Department of Health And Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)

James Latimer, M.D., ) Date: March 19, 2007
)
Petitioner, )

) Docket No. C-06-466

-V.- ) Decision No. CR1578
)
The Inspector General. )
)

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, James
Latimer, M.D., from participating in Medicare, Medicaid, and all federal health care
programs, until he regains his license to practice medicine in the State of New York. The
1.G. is authorized to impose this exclusion pursuant to section 1128(b)(4)(B) of the Social
Security Act (Act) because Petitioner surrendered his license to practice medicine while a
formal disciplinary proceeding was pending against him in New York which concerned
his professional competence and professional performance.

I. BACKGROUND

On March 31, 2006, the I.G. notified Petitioner that he was being excluded from
participation in the Medicare, Medicaid, and all federal health care programs pursuant to
the requirements of section 1128(b)(4) of the Act. Petitioner requested a hearing and the
case was assigned to me for a hearing and a decision. During a prehearing conference on
September 11, 2006, the parties agreed to submit the case for decision on a written record.
The I.G. submitted a motion for summary affirmance' (I.G. Br.), accompanied by I.G.

+ The LG. titled his brief a “motion for summary affirmance.” However, I do not
decide this case by summary judgement or affirmance. Instead, I am deciding the case
based on the written record submitted. I note, however, that neither party asserts that
there are material facts in dispute.
2

exhibits (I.G. Exs.) 1-6. Petitioner submitted a brief in opposition (P. Br.), accompanied
by Petitioner’s exhibits (P. Exs.) A-K, and the I.G. submitted a reply (I.G. Reply Br.).
Neither party objected to admission of the other party’s exhibits. I therefore receive into
evidence I.G. Exs. 1-6 and P. Exs. A-K.

II. ISSUE

The only issue in this case is whether Petitioner surrendered his license to practice
medicine in New York while a formal disciplinary proceeding was pending against him
that related to his professional competence or professional performance.”

III. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DISCUSSION

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

1. The I.G. is authorized to exclude Petitioner pursuant to section
1128(b)(4)(B) of the Act, because Petitioner surrendered his license to practice
medicine in New York while a formal disciplinary proceeding was pending in that
State which concerned his professional competence and professional performance.

Section 1128(b)(4)(B) of the Act authorizes the I.G. to exclude an individual who
surrenders a state license to provide health care while a formal disciplinary proceeding is
pending before a state licensing authority and the proceeding concerns the individual’s
professional competence, professional performance, or financial integrity. The I.G.
asserts that the facts of this case establish a basis to exclude Petitioner pursuant to this
section of the Act. Petitioner disagrees, arguing that he did not surrender his medical
license while formal disciplinary proceedings were pending (and also arguing that the
scope of the I.G. exclusion is unfairly broad, which I discuss in Finding 2). I find that, in
fact, Petitioner did surrender his medical license while a formal disciplinary proceeding
was pending which related to his professional competence and professional performance
(but not to his financial integrity, which the 1G. did not allege).

2 I note that I do not have the authority to decide whether the I.G. should have
used his discretion and not excluded Petitioner (42 C.F.R. § 1005.4(c)(5)), nor do I have
the authority to decide here that the term of Petitioner’s exclusion is unreasonable, as it is
the term required by law. Act, section 1128(c)(3)(E).
3

The sequence of events surrounding the surrender of Petitioner’s medical license are as
follows and materially uncontested. In September 2005S, Petitioner signed an agreement
with the Acting District Attorney for St. Lawrence County, New York (Prosecutor), in
which he agreed to surrender his medical license in exchange for the Prosecutor not
bringing criminal charges against him. P. Ex. H. It was signed by the Prosecutor on
October 7, 2005. Jd. On October 12, 2005, Petitioner filed an application to surrender his
medical license with the New York State Board for Professional Medical Conduct (New
York Board). P. Ex. I. The application stated that “I understand the New York State
Board . . . has charged me with one specification of professional misco[nduct].” Jd. On
October 20, 2005, the New York Board filed a Statement of Charges against Petitioner
alleging that Petitioner had committed professional misconduct by practicing medicine
with negligence on more than one occasion. The Statement of Charges alleged
specifically that Petitioner had negligently prescribed excessive doses of narcotic
medications containing acetaminophen to two patients. P. Ex. J; P. Br. at 5. On October
28, 2005, the New York Board accepted Petitioner’s surrender, and the surrender became
effective on November 8, 2005. P. Ex. K; 1G. Ex. 6.

Petitioner admits that he surrendered his license. Petitioner does not contest that the
surrender related to his professional competence and professional performance.’ Instead,
Petitioner argues only that, because he submitted his application to surrender his medical
license on October 12, 2005, and the New York Board did not file its Statement of
Charges until October 20, 2005, he did not surrender his license pending a formal
disciplinary hearing. P. Br. at 7-10. Petitioner’s argument is unavailing.

The purpose behind section 1128(b)(4)(B) is to “prevent unfit practitioners from avoiding
exclusion through the expedient of surrendering their license before the State can
conclude proceedings against them.” John W. Foderick, M.D., DAB CR43 (1989), aff’d.,
DAB No. 1125 (1990). Foderick defines a “formal disciplinary hearing” as “a license
proceeding which places a party’s license in jeopardy and which provides that party with
an opportunity to defend against charges which might result in license suspension or
revocation.” Jd. The decision states further that “[t]he law presumes that an individual or
entity who surrenders a health care license in the face of charges, and in the circumstance
where he has the opportunity to defend himself, is as likely to be untrustworthy as the

3 If Petitioner had contested whether or not his surrender related to his
professional competence or professional performance, I would have found the surrender
so related. This is because a finding that a physician practiced medicine with negligence
necessarily and on its face relates to a physician’s professional competence and
professional performance.
4

individual or entity who loses a license after litigating the issue...” Jd. The hearing
does not have to take place or be scheduled for the surrender to have been while formal
disciplinary proceedings were pending. See, e.g., April Ann May, P.A., DAB CR1089
(2003).

Petitioner’s license surrender comports with the intent of the law, which is to prevent
practitioners from avoiding exclusion by surrendering their license during the pendency
of state proceedings against them. Petitioner’s October 12, 2005 application to surrender
his license stated that he understand that the New York Board had charged him with
professional misconduct. P. Ex. I. This statement shows that Petitioner was specifically
aware that he was facing charges of professional misconduct before he filed the
application and that he was aware that his license was in jeopardy. Had Petitioner not
surrendered his license there would have been a formal hearing at which he would have
had the chance to defend against the New York Board’s charges. Moreover, Petitioner
did not surrender his license until after the New York Board filed charges against him. I
agree with the I.G. that Petitioner’s October 12, 2005 application to surrender his license
was simply a request to surrender his license, which was not accepted until the New York
Board acted and accepted the surrender on October 28, 2005, after the New York Board
had filed its Statement of Charges on October 20, 2005. See Maurice Labbe, DAB
CR488 (1997).

2. Iam without authority to address the scope of Petitioner’s exclusion.

Petitioner argues that his exclusion is too broad in scope, in that it excludes him not only
from work related to his activities as a physician, but to employment in other capacities
by hospitals, nursing homes, or other institutions participating in federal health care
programs or other federal programs. P. Br. at 10.

I do not have the authority to consider or alter the scope of an I.G. exclusion. My
authority here is limited to determining whether there is a basis for the I.G. to exclude
Petitioner, which I have done. 42 C.F.R. § 1001.2007 (and, as noted above, as the I.G.
has excluded Petitioner for the statutory term of exclusion, there is no issue regarding
whether the length or term of his exclusion is unreasonable). Thus, although the I.G. has
addressed and discussed the law surrounding the scope of Petitioner’s exclusion (I.G.
Reply Br. at 7-10), I decline to address it as I do not have the authority to consider it.
IV. CONCLUSION

For the foregoing reasons, I sustain the I.G.’s exclusion of Petitioner until Petitioner
regains his license to practice medicine in New York.

/s/

Alfonso J. Montano
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Date: March 13, 2007
Odebolt Nursing & Rehabilitation Center,

locket No. C-04-262
ecision No. CR1574

Petitioner,
v.

Centers for Medicare & Medicaid Services.

SSS SSS SH EE EL
whe)

DECISION

Petitioner, Odebolt Nursing & Rehabilitation Center, violated 42 C.F.R. § 483.25(h)(2)
on November 11, 2003. A per instance civil money penalty (PICMP) of $2000.00 is
reasonable.

I. Background

Petitioner, is a long-term care facility located in Odebolt, Iowa that participates in the
Medicare and Medicaid programs. The lowa Department of Inspection & Appeals (the
state agency) conducted a complaint survey and an abbreviated extended survey of
Petitioner’s facility from January 6 through 12, 2004. The state agency found that
Petitioner was not in substantial compliance with Medicare and Medicaid participation
requirements during the period November 11 through 25, 2003, and cited Petitioner for
violation of 42 C.F.R. § 483.25(h)(2) (Tag F 324)! and alleged that the deficiency
presented immediate jeopardy for Petitioner’s residents. The Centers for Medicare &
Medicaid Services (CMS) notified Petitioner by letter dated January 30, 2004, that it was
imposing a $2000 per-instance civil money penalty (PICMP) as recommended by the state
agency. This case was initiated by Petitioner’s request for a hearing dated March 26,
2004.

' All references are to the version of the Code of Federal Regulations (C.F.R.) in
effect at the time of the survey, unless otherwise indicated.
2

The case was assigned to me for hearing and decision on April 13, 2004. I convened a
one-day hearing in this case on February 2, 2006, in Des Moines, Iowa. A 197-page
transcript (Tr.) of the proceedings was prepared. CMS offered and I admitted CMS
exhibits (CMS Exs.) | through 10. Tr. 16. Petitioner offered and I admitted Petitioner
Exhibits (P. Exs.) 1 through 8. Tr. 29, 155. CMS offered the testimony of the state
agency surveyor, Sharon Benson. Petitioner called one witness, John Schuttinga,
Petitioner’s Administrator. Petitioner filed a post-hearing brief (P. Brief) and a reply
brief (P. Reply). CMS filed a post-hearing brief (CMS Br.) and reply (CMS Reply).

Il. Discussion
A. Findings of Fact

The following findings of fact are based upon the parties joint stipulation (Jt. Stip.), the
testimony at hearing, and the exhibits admitted at hearing. Citations to exhibit numbers
related to each finding of fact may be found in the analysis section of this decision if not
indicated here.’

1. Petitioner is a long-term care facility located in Odebolt, Iowa. Jt. Stip.

2. The state agency conducted a complaint survey and an abbreviated extended
survey of Petitioner’s facility on January 6 through 12, 2004. Jt. Stip.

3. The state agency issued a Statement of Deficiencies (SOD) dated January 12,
2004, that alleges that Petitioner was not in substantial compliance with federal
requirements for nursing homes participating in the Medicare and Medicaid
programs based upon an alleged violation of 42 C.F.R. §483.25(h)(2) (Tag F324),
cited at a scope/severity level of "J" indicating "immediate jeopardy." Jt. Stip.;
CMS Exs. 1, 10.

4. CMS notified Petitioner by letter dated January 30, 2004, that it was imposing a
per instance civil money penalty in the amount of $2000.00 as an enforcement
remedy. Jt. Stip.; CMS Ex. 10.

5. Petitioner requested a hearing by an administrative law judge (ALJ) by letter dated
March 26, 2004.

? The parties proposed findings of fact submitted post hearing reflect that there is
little dispute about the facts in this case.
10.

11.

12.

13.

14.

15.

3

The alleged violation of 42 C.F.R. § 483.25(h)(2) involved a single resident
referred to as Resident 8. Jt. Stip.; CMS Ex. 1.

Resident 8 was admitted to Petitioner's facility in August 2000. Tr. 46.

Resident 8 made 22 attempts to leave the facility following his admission — 5
attempts in 2000, 12 in 2001, 3 attempts in 2002, and 1 attempt during the first 10
months of 2003. Tr. 46, 51, 77-78, 149-50; P. Brief at 4.

Based on the resident's behavior, the facility assessed the resident at risk for
elopement and implemented several interventions in his care plan, including
observation for anxiety and agitation, diversion activities, reality orientation, and
use of a WanderGuard® . Tr. 75-76; P. Ex. 1, at p. 7; CMS Ex. 7, at 43-45.

Petitioner also assessed Resident 8 as being at risk for falls and had a care plan for
falls with interventions that included accompanying him outdoors when he wished
to go out, keeping the WanderGuard® on at all times, and encouraging him to
wear shoes. CMS Ex. 7, at 45.

Petitioner had alarms on each of its doors, except a kitchen service door that was
not accessible to residents, and alarms were triggered by opening a door, except for
the front door which was outfitted with the WanderGuard® alarm that was
triggered whenever a resident wearing a device approached the door too closely.
Tr. 144-45.

The door alarms were controlled by a panel of switches that did not have a cover,
located at the nurses' station and each door had a corresponding switch and button
that allowed each door alarm to be turned on, off, and to be reset. Tr. 63, 145,
153-57; P. Ex. 6.

The door alarms were checked on a daily basis during the morning as part of the
facility's quality assurance program as well as weekly by the maintenance
department. Tr. 146-49; P. Ex. 2.

The door alarm check protocol was followed on November 11, 2003, and the
alarms were functioning that morning. Tr. 147; P. Ex. 2, at 4-5.

On November 11, 2003 at approximately 8:10 pm, staff assisted Resident 8 to bed;
he was observed by staff to be asleep in bed at approximately 8:30 pm; and staff
observed that the resident’s door was closed at 9 pm. Tr. 160.
16.

17.

18.

19.

20.

21.

22.

23.

24.

4

On November 11, 2003 at approximately 9:25 to 9:30 pm, staff observed that
Resident 8’s room door was open and the resident was absent. Tr. 161; CMS Ex.
9, at 47-48.

After Resident 8 was discovered missing from his room, staff observed that the
stop sign attached to the frame of the emergency exit door near Resident 8's room
was pulled down, the door was ajar, and staff noted a trail of fecal matter to the
door. Tr. 162-63; CMS Ex. 9, at 47-48.

Staff immediately searched the area outside the door and found the resident, naked
from the waist down, with shoes, but no socks, laying in the grass approximately
150 feet from the door. Tr. 164-67; CMS Ex. 1, at 3-5; CMS Ex. 7, at 12, 20-21;
CMS Ex. 9, at 47-48.

Nursing assessments revealed that the resident had normal vital signs and
sustained minor abrasions to his elbows and knees, but was not hospitalized nor
seen by his treating physician who was notified of the event. Tr. 1168-69; CMS
Ex. 7, at 12.

Resident exited through the emergency exit near his room but the alarm on that
exit did not sound.

Petitioner failed to ensure that the alarm on the emergency door through which
Resident 8 exited the facility was operating at the time Resident 8 exited on
November 11, 2003.

Petitioner investigated the circumstances of the elopement through its quality
assurance program and concluded that the switch for the alarm on the emergency
exit door, which was not at the time protected by a cover, was most likely
inadvertently bumped into the off position by staff. Tr. 157.

After Resident 8’s elopement and fall, Petitioner took corrective action including
implementing a personal alarm on the resident, attaching a personal alarm to the
emergency door, reapplying the WanderGuard® device to the resident, and in-
service training was given to all staff by November 25, 2003. Tr. 170-72.

Petitioner corrected the deficiency before the survey and Petitioner was in
compliance with 42 C.F.R. § 483.25(h)(2) at the time of the survey. Tr. 98.
B. Conclusions of Law
1, Petitioner’s request for hearing was timely and I have jurisdiction.
2. Petitioner violated 42 C.F.R. § 483.25(h)(2).

3. A facility may appeal a certification of noncompliance that results in imposition of
an enforcement remedy, but the facility may not challenge the choice of remedy or
the factors CMS or the state considered when selecting the remedy. 42 C.F.R. §
488.408(g).

4. Once an ALJ finds that there is a basis for imposing a civil money penalty (CMP),
the ALJ may not reduce the penalty amount to zero; review the exercise of
discretion by CMS to impose a CMP; or review factors other than those specified
by the regulation. 42 C.F.R. § 488.438(e).

5. A PICMP of $2000 is reasonable in this case.
C. Issues
The general issues are:

1. Whether there is a basis for the imposition of an enforcement remedy;
and,

2. Whether the remedy imposed is reasonable.
D. Applicable Law

Petitioner is a long-term care facility participating in the federal Medicare program as a
skilled nursing facility (SNF) and in the state Medicaid program as a nursing facility
(NF). The statutory and regulatory requirements for participation by a long-term care
facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483.
Sections 1819 and 1919 of the Act vest the Secretary with authority to impose CMPs
against a long-term care facility for failure to comply substantially with federal
participation requirements.

Facilities that participate in Medicare may be surveyed on behalf of CMS by state survey
agencies in order to determine whether the facilities are complying with federal
participation requirements. 42 C.F.R. §§ 488.10-488.28, 488.300-488.335. Pursuant to
42 C.F.R. Part 488, CMS may impose a per instance or per day CMP against a long-term
6

care facility when a state survey agency concludes that the facility is not complying
substantially with federal participation requirements. 42 C.F.R. §§ 488.406; 488.408;
488.430. The regulations in 42 C.F.R. Part 488 also give CMS a number of other
remedies that can be imposed if a facility is not in compliance with Medicare
requirements. Jd.

The regulations specify that a CMP that is imposed against a facility on a per day basis
will fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The
upper range of CMP, of from $3050 per day to $10,000 per day, is reserved for
deficiencies that constitute immediate jeopardy to a facility’s residents, and in some
circumstances, for repeated deficiencies. 42 C.F.R. §§ 488.438(a)(1)(i), (d)(2). The
lower range of CMP, from $50 per day to $3000 per day, is reserved for deficiencies that
do not constitute immediate jeopardy, but either cause actual harm to residents, or cause
no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R.

§ 488.438(a)(1)(ii). There is only a single range of $1000 to $10,000 for a PICMP that
applies whether or not immediate jeopardy is present. 42 C.F.R. §§ 488.408(d)(1)(iv);
488.438(a)(2).

The Act and regulations make a hearing before an ALJ available to a long-term care
facility against which CMS has determined to impose a CMP. Act, section 1128A(c)(2);
42 C.F.R. §§ 488.408(g); 498.3(b)(13). The hearing before an ALJ is a de novo
proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F2d. 678
(8" Cir. 1991). A facility has a right to appeal a “certification of noncompliance leading
to an enforcement remedy.” 42 C.F.R. § 488.408(g)(1); see also 42 C.F.R. §§ 488.330(e)
and 498.3. However, the choice of remedies by CMS or the factors CMS considered
when choosing remedies are not subject to review. 42 C.F.R. § 488.408(g)(2). A facility
may only challenge the scope and severity level of noncompliance found by CMS if a
successful challenge would affect the amount of the CMP that could be collected by CMS
or impact upon the facility’s nurse aide training program. 42 C.F.R. §§ 498.3(b)(14) and
(d)(10)(i). CMS’s determination as to the level of noncompliance “must be upheld unless
it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2). This includes CMS’s finding of
immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000), aff'd,
Woodstock Care Center v. U.S. Dept. of Health and Human Services, 363 F.3d 583 (6"
Cir.2003). The Departmental Appeals Board (the Board) has long held that the net effect
of the regulations is that a provider has no right to challenge the scope and severity level
assigned to a noncompliance finding, except in the situation where that finding was the
basis for an immediate jeopardy determination. See, e.g., Ridge Terrace, DAB No. 1834
(2002); Koester Pavilion, DAB No. 1750 (2000). Review of a CMP by an AL] is
governed by 42 C.F.R. § 488.438(e).
E. Analysis

1. Petitioner violated 42 C.F.R. § 483.25(h)(2) (Tag F 324) and there is
a basis for imposing a CMP.

A facility must ensure that “[e]ach resident receives adequate supervision and assistance
devices to prevent accidents.” 42 C.F.R. § 483.25(h)(2). The Board has explained the
requirements of 42 C.F.R. § 483.25(h)(2) in numerous decisions. Golden Age Skilled
Nursing & Rehabilitation Center, DAB No. 2026 (2006); Estes Nursing Facility Civic
Center, DAB No. 2000 (2005); Northeastern Ohio Alzheimer's Research Center, DAB
No. 1935 (2004); Woodstock Care Center, DAB No. 1726, at 28 (2000), aff'd, Woodstock
Care Center v. Thompson, 363 F.3d 583 (6th Cir. 2003). Section 483.25(h)(2) does not
make a facility strictly liable for accidents that occur, but it does require the facility to
take all reasonable steps to ensure that a resident receives supervision and assistance
devices that meet his or her assessed needs and mitigate foreseeable risks of harm from
accidents. Woodstock Care Center v. Thompson, 363 F.3d at 590 (a SNF must take “all
reasonable precautions against residents’ accidents”). A facility is permitted the
flexibility to choose the methods of supervision it uses to prevent accidents, but the
chosen methods must be adequate under the circumstances. Jd. Whether supervision is
“adequate” depends, of course, on the resident’s ability to protect himself or herself from
harm. Jd. Thus, the issue is whether the quality of the supervision or the use, or lack
thereof, of assistive devices at the long-term care facility was such that residents with
known or foreseeable risks were subject to the risk of injury from accidental causes in
their daily activities. Based on the regulation and the cases in this area, CMS meets its
burden to show a prima facie case if the evidence demonstrates that the facility failed to
provide adequate supervision and assistance devices to prevent accidents, given what was
reasonably foreseeable. Alden Town Manor Rehabilitation & HCC, DAB No. 2054
(2006), at 5-6, 7-12. An "accident" is "an unexpected, unintended event that can cause a
resident bodily injury," excluding "adverse outcomes associated as a direct consequence
of treatment or care (e.g., drug side effects or reactions)." SOM, App. P, page PP-105,
Guidance to Surveyors for Long Term Care Facilities, Part 2, F324, Quality of Care (Rev.
274, June 1995), Woodstock Care Center, DAB No. 1726, at 4 (2000).

The pertinent facts here are not disputed. Resident 8 was identified as an elopement risk
(P. Reply at 2) and as a fall risk (CMS Ex. 7, at 45). Between 9:30 pm and 10:00 pm on
November 11, 2003, Resident 8 was found outside the facility, unsupervised, partially
clothed, incontinent of bowel, sitting on the ground after apparently falling. Finding of
Fact 18. I have no difficulty concluding there is a prima facie showing of a violation of
42 C.F.R. § 483.25(h)(2), i.e, CMS produced sufficient evidence that, absent conflicting
evidence, shows a violation occurred. Meadow Wood Nursing Home, DAB No. 1841, at
7 (2002); Emerald Oaks, DAB No. 1800, at 16 (2001).
8

Petitioner argues that it identified Resident 8 as an elopement risk, that its interventions
were adequate, and that it was not foreseeable that the alarm on the emergency door
would be turned off permitting Resident 8 to elope. P. Brief at 9-13; P. Reply at 2-4. I
am not persuaded.

Resident 8's care plan and other medical records shows that Petitioner knew that Resident
8 was an elopement risk, and should not be outside the facility unsupervised. Among
other things, the care plan dated September 25, 2003, and in place at the time of the
incident on November 11, 2003, stated, “Alteration in behavior. Has left facility
unsupervised, at times angers and does not always accept RO [reality orientation] related
to Dementia and inability to realize limits .... Potential for injury related to history of
falls, unsteady gait with attempts to leave facility related to poor cognitive status.” CMS
Ex. 7, at 43, 45. The care plan directed staff to “provide accompaniment if he wishes to
go outside of facility.” CMS Ex. 7, at 45. His plan of care also required that the staff
monitor that the WanderGuard® is on the resident and functioning correctly. CMS Ex. 7,
at 43,45. The Nurse’s notes indicate that on October 2, 2003, Resident 8 was found to
have taken off the WanderGuard® and any attempt at placing a new one on his wrist
resulted in extreme anger and refusal by the resident. CMS Ex. 7, at 15. Several other
attempts were made in the beginning of October 2003 to get a WanderGuard® on
Resident 8, but to no avail. CMS Ex. 7, at 15. On October 4, 2003, notes indicate that
Resident 8 said that he was not in prison and that he did not like women chasing him
when he went out the door. CMS Ex. 7, at 15. The Nurse’s notes indicated on his first
refusal that, since he was not wearing a WanderGuard®, he should be monitored closely.
CMS Ex. 7, at 15. However, the care plan itself does not appear to be modified; it still
requires that the WanderGuard® be on and monitored for functioning. There is no
suggestion in the care plan that this intervention was removed or modified prior to the
date of the incident on November 11, 2003, nor does the care plan indicate that any new
interventions were put in place in early October 2003 to address Resident 8's refusal to
wear the WanderGuard® and to protect the resident from elopement. CMS Ex. 7 at 43.

Nurse’s notes show that on November 5, 2003, Resident 8 was transferred to the hospital
by his daughter, with chills and pain associated with a urinary catheter. He was returned
to Petitioner’s facility on November 10, 2003, with a prescription for Cipro, an antibiotic.
CMS Ex. 7, at 14. A note from November 10, 2003 at 4:25 pm, reflects that he was found
lying on the floor beside his bed, shoes off, pants half-down, and unable to explain what
had happened. A note on November 11, 2003 at 1:00 pm, shows that he was up in the
hall without assistance, that he was encouraged to request assistance, that he was assisted
to breakfast and lunch in a wheelchair by two staff, and that he seemed confused and
9

lethargic throughout the day. CMS Ex. 7, at 13. A note from 9:00 pm on November 11,
2003, indicates that he was again up in the hallway without assistance, that he was
assisted to supper and back, that he continued to be lethargic, and ate only bites of his
meal. CMS Ex. 7, at 12

The evidence shows that Resident 8 resisted wearing the WanderGuard® and even
verbalized that he did not want staff following him out the door. He was sick, possibly
with a urinary tract infection given the presence of the catheter on November 5 and the
prescription for antibiotic on his return from the hospital on November 10. On November
10, he was found on the floor by his bed without explanation. On November 11, he was
attempting to move around in the hallways without assistance. He was also noted to be
confused and lethargic on November 11, 2003. All these facts were sufficient to cause
Petitioner to know that Resident 8, with his history of prior exit seeking behavior,
required some increased supervision. Despite the fact that Resident 8's care plan called
for him to wear a WanderGuard® bracelet at all times, he was not wearing that bracelet at
the time that he was found outside and he had refused to wear it for several days prior to
that. Petitioner’s argument that the absence of the WanderGuard® bracelet is irrelevant
because Resident 8 left the facility through a door not protected by the WanderGuard®
system misses the point. Resident 8 refused to wear the bracelet and he verbalized the
intent not to have staff follow him out the door. Nevertheless, Petitioner failed to
implement another intervention to give warning in the event Resident 8 left his room
without assistance or attempted to leave the building unobserved.

Petitioner chose to use an alarm system on emergency exits, including the door through
which Resident 8 eloped. The emergency exit alarms were controlled by switches just
above the work surface at the nurses’ station. P. Ex. 6. But as Petitioner demonstrated by
its own photographs (P. Ex. 6), Petitioner did not protect against those simple toggle
switches from being accidentally turned-off by a notebook or chart. Although Petitioner
did daily and weekly checks to ensure the alarms on emergency exit doors worked,
Petitioner has provided no evidence that it had any protocol to ensure the switches were
not accidentally flipped to the off position or to ensure that the alarms were functional
throughout the day. Because Petitioner chose to protect against elopement by putting
such an alarm system in place, Petitioner had the duty to know whether or not the
emergency exit door alarm was on and operational at all times, i.e., Petitioner was obliged
to know whether this intervention was effective. It was only fortuitous that Resident 8,
who was known to be an elopement risk and at risk for falls, did not suffer significant
harm given his apparent fall, the weather, his state of dress, and other risks related to his
condition as reflected in his clinical records, and the fact that he was unsupervised.
10

I conclude that Petitioner has not shown it did all it reasonably could to protect the
resident from foreseeable risks of harm associated with elopement and falls.
Accordingly, Petitioner violated 42 C.F.R. § 483.25(h)(2) and there is a basis for
imposing a CMP.

Petitioner argues in the alternative that as a matter of its own policy CMS should not
impose a CMP based upon the deficiency. P. Brief at 13-20; P. Reply at 4-5. Petitioner
cites the State Operations Manual, paragraph 7510A (Rev. 13, December 1999) (P. Ex. 8,
at 2). The provision indicates that CMS or the state should consider imposing a CMP for
serious noncompliance that has been corrected at the time of the survey. However, the
provision also provides that if the facility was out of compliance between two surveys
that found it in compliance and the noncompliance was corrected through the facility’s
quality assurance program, then the past noncompliance should not be cited by the
surveyors, except where the past noncompliance was egregious, such as in the case of a
death.

CMS responds that the deficiency was cited at the level of “immediate jeopardy,” defined
under the regulation as “a situation in which the provider’s noncompliance with one or
more requirements of participation caused, or is likely to cause, serious injury, harm,
impairment, or death to a resident” and that is tantamount to egregious. CMS Reply at 1-
2, citing 42 C.F.R. § 488.301 (emphasis added).

Section 7510 of the SOM gives guidance to CMS and the states regarding imposition of a
CMP. The regulations are clear that I have no authority to review the exercise of
discretion by CMS to impose a CMP, if there is a basis for imposing an enforcement
remedy. 42 C.F.R. § 488.438(e). The regulations are also clear that Petitioner may not
challenge the choice of remedies by CMS. 42 C.F.R. § 488.408(g). Furthermore, CMS’
construction of its policies and how they are to be applied, is a matter within its
discretion. My review is limited to determining whether there is a basis for the
imposition of a remedy and whether the remedy is reasonable.

2. A per instance CMP of $2000.00 is reasonable on the facts of this
case.

If a facility is not in substantial compliance with program requirements, CMS has the
authority to impose one or more of the enforcement remedies listed in 42 C.F.R. §
488.406, including a CMP. CMS may impose a CMP for the number of days that the
facility is not in compliance or for each instance that a facility is not in substantial
compliance. 42 C.F.R. § 488.430(a). The minimum amount for a PICMP is $1000 and
the maximum is $10,000. CMS imposed a per instance penalty here of $2000 — the low
end of the range. I must consider whether the proposed PICMP is reasonable.
11

In determining whether the amount of the per instance CMP is reasonable, the following
factors specified at 42 C.F.R. § 488.438(f) must be considered: (1) the facility’s history
of non-compliance, including repeated deficiencies; (2) the facility’s financial condition;
(3) the seriousness of the deficiencies as set forth at 42 C.F.R. § 488.404; and (4) the
facility’s degree of culpability.

Petitioner has not argued that the proposed PICMP is unreasonable but focused upon
whether or not there is a basis for imposing such a remedy. The PICMP amount is at the
low-end of the range. Petitioner has not argued or submitted any evidence that it is
unable to pay the PICMP. CMS has offered no evidence of past noncompliance for me to
consider. The deficiency is serious and supports the PICMP proposed. It was merely
fortuitous that the resident was not more seriously injured when he eloped unnoticed from
the facility. Petitioner was culpable as it did not respond to indications that the Resident
required additional interventions and the obvious risk that its alarm system could be easily
compromised. I note however that Petitioner did act quickly through its quality assurance
process to correct the deficiency and its causes. Therefore, I conclude that given all the
factors, a per instance CMP of $2000 is reasonable.

WI. Conclusion

For the foregoing reasons, I conclude that Petitioner violated 42 C.F.R. § 483.25(h)(2)
and that a per instance CMP of $2000.00 is reasonable.

/s/

Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Revathi Bingi, Ed.D., ) Date: March 8, 2007

)
Petitioner, )
)

-Vv.- ) Docket No. C-06-558

) Decision No, CR1573
Centers for Medicare & Medicaid )
Services. )
)

DECISION

1 affirm the determination of the Medicare Part B Hearing Officer (Hearing Officer) to
uphold the revocation by the Medicare Part B carrier, AdminaStar Federal (Carrier), of
Petitioner’s Medicare provider identification number (PIN) from February 15, 2000
through March 12, 2006 (the relevant period). I find the Hearing Officer correctly
determined that during the relevant period Petitioner did not meet all state requirements to
be considered a clinical psychologist, in that she had not been endorsed by the Indiana
State Psychology Board (Psychology Board) as a Health Service Provider in Psychology
(HSPP).

I. APPLICABLE AUTHORITY

Section 1866(j) of the Social Security Act (Act), as amended by section 936 of the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No.
108-173, authorized the Secretary of Health and Human Services to establish a process
for the enrollment in the Medicare Program of providers of services and suppliers.
Section 1866(j)(2) of the Act gives providers and suppliers appeal rights for certain
determinations involving enrollment, using the procedures that apply under section
2

1866(h)(1)(A) of the Act. These procedures are set out at 42 C.F.R. Part 498, et. seq., and
provide for hearings by Administrative Law Judges (ALJs) and review of ALJ decisions
by the Departmental Appeals Board (Board).

In provider appeals under 42 C.F.R. § 498, the Board has determined that CMS must
make a prima facie case that an entity has failed to comply substantially with federal
requirements. See MediSource Corporation, DAB No. 2011 (2006). “Prima facie”
means that the evidence is “[s]ufficient to establish a fact or raise a presumption unless
disproved or rebutted.” Rosalyn L. Olian, DAB CR1472, at 2 (2006), quoting Black’s
Law Dictionary 1228 (8th ed. 2004); see also Hillman Rehabilitation Ctr. v. U.S. Dept. of
Health and Human Services, No. 98-3789 (GEB) (D.N.J. May 13, 1999). To prevail, the
entity must overcome CMS’s 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. 187 (6" Cir. 2005); Emerald Oaks,
DAB No. 1800 (2001); Cross Creek Health Care Center, DAB No. 1665 (1998);
Hillman, DAB No. 1611 (1997).

Section 1861 of the Act defines the medical and other health services that are eligible for
Medicare reimbursement by a non-physician practitioner or an allied health professional.
Under section 1842(b)(18)(C) of the Act, the types of “practitioners” include the
following: a physician assistant, nurse practitioner, clinical nurse specialist, certified
nurse-midwife, clinical social worker, and clinical psychologist. The Act further defines
“qualified psychologist services” as

[S]uch services and such services and supplies furnished . . . by a clinical
psychologist (as defined by the Secretary) which the psychologist is legally
authorized to perform under State law (or the State regulatory mechanism provided
by State law) as would otherwise be covered if furnished by a physician or as an
incident to a physician’s service.

Act, section 1861 (ii).

CMS regulations define the credentialing requirements and criteria for providers and
provider eligible services at 42 C.F.R. §§ 410.69-410.78. The regulation at 42 C.F.R.

§ 410.71(d) sets forth the qualifications required to be enrolled in the Medicare program

as a clinical psychologist. A clinical psychologist is defined as an individual who —

(1) Holds a doctoral degree in psychology; and
3

(2) Is licensed or certified, on the basis of the doctoral degree in psychology, by
the State in which he or she practices, at the independent practice level of
psychology to furnish diagnostic, assessment, preventive, and therapeutic services
directly to individuals.

42 C.F.R. § 410.71(d).
I]. SUMMARY JUDGMENT

CMS submitted a motion for summary judgment and brief (CMS Br.) accompanied by
joint exhibits (J. Exs.) 1-12 and CMS exhibits (CMS Exs.) 1-7. Petitioner submitted a
motion for summary judgment and brief and a response to CMS’s motion (P. Br.) and
Petitioner’s exhibits (P. Exs.) 1-9. CMS submitted a brief in response to Petitioner’s
motion and a reply to Petitioner’s response (CMS reply), and Petitioner submitted a reply
(P. Reply). I admit J. Exs. 1-12, CMS Exs. 1-7, and P. Exs. 1-9.!

' Both parties submitted motions to strike and objections and responses. Petitioner
submitted a motion to strike paragraph 3 of the Declaration of Shelly L. Mazo, Board
Director of the Psychology Board, asserting that she did not have personal knowledge of
the alleged purpose behind the establishment of the HSPP requirement in 1985.
Petitioner also submitted a motion to strike paragraph 7 of the Declaration of Christy J.
Van Dyke, Manager, Indiana Part B Provider Enrollment at AdminaStar Federal, Inc.,
asserting that the Manager’s declaration regarding the requirements necessary to obtain a
Medicare PIN as a clinical psychologist for billing purposes was not a “fact” based on
“personal knowledge” but a legal conclusion. CMS submitted motions to strike
Petitioner’s exhibits 4, 5, and 6. CMS asserted P. Ex. 4, an internet printout of the
Indiana Professional Licensing Agency, printed on November 29, 2006, listing Barbara
MeNutt as Chief Counsel, is irrelevant. CMS asserted that P. Ex. 5, a Medicare
Remittance Notice dated October 12, 2006, and sent to Von Bargen Sims and Associates,
is also legally irrelevant as this case does not involve recoupment by Medicare of funds
provided to Von Bargen. CMS also asserted that P. Ex. 6, a copy of an e-mail to
Petitioner, is not authenticated and cannot be accepted into evidence for the truth of the
matters asserted in it. I am denying all of these motions to strike. They reflect disputes
over facts not material to the legal issue under 42 C.F.R. § 410.71(d). They would be
material only if | could entertain claims of equitable estoppel or if some “knowledge,”
“reliance, ” “willfullness,” or “intent” showing was necessary to grant or deny the PIN.
4

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 summary judgment motions.
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. Residence at Kensington Place, DAB No.
1963 (2005); White Lake Family Medicine, P.C., DAB No. 1951 (2004). Here, both
parties have moved for summary judgment. In fact, as set forth below, the parties do not
disagree concerning the material facts of the case. Their disagreement lies in the
application of the law to the facts. A dispute between the parties over the correct
conclusion to be drawn from undisputed facts is not an impediment to the entry of
summary judgment, and in truth may be understood as the precise procedural context in
which summary disposition is most appropriate. Moreover, although I find for CMS, I
am adopting the relevant and material findings as urged and set forth by Petitioner in her
brief.

TH. UNDISPUTED MATERIAL FACTS
I adopt relevant and material undisputed facts set forth in Petitioner’s brief at P. Br. 2-6.

1. On or about June 30, 1998, Petitioner first submitted an application for a Medicare
PIN as a clinical psychologist (as that term is used at 42 C.F.R. § 410.7(d)), to allow the
organization for which she then worked, Hobson Psychiatric Services (Hobson), to bill
Medicare for payment for clinical psychologist services rendered to Medicare
beneficiaries.

2. In an addendum to her application dated September 28, 1998, Petitioner indicated that
she was not endorsed as a HSPP in Indiana. J. Ex. 1, at 12; P. Ex. 1, at 3-4.

3. In the addendum, Petitioner expressly and legibly wrote by hand: “I am not endorsed
as Health Service Provider (HSPP) in Psychology in Indiana.” In the final paragraph she
noted “with the above additional information I am not sure if I qualify. However, I am
signing because if I do it will be helpful.” J. Ex. 1, at 12.

4. The Carrier reviewed the application and issued Petitioner Medicare PIN number
926320A by letter dated November 3, 1998.

5. Petitioner left Hobson to provide services at Von Bargen Sims & Associates (Von
Bargen). Petitioner submitted a Medicare application for a new Medicare PIN in order
for Von Bargen to bill for services rendered by Petitioner as a clinical psychologist to
Medicare beneficiaries at Von Bargen.
5

6. Petitioner’s second application did not indicate or assert that she was endorsed as a
HSPP in Indiana.

7. Petitioner was issued Medicare PIN number 667150F on February 15, 2000.

8. Petitioner relied on the issuance of the PINs and provided services to Medicare
beneficiaries.

9. On August 24, 2005, Medicare revoked Petitioner’s second PIN, stating that Petitioner
did not meet the requirements for a clinical psychologist because she was not endorsed as
a HSPP.

0. On March 13, 2006, Petitioner was endorsed as a HSPP by the Psychology Board.
1. Petitioner timely appealed the revocation. After a hearing, the Hearing Officer issued
a decision partially favorable to Petitioner, finding that her second PIN should be

reinstated, but only as of March 13, 2006, the date she received endorsement as a HSPP.

2. Petitioner timely appealed the unfavorable portion of the Hearing Officer’s decision,
and the case was assigned to me for a hearing and a decision.

3. During the relevant period, Petitioner held an Ed.D., a doctoral degree in educational
psychology (counseling), which she received on December 17, 1994.

4. During the relevant period, Petitioner was a fully licensed psychologist in the State of
ndiana.

5. During the relevant period, Petitioner was also a fully licensed mental health
counselor in the State of Indiana.

6. At no time during the relevant period were Petitioner’s Indiana licenses (as either a
psychologist or a mental health counselor) ever revoked, suspended, or otherwise
removed or limited.

IV. ISSUE

The issue before me in this case is whether Petitioner satisfied the requirements necessary
to obtain a Medicare PIN as a clinical psychologist, as set out at 42 C.F.R. § 410.71(d),
during the relevant period. It is not contested that Petitioner met those requirements as of
March 13, 2006.
6

V. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DISCUSSION

1, Petitioner did not satisfy the requirements necessary to obtain a Medicare
PIN as a clinical psychologist, as set out at 42 CF.R. § 410.71(d), during the
relevant period.

To be deemed qualified to receive a Medicare PIN as a clinical psychologist during the
relevant period, Petitioner must show that she met all statutory and regulatory
requirements during that period. The regulations, at 42 C.F.R. § 410.71(d), state that a
“clinical psychologist” is an individual who: (1) holds a doctoral degree in psychology;
and (2) is licensed or certified, on the basis of the doctoral degree, by the state in which
he or she practices, at the independent practice level of psychology, to furnish diagnostic,
assessment, preventive, and therapeutic services directly to individuals. CMS accepts that
Petitioner met the first requirement during the relevant period and held an acceptable
doctoral degree in psychology. CMS Br. at 14. However, CMS asserts that Petitioner did
not possess the required state certification for furnishing diagnostic, assessment,
preventive and therapeutic services until March 13, 2006, when the Psychology Board
issued her a HSPP endorsement. /d.

Petitioner argues that she did meet the requirements, either as a licensed psychologist in
Indiana or as a combination of her Indiana licenses as a psychologist and a mental health
counselor. Petitioner refers to Federal Register guidance behind the regulations (63 Fed.
Reg. 20110 (April 23, 1998)), which she interprets to mandate that I take a broad reading
of the regulatory requirements. In her interpretation of how I should take such an
expansive view, Petitioner asserts that, although she might not have received her HSPP
endorsement until March 13, 2006, she otherwise met the Medicare requirements
necessary to obtain a PIN as a clinical psychologist (as set forth at 42 C.F.R. § 410.71(d))
as of February 15, 2000, because her experience and her Indiana licenses as a
psychologist and as a mental health counselor are the functional equivalent of the HSPP
endorsement.

This argument based on the functional equivalence of Petitioner’s qualifications to the
HSPP endorsement, and thus to the Medicare requirements, is the armature upon which
her position here is erected. Petitioner asserts that 42 C.F.R. § 410.71(d)(1) and (2)
actually encompass three requirements. The first of the three requirements — as
Petitioner views the matter — is the educational requirement that she have earned a
doctoral degree in psychology, and her satisfaction of that requirement is uncontested
here. But it is her analysis of the following requirements that falls short of success in this
case. Specifically, Petitioner divides subsection 410.71(d)(2), arguing that it should be
broken down as follows: first, that she be licensed or certified, on the basis of the
7

doctoral degree in psychology, by the State of Indiana — which she was — and, second
and separately, that she practice at the independent practice level of psychology to furnish
diagnostic, assessment, preventive, and therapeutic services directly to individuals —
which she asserts she did on the basis of both her licenses. P. Br. at 10-25.

In support of her argument, Petitioner asserts that during the relevant period she was
authorized to: independently provide mental health services to individuals directly, up to
her education, training, and experience (under her mental health license), excluding
rendering a diagnosis as a physician is authorized to do; and independently render mental
health services within the scope of her psychology license. Thus, she declares that she
was professionally competent and legally authorized to independently furnish diagnostic,
assessment, preventive, and therapeutic services directly to individuals during the relevant
period. She argues that a HSPP endorsement should only be seen as one way — but not
the only way — for an individual to meet the requirement that he or she practice at the
independent practice level of psychology to furnish diagnostic, assessment, preventive
and therapeutic services directly to individuals. See P. Br. at 21.

I accept for purposes of this summary judgment motion that, throughout the relevant
period, Petitioner may very well have had the education, training, and experience that
would have supported her application for HSPP endorsement and permitted her to be
endorsed as a HSPP. The fact is, however, that she did not apply for a HSPP
endorsement and was not so endorsed. And, without that endorsement, Petitioner did not
meet the regulatory requirement to receive a PIN as a clinical psychologist.

The Act requires that a clinical psychologist only furnish services which he or she is
legally authorized to perform under state law or under the regulatory mechanism provided
by state law. Act, section 1861 (ii); see also 42 C.F.R. §§ 410.10(v), 410.71 (a). Fora
clinical psychologist in Indiana, that regulatory mechanism is the Psychology Board.
CMS Ex. 1; J. Ex. 9, at 18-23. The Psychology Board is the only agency in Indiana
responsible for licensing and certifying the professional activities of psychologists in
Indiana. It is separate from the Indiana Social Worker, Marriage and Family Therapist,
and Mental Health Counselor Board. The operations and requirements of any other board
have no effect on the operations and requirements of the Psychology Board and any
individual licensed in Indiana is subject to the Psychology Board’s rules and regulations.
Declaration of Shelly L. Mazo, Psychology Board Director, CMS Ex. 7, at 1, 2. The
Indiana statute establishing the Psychology Board is codified at IC 25-33-1-3. IC 25-33-
1-5.1, governs the issuance of licenses and endorsements as a HSPP. CMS Ex. 1, at 7-8;
J. Ex. 9, at 23-24. Indiana does not specifically license clinical psychologists. Instead,
Indiana issues a general psychologist license. If the psychologist provides services
Medicare has defined as those of a clinical psychologist (as cited above in section I of this
8

decision), Indiana, through the Psychology Board, requires the psychologist to obtain a
separate HSPP endorsement. /d. A HSPP endorsement means that a psychologist has had
extra training that enables that psychologist to diagnose and treat mental and behavioral
disorders. If a psychologist chooses not to diagnose, but wants to treat mental and
behavioral disorders, then he or she would still need to obtain a HSPP endorsement from
the Psychology Board. CMS Ex. 7, at 2, J 5. Specifically, the Indiana Administrative
Code notes at IAC 1.1-13-1.1 at subsection (c) that “[e]ndorsement as a health service
provider in psychology is required, by definition of the practice of psychology . . . for all
licensed psychologists who engage in the diagnosis and treatment of mental and
behavioral disorders . except for psychologists working under supervision or who hold a
limited license.” Further, under subsection (e), a HSPP “is a title conferred by
endorsement upon Indiana psychologists who have training and experience sufficient to
establish competence in an applied health service area of psychology (such as clinical,
counseling, or school psychology) and who meet the experience requirements of IC 25-
33-1-5.1(c). Subsection (g) defines treatment to refer “to the provision of psychotherapy,
counseling, consultation . . . or any other form of planned intervention to an individual or
individuals for the purpose of alleviating diagnosed mental and/or behavioral disorders.”
J. Ex. 9, at 42. To receive the Psychology Board’s endorsement, an individual must apply
in a form and manner in which the Psychology Board prescribes, and provide verification
of experience in an organized health service training program ("1500 hours of supervision
in an internship, and 1,600 hours, 900 of which must consist of direct patient contact, of
supervision in a postdoctoral health service setting.”) CMS Ex. 7, at 2,96. The
Psychology Board then reviews the applicant’s qualifications to determine whether all
endorsement requirements have been satisfied. J. Ex. 9, at 24, 44; CMS Ex. 1, at 5-8;
CMS Ex. 7, at 2, 47.

While Petitioner has made a game attempt to find a way (via her personal interpretation of
federal and state law) to show that her background is functionally equivalent to a HSPP
endorsement, neither federal or state law (as set forth above) recognizes such functional
equivalency. Petitioner needed a HSPP endorsement to bill as a clinical psychologist, did
not have one, and thus was ineligible to receive a Medicare PIN as a clinical psychologist
until she received the HSPP endorsement.

2. Ihave no authority to consider Petitioner’s claim that CMS is estopped as a
matter of equity from revoking her Medicare PIN during the relevant period.

Petitioner agues that, assuming I find she did not meet the requirements to receive a PIN
as a clinical psychologist during the relevant period, CMS is nevertheless estopped from
revoking her PIN. Petitioner argues that when she applied for her first PIN she wrote on
the addendum to her application that she was not endorsed as a HSPP and that she was
9

not sure she qualified for the PIN. Carrier employees reviewed her application and issued
her first PIN and then another PIN when she went to work for a different employer (the
PIN in question here). Petitioner asserts that such issuance was an “express written
representation by CMS that Petitioner was qualified to have such PIN.” P. Br. at 24.
Further, Petitioner asserts that the two different Carrier employees’ negligent failure to
take her express statement into account constitutes “affirmative misconduct” by those
employees. Petitioner states that she reasonably relied upon the CMS representations that
she qualified as a clinical psychologist by the receipt of her PINs and that she then
provided care for, billed for, and received reimbursement for services she provided to
Medicare beneficiaries for several years. Asa result, and to her detriment, she is bearing
the cost of her appeal and, if unsuccessful, will have to repay Medicare for services billed
under her second PIN during the relevant period (based on claims for recoupment she
asserts that Medicare has issued relating to services she rendered during the relevant
period). P. Br. at 24-25.

Petitioner refers to the general elements of an estoppel argument: first, the estopped party
must have made a definite misrepresentation of fact to a second party having reason to
believe that the second party will rely upon it; next, the party asserting estoppel must have
reasonably relied upon that misrepresentation of fact; third, the party asserting estoppel
must have changed its position in reliance upon the misrepresentation; and fourth, the
party asserting estoppel must have suffered a detriment as a result.

Ihave no authority to consider appeals based on equitable estoppel, as the regulations at
42 C.F.R. Part 498 limit my authority to hearing and deciding only initial determinations.
42 C.F.R. §§ 498.3, 498.5. See Kirtis Thomas, DAB CR1452, at 8 (2006); Danville
HealthCare Surgery Center, DAB CR892, at 7 (2002). I note, however, that the greatest
difficulty for Petitioner is encountered at the very outset of her analysis: Petitioner
recognizes that if the doctrine of estoppel could be applied to an act of the federal
government at all, at the very least it required a showing of “affirmative misconduct” on
the part of federal officials, and that there must be shown a definite misrepresentation, not
silence, not error, nor a failure to act. Tennessee Deptartment of Health and
Environment, DAB No. 1082 (1989); P. Br. at 23-24. Erroneous information from
government employees does not rise to estoppel against the government or entitle the
recipient of the incorrect information to monetary payments not otherwise permitted by
law. Danville HealthCare Surgery Center, DAB CR892, at 7; see Tennessee
10

Department of Health and Environment, DAB No. 1082 (1989); Office of Personnel
Management (OPM) v. Richmond, 496 U.S. 414 (1990); Heckler v. Community Health
Services of Crawford County, 467 U.S. 51 (1984).

VI. CONCLUSION

Having determined that, as a matter of law, Petitioner is without a right to the relief she
secks, I affirm the determination of the Hearing Officer to uphold the revocation by the
Carrier of Petitioner’s Medicare PIN during the relevant period.

/s/
Richard J. Smith
Administrative Law Judge

> Although I do not have the authority to provide Petitioner the equitable relief she
seeks, I do note that Petitioner appears to have provided services to Medicare
beneficiaries in good faith and that, if possible, CMS should take that into consideration
in any recoupment efforts it may ultimately decide to undertake. I can find nothing in this
record to justify a punitive or confiscatory approach in any such efforts, just as I can find
nothing in this record to suggest that Petitioner deliberately concealed or misrepresented
her credentials to anyone at any time.