICAID SERVICES

Docket No. C-09-428
Decision No.
CR1982

July 31, 2009
DECISION

This case is before me on the Centers for Medicare & Medicaid Services' (CMS) motion for summary disposition. I
find and conclude that CMS properly denied Medicare supplier status and billing privileges to Petitioner, US Ultra-
sound, which sought to participate in the Medicare program as an Independent Diagnostic Testing Facility (IDTF).
Accordingly, I uphold the April 17, 2009 decision of the Medicare Hearing Officer.

I. Procedural History

Medicare carrier Wisconsin Physicians Service Insurance Corporation (WPS) received applications from Petitioner to
enroll two IDTFs, [FN1] one in Kansas and one in Missouri. The applications were reviewed together and had the
same information except as to geographical area for services provided, although separate provider transaction access
numbers (PTANs) were to be issued for the Kansas and Missouri locations. See CMS Exhibit (Ex.) 6. The control
number for the Kansas location was 1708120239000 and the

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control number for the Missouri location was 2608148239000. See CMS Exs. 1, 3; Petitioner Exhibits (P. Exs.) 1, 2; P.
Ex. 4 (WPS letters of January 6, 2008).[FN2

By letters dated September 11, 2008, WPS informed Petitioner that it had approved its enrollment applications and
provided PTANs for the Kansas and Missouri locations. WPS specifically informed Petitioner that the September 11,
2008 letters were the only notification letters that WPS would be sending. WPS stated that Petitioner's effective date of
participation was June 15, 2008. WPS then notified Petitioner of what it needed to do to maintain its active enrollment
status in the Medicare program. CMS Ex. 3; P. Ex. 1; P. Ex. 4 (September 11, 2008 letters referencing the control
numbers for the Kansas and Missouri locations). Petitioner began providing services and, before being informed that
the approval of its enrollment had been made in error, provided services to Medicare beneficiaries totaling approx-
imately $11,600. Petitioner's Brief (P. Brief) at 2; P. Ex. 3.

By letters dated November 20, 2008 (over two months after Petitioner was notified that it had been approved for

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enrollment), Petitioner was notified by WPS that it would not be taking any action to process its applications because:
After further review of your application, it was determined that we cannot issue/release your Medicare PTAN.
The equipment that you are listing on your application is owned by Alliance Radiology, they are also responsible
for the calibration and maintenance of the equipment. The agreement that was inclosed [sic] indicates that Al-
liance Radiology provides the technical and professional services. Alliance Radiology provides technical staff,
equipment and the transportation. US Ultrasound pays Alliance Radiology a professional fee for the professional
services (billing, scheduling and patient records). Alliance Radiology is the entity that will need to be set up as the
Independent Diagnostic Testing Facility.

CMS Ex. 4; P. Ex. 2. The letters did not refer to the fact that WPS had notified Petitioner two months previously that
its applications had been approved. Both the September and November letters were signed by the same individual —
WPS employee Jessica Foglia.

By letter dated January 6, 2009, signed by Ms. Foglia, WPS informed Petitioner that its request to enroll in Medicare
for the Kansas location was denied because it did not “meet the conditions of enrollment or meet the requirements to
qualify as a Medicare provider/supplier” because the “[e]ntity performing the services on the Kansas application is not
the entity who is enrolling."CMS Ex. 1.

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On January 22, 2009, in a letter signed by Janice Warner, WPS informed Petitioner that the September 11, 2008 letters
with PTANs assigned were sent to Petitioner “in error as the processing of your applications was not com-
pleted.” Instead, letters sent to Petitioner on January 6, 2009, titled “Denial of Medicare Provider/Supplier Enrollment
Application,” were, according to Ms. Warner, “the letters you should have originally received.”CMS Ex. 5.

Petitioner requested reconsideration of the January 6, 2009 determination. A Medicare Hearing Officer upheld the
January 6, 2009 determination with regard to control number 170812039000, the Kansas location. The Medicare
Hearing Officer referenced 42 C.F.R. § 424.530(a)(1) in finding that “[t]he entity performing the services on the
Kansas application to add additional equipment is not the entity that is enrolling.”[FN3] The Medicare Hearing officer
wrote:
Alliance Radiology owns the equipment that is listed on the application; they are also responsible for the cali-
bration and maintenance of the equipment. The agreement that was enclosed indicates that Alliance Radiology
provides the technical and professional services. Alliance Radiology provides technical staff, equipment and the
transportation. US Ultrasound pays Alliance Radiology a professional fee for the professional services (billing,
scheduling and patient records). Alliance Radiology is the entity that will need to be set up as the Independent
Diagnostic Testing Facility.

CMS Ex. 2; P. Ex. 4 (April 17, 2009 Medicare Hearing Officer decision).

By letter dated April 28, 2009, Petitioner requested a hearing. Petitioner asserted that after being “very open” about
how it intended to provide services, its “services were ... approved to start on 6/15/08 ... later we received notice that
our approval was rescinded, after we had already start[ed] providing services.”Petitioner believed that it had been
treated “unfairly, slowly, [and] unprofessionally,” and “WPS does not understand that they cannot say that it is alright
to start services, then retract it and say no back to the start.” April 28, 2009 hearing request.

The case was assigned to me for hearing and decision on May 5, 2009. I held a prehearing conference in the case, by
telephone, on May 18, 2009. By Order dated May 19, 2009, I set a schedule for the parties to brief the case. On June 9,
2009 (with a corrected copy filed on June 12, 2009), CMS filed a motion for summary disposition and supporting brief
(CMS Brief), accompanied by CMS Exs. 1-6. On June 30, 2009, Petitioner filed its response (P. Brief), accompanied
by P. Exs. 1-3, and, as noted, I have:

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marked the attachments to Petitioner's hearing request as P. Ex. 4. CMS filed its reply (CMS Reply) on July 9, 2009. In
the absence of objection, I admit CMS Exs. 1-6 and P. Exs. 1-4.

II. Legal Background
Section 1866(j)(1) of the Act, 42 U.S.C. § 1395cc(j)(1), authorizes the Secretary of Health and Human Services
(Secretary) to establish a process for the enrollment in the Medicare program of providers of services and suppliers.
The Secretary published a final rule governing the enrollment of providers and suppliers, with an effective date of June
20, 2006 (71 Fed. Reg. 20754, 20776 (April 21, 2006)). These regulations are found at 42 C.F.R. Part 424, subpart P,
and establish requirements for enrollment:
To receive payment for covered Medicare items or services from either Medicare (in the case of an assigned
claim) or a Medicare beneficiary (in the case of an unassigned claim), a provider or supplier must be enrolled in
the Medicare program. Once enrolled, the provider or supplier receives billing privileges and is issued a valid
billing number effective for the date a claim was submitted for an item that was furnished or a service that was
rendered.

42 C.F.R. § 424.505.

The Medicare enrollment process begins with submission of an enrollment application on the form CMS-855. A
prospective provider or supplier must provide all documentation required by CMS to ascertain whether the provider or
supplier is eligible to furnish services. 42 C.F.R. § 424.510(d)(2). Prospective providers and suppliers may also be
subject to specific enrollment requirements relative to their particular specialization. Applicable certification stan-
dards for IDTFs are found at 42 C.F.R. § 410.33(g).

Regulations define the circumstances in which CMS may reject the application of a provider or supplier to participate
in the Medicare program, or may revoke an enrollment already granted. CMS may deny a provider or supplier's
enrollment in Medicare if “[t]he provider or supplier at any time is found not to be in compliance with the Medicare
enrollment requirements described in this section or on the applicable enrollment application to the type of provider or
supplier enrolling, and has not submitted a plan of corrective action as outlined in part 488 of this chapter.”42 C.F.R. §
424.530(a)(1).

Section 1866(j)(2) of the Act, 42 U.S.C. § 1395cc(j)(2), gives providers and suppliers appeal rights for certain de-
terminations involving enrollment, using the procedures that apply under section 1866(h)(1)(A) of the Act, 42 U.S.C.
§ 1395ec(h)(1)(A). These procedures are set out at 42 C.F.R. Part 498, et seq., and provide for hearings before ad-
ministrative law judges (ALJs) of this forum, and for review of the resulting ALJ decisions by the Departmental
Appeals Board (Board).

HHS 4

In provider and supplier appeals under section 1866()(1) of the Act and 42 C.F.R. Part 498, CMS must make a prima

facie showing that the provider or supplier has failed to comply substantially with federal requirements. See Medi-
source Corporation, DAB No. 2011 (2006). To prevail, the provider or supplier must overcome CMS's prima facie
showing by a preponderance of the evidence. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004), aff'd,
Batavia Nursing and Convalescent Center v. Thompson, 129 Fed. Appx. 181 (6th Cir. 2005).

TI. Issues
The issues before me are whether:
1. Petitioner satisfied the requirements necessary to participate in the Medicare program as an IDTF; and

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(H.HS.)

2. CMS's approval of Petitioner's enrollment on September 11, 2008 entitles it to reimbursement for the ap-
proximately $11,600 Petitioner billed in reliance on that approval.

IV. Findings of Fact and Conclusions of Law
1, Summary judgment is appropriate.
2. Petitioner did not satisfy the requirements necessary to participate in Medicare as an IDTF.
3. Petitioner is not entitled to reimbursement for services provided to Medicare beneficiaries during the period
that CMS erroneously approved its enrollment application.

V. Discussion

CMS has moved for resolution of the issues in its favor by its motion for summary disposition. While FED. R. CIV. P.
56 is not directly applicable to proceedings under 42 C.F.R. Part 498, it does provide guidance for the standard of
review for motions seeking summary disposition. Summary judgment is generally appropriate when the record reveals
that no genuine dispute exists as to any material fact and the undisputed facts clearly demonstrate that one party is
entitled to judgment as a matter of law. White Lake Family Medicine, P.C., DAB No. 1951 (2004). In evaluating
whether there is a genuine issue as to a material fact, an ALJ must view the facts and the inferences reasonably to be
drawn from the facts in the light most favorable to the nonmoving party. See Pollock v. American Tel. & Tel. Lon;
Lines, 794 F.2d 860, 864 (3rd Cir. 1986); Oklahoma Heart

HHS 5

Hospital, DAB No. 2183, at 9 (2008); Brightview Care Center, DAB No. 2132, at 9-10 (2007); Madison Health Care,
Inc., DAB No. 1927, at 3-7 (2004). I employ that standard here.

The parties do not disagree concerning the material facts in the case. Their disagreement lies in their views with regard
to their position on the application of the law to the facts. Thus, in this case, decision by summary disposition is ap-
propriate.

Petitioner argues that while CMS has characterized the case as one of a supplier [FN4] who anticipated approval of
enrollment and rendered services only to learn that the anticipated approval was not forthcoming (whether or not in
reliance on a government employee), the case really involves an attempt by CMS to revoke an approved supplier's
(Petitioner's) status. Petitioner notes the consequences with respect to a case where an approval is revoked and a
pending application is ultimately denied. In the case where a supplier's status is revoked, the supplier may still charge
for services rendered. See42 C.F.R. § 424.535(g); 42 C.F.R. § 405.874. In contrast, a supplier who was never approved
for enrollment is unable to submit charges and cannot be paid for services rendered. In light of this, Petitioner asks that
I find, based on the undisputed facts:
(i) that U.S. Ultrasound was approved as a [supplier] on September 11, 2008; (ii) that U.S. Ultrasound provided
services in accordance with that approved status; (iii) that CMS sought to revoke such status by its letters in
November of 2008 and January of 2009; but, (iv) that even assuming arguendo that such revocation was effective,
U.S. Ultrasound is entitled to payment for services rendered while it was an approved [supplier].

P. Brief at 6. I sympathize with Petitioner's position, and note that Petitioner applied to enroll in Medicare in good faith
and then provided its services in good faith and in reliance on CMS's explicitly-expressed, if erroneous, acceptance of
its enrollment application. However, where a provider or supplier does not meet Medicare enrollment requirements
Medicare cannot reimburse the provider or supplier. Significantly, Petitioner has not asserted that it did, in fact, meet
Medicare enrollment requirements for IDTFs — asserting only that while CMS offered an alleged basis for revoking
eligibility, CMS did not offer any reason why the initial action approving participation was not valid. See P. Brief at
1-6.

CMS asserts that Petitioner's enrollment application was properly denied because Petitioner failed substantially to

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(H.HS.)

comply with federal requirements applicable to enrollment as an IDTF. An IDTF is considered a supplier under
Medicare, and a supplier is defined by regulation as “a physician or other practitioner, or an entity other than a

HHS 6

provider that furnishes health care services under Medicare.” 42 C.F.R. § 400.402. CMS asserts that Petitioner cannot
establish that it furnishes a health care service. This is because WPS's review of Petitioner's application showed Pe-
titioner did not own any equipment, was not responsible for the calibration and maintenance of any equipment, and
was not responsible for either technical (actually performing or administering a test) or professional (reading or in-
terpreting the data obtained by a test) services. CMS Ex. 2. CMS asserts that under Petitioner's contract with Alliance
Radiology, Petitioner did nothing that could be construed as furnishing a service, citing CMS Ex. 6, at 244-45.

CMS asserts specifically in support of its position that an IDTF certifies in its enrollment application that it meets
certain standards and related requirements. 42 C.F.R. § 410.33(g). An IDTF is required to “maintain a catalogue of
portable diagnostic equipment,” to “[mJake portable diagnostic testing equipment available for inspection,” and to
“[mlJaintain a current inventory of diagnostic testing equipment, including serial and registration numbers ....”42
C.P.R. § 410.33(g)(4). CMS asserts that under the contract with Alliance Radiology, Petitioner only received lists of
equipment maintained by Alliance and there was no provision in the contract for making equipment available, citing
CMS Ex. 6, at 253. CMS asserts the reasonable conclusion is that Alliance Radiology is the entity performing the
services, not Petitioner. CMS Ex. 2. CMS notes that although supplier regulations for durable medical equipment,
prosthetics, orthotics and supplies (DMEPOS) allow for contracting Medicare items or services, the absence of such
recognition of contracting in the IDTF regulations supports a conclusion that such contracting is not contemplated for
IDTF suppliers. CMS Brief at 7. CMS also notes that the Medicare Claims Processing Manual (MCPM), at Pub.
100-04, Ch. 13, § 20.2.4.2. (in a section related to radiology services) allows a physician to submit a claim for the
technical component of diagnostic tests purchased from another provider or supplier, and for a diagnostic test supplier
to make a claim for the purchase of a physician's test interpretation. However, the provisions require the claiming
entity to have provided either the technical or professional element of the service, as applicable. CMS avers this is
consistent with the general view that a potential enrollee must furnish a service and supports CMS's denial of
enrollment to Petitioner who furnished neither the technical or the professional element here. CMS Brief at 7.

CMS also asserts that Petitioner's request for reimbursement for the services it provided based on CMS's apparent
acceptance of its enrollment application is in the nature of equitable relief, which relief cannot be granted in this
forum. I agree with CMS that as an ALJ my authority is limited and does not extend to awarding money damages
based on equitable theories or deciding claims against CMS based on equitable estoppel. See Oklahoma Heart Hos-
pital, DAB CR1719, at 10 (2008), aff'd, Oklahoma Heart Hospital, DAB No. 2183. Nothing in the Act or the regu-
lations obligates or enables CMS to certify an applicant to participate in Medicare based on the communication of
erroneous information given to the facility by an employee of a contractor. See University Behavioral Health of El
Paso, DAB CR1880, at 6 (2009); Danville HealthCare Surgery

HHS 7

Center, DAB CR892 (2002). As stated by another ALJ, “[i]t is well-settled that erroneous information from gov-
ernment employees does not rise to estoppel against the government or entitle the recipient of incorrect information to
monetary payments not otherwise permitted by law.” Surgery Center of Southwest Kansas, DAB CR619, at 7 (1999).

Petitioner asserts that the cases cited by CMS in support of its position (Oklahoma Heart Hospital, DAB CR1719 and
Danville HealthCare Surgery Center, DAB CR892), dealt with services provided prior to the effective date of the
provider or supplier's participation or based on verbal assurance from a WPS employee. Petitioner asserts that, in
contrast, Petitioner was approved as a supplier. But, Petitioner did not establish its substantial compliance with par-
ticipation requirements, and CMS has explained why Petitioner did not, and could not, establish as constituted its

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(H.HS.)

substantial compliance with IDTF enrollment requirements due to the nature of its contract with Alliance Radiology.

There need be no misunderstanding: this is an unfortunate result. Through no mistake or misstatement of its own,
Petitioner was erroneously assured by WPS that it had been enrolled in Medicare. Petitioner acted perfectly reasonably
in relying on that erroneous assurance. Later, when WPS's error was discovered and Petitioner was told that it was not
eligible for enrollment, it sustained losses because of its perfectly-reasonable reliance on WPS's error. But nothing in
the Act or regulations obligates or permits CMS to certify Petitioner to participate in Medicare where Petitioner does
not meet IDTF enrollment requirements. Moreover, I do not have the authority to enroll Petitioner in the program at a
time when it did not meet IDTF enrollment requirements or to require CMS to pay Petitioner where such payment is
not permitted by law. However heavily the equities in this case may favor Petitioner, and however poorly WPS may
have served the Medicare program in this case, I simply lack the authority to make Petitioner whole.

VI. Conclusion
For the reasons set out above, I grant CMS's motion for summary disposition.

Richard J. Smith
Administrative Law Judge

FN1. The Social Security Act (Act) identifies an IDTF as a “supplier” furnishing items or services under Medicare as
opposed to a “provider” of services. Act, sections 1861(d) and 1861(u); 42 U.S.C. §§ 1395x(d) and 1395x(u).

FN2. Petitioner appended a number of documents to its hearing request. I am marking these documents as P. Ex. 4.

FN3. The parties did not provide the Medicare Hearing Officer decision with respect to the Missouri location. I note
there are no material differences in the facts regarding the two locations and Petitioner's enrollment has been denied
for both locations.

FN4. Petitioner refers to itself as a “provider.” However, as “provider” and “supplier” are terms of art under the reg-
ulations, I refer to Petitioner as a “supplier.”

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END OF DOCUMENT

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