Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Simmie Armstrong, Jr., M.D.

(NPI: 1033102181),

Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-15-1622
Decision No. CR4254

Date: September 25, 2015

DECISION

The Centers for Medicare & Medicaid Services (CMS), through one of its contractors,
Novitas Solutions (Novitas), revoked the Medicare enrollment and billing privileges of
Simmie Armstrong, Jr., M.D. (Dr. Armstrong) pursuant to 42 C.F.R. § 424,535(a)(8)!
effective November 6, 2014. On reconsideration, CMS determined Dr. Armstrong did
not dispute that he submitted Medicare claims for payment for services he did not render
to specific individuals on the dates of service, and he did not dispute that individuals
identified in the claims were, in fact, deceased at the alleged time of service. Dr.
Armstrong then requested a hearing. CMS now moves for summary judgment, which
Dr. Armstrong opposes.

' CMS substantially amended 42 C.F.R. § 424.535(a)(8) effective February 3, 2015. See
79 Fed. Reg. 72,500 (Dec. 5, 2014). However, in this case I will apply the 2014 version
of 42 C.F.R. § 424.535(a)(8) because the text reflected in that regulation was in effect
throughout all of the events in this case (i.e., the dates of Petitioner’s claimed services
through CMS’s revocation of Petitioner’s billing privileges).
For the reasons set forth below, I find that there is no genuine dispute of material fact and
that CMS is entitled to judgment affirming the revocation of Petitioner’s Medicare billing
privileges. Accordingly, I grant summary judgment in favor of CMS.

I. Case Background and Procedural History

Dr. Armstrong is a physician in Arkansas. He participated in the Medicare program as a
supplier of services.” In a March 6, 2014 letter, a CMS administrative contractor,
AdvanceMed, informed Dr. Armstrong that he may have violated 42 C.F.R.

§ 424.535(a)(8) based on filing claims for services provided to deceased beneficiaries.
CMS Exhibit (Ex.) 13; CMS Ex. 149 8. Dr. Armstrong sent AdvanceMed a claim log
regarding the billing for the deceased beneficiaries, but did not provide an explanation.
CMS Ex. 13; CMS Ex. 149 8. By letter dated October 7, 2014, Novitas notified Dr.
Armstrong that it was revoking his Medicare enrollment and billing privileges pursuant to
42 CFR. § 424.535(a)(8) because “data analysis” showed 2,063 instances where Dr.
Armstrong submitted Medicare claims for home health services using Healthcare
Common Procedure Coding System (HCPCS) Code G0181 when the identified
beneficiary was not in a covered home health period.? Novitas also determined that

Dr. Armstrong billed Medicare 215 times for services provided to 62 beneficiaries who
were deceased at the time of service. Novitas’ initial determination stated that it was
revoking Dr. Armstrong’s billing privileges, effective November 6, 2014, which was 30
days after the date of the letter. Novitas also imposed against Dr. Armstrong a three-year
bar on reenrollment in the Medicare program. CMS Ex. 11.

On October 20, 2014, Dr. Armstrong submitted to Novitas a corrective action plan (CAP)
and request for reconsideration. In his submission, Dr. Armstrong listed Novitas’
conclusions from its initial determination along with his “subsequent reasons for
agreement/disagreement of findings.” CMS Ex. 9 at 1. Dr. Armstrong provided
information about his electronic medical records and billing system, and explained the
errors related to the home health services claims. Under the subheading “Many billing
errors were created from Billing on Deceased Individuals,” Dr. Armstrong wrote that
“Ta]fter review of such many errors were created from individuals with duplicate/similar
names.” CMS Ex. 9 at 4. On December 19, 2014, counsel retained by Dr. Armstrong
filed a supplemental reconsideration request and CAP. CMS Ex. 5. The supplemental
reconsideration request acknowledged that there were two separate allegations that led to
the revocation (i.e., billing for beneficiaries not in a covered home health period and
billing for services provided to deceased beneficiaries); however, the supplemental

> A “supplier” is “a physician or other practitioner, or an entity other than a provider, that
furnishes health care services under Medicare.” 42 C.F.R. § 400.202.

> HCPCS Code GO0181 is a billing code used for the physician supervision of a patient
receiving Medicare-covered services provided by a participating home health agency.
reconsideration request only disputed the impropriety of the claims for home health
services. See CMS Ex. 5 at 1, 3-4.

On February 24, 2015, CMS’s Center for Program Integrity issued a reconsidered
determination. CMS noted that a request for reconsideration must state the issues and
facts the supplier disagrees with, and the reasons for that disagreement. CMS Ex. | at 2.
CMS then found that “the submitted reconsideration does not appear to dispute CMS’
findings; on the contrary, it appears that [Dr. Armstrong] has accepted CMS’ findings.”
CMS Ex. | at 2. CMS continued:

Further, the fact of billing for deceased beneficiaries is not
much discussed in the reconsideration, when it is really the
billing for deceased beneficiaries that drives this
reconsideration determination. After all, the aberrant home
health billing, though unquestionably problematic, is not
objectively impossible, and therefore, standing alone, might
not have been considered “abuse of billing privileges” within
the narrow context of the regulation. In contrast, billing for
deceased beneficiaries fits perfectly within one of the
expressed instances described as “abuse of billing privileges”
by the regulation. As the key fits the lock, [Dr. Armstrong]
has fallen neatly and perfectly within the ambit of 42 C.F.R.
§ 424.535(a)(8); he has provided the textbook case for the
very billing practices that 42 C.F.R. § 424.535(a)(8) seeks to
account for.

CMS Ex. | at 2. CMS “commended” Dr. Armstrong on creating a compliance program
as part of his CAP, but took no further action regarding the CAP. Accordingly, CMS
upheld the revocation. CMS Ex. | at 2.

By letter dated March 12, 2015, Petitioner requested a hearing before an administrative
law judge (ALJ) to challenge the reconsidered determination. On March 23, 2015, 1
issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order), which
established general procedures for record development in this case and permitted the
parties to file for summary judgment, if appropriate. See Pre-hearing Order § 4. CMS
timely filed a motion for summary judgment with a supporting brief (CMS Br.) along
with 17 proposed exhibits (CMS Exs. 1-17). Petitioner filed an opposition to CMS’s
motion for summary judgment as well as a supporting brief (P. Br.) and 18 proposed
exhibits (P. Exs. 1-18).

In the absence of any objections, I admit CMS Exs. 1-17 and P. Exs. 1-18 into the record
for consideration.
II. Issues
This case presents two issues:
1. Whether CMS is entitled to summary judgment; and

2. Whether CMS was authorized to revoke Petitioner’s Medicare billing
privileges pursuant to 42 C.F.R. § 424.535(a)(8).

III. Jurisdiction

Ihave jurisdiction to decide the issue in this case. 42 C.F.R. §§ 498.3(b)(17), 498.5(1)(2);
see also 42 U.S.C. § 1395cc(j)(8).

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

The Social Security Act (Act) authorizes the Secretary of Health and Human Services
(Secretary) to establish by regulation procedures for enrolling providers and suppliers in
the Medicare program. 42 U.S.C. § 1395cc(j)(1)(A). The Secretary has promulgated
enrollment regulations in 42 C.F.R. Part 424, Subpart P. See 42 C.F.R. § 424.500 et seq.
The regulations provide CMS with the authority to revoke the billing privileges of an
enrolled provider or supplier if CMS determines that certain circumstances exist. Id.

§ 424.535(a). Relevant to this case, CMS may revoke a provider’s or supplier’s billing
privileges if:

The provider or supplier submits a claim or claims for
services that could not have been furnished to a specific
individual on the date of service. These instances include but
are not limited to situations where the beneficiary is deceased,
the directing physician or beneficiary is not in the State or
country when services were furnished, or when the equipment
necessary for testing is not present where the testing is said to
have occurred.

Id. § 424.535(a)(8). When CMS revokes a provider’s or supplier’s billing privileges, any
provider agreement in effect at the time of revocation is terminated. Id. § 424.535(b). In
addition, after revocation CMS must impose a bar on re-enrollment for a minimum of one
year, but no more than three years. Id. § 424.535(c).

A provider or supplier may request reconsideration of the initial determination to revoke
his or her billing privileges. 42 C.F.R. §§ 498.5(1)(1), 498.22(a). If dissatisfied with the
reconsidered determination, the supplier may request a hearing before an ALJ. Id.

§ 498.5(1)(2). When appropriate, ALJs may decide a case arising under 42 C.F .R. pt. 498
by summary judgment. See Civil Remedies Division Procedures § 19(a); Livingston
Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 172 (6th Cir. 2004)
(citing Crestview Parke Care Ctr. v. Thomson, 373 F.3d 743 (6th Cir. 2004)). Summary
judgment is appropriate and an in-person hearing is not required if the record shows that
there is no genuine dispute of any material fact and the moving party is entitled to
judgment as a matter of law. Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3
(2010) (citations omitted). To determine whether there are genuine issues of material fact
for an in-person hearing, the ALJ must view the evidence in the light most favorable to
the non-moving party, drawing all reasonable inferences in that party’s favor. Id.
(citation omitted).

1. Summary judgment is appropriate.

There is no genuine dispute of any material fact in this case. CMS presented evidence
showing that Petitioner submitted claims for services that could not have been provided
to a specific individual on the date of service. CMS Ex. 12 at 2-4; CMS Ex. 14 at J§ 7-8;
see also CMS Ex. 13. Petitioner compounded this by producing evidence that shows he
did not, in fact, provide the services to individual beneficiaries named in certain claims
that he submitted. See, e.g., P. Ex. | (providing medical treatment records of Dr.
Armstrong for an individual with the initials MBN and birthdate of August 9, 1957, but
submitting a Medicare claim for an individual with the initials MFB and birthdate of
October 29, 1920). Petitioner argues that he provided the service that he claimed, just not
to individual identified in the claim. However, the plain language of the regulation does
not carve out an exception to revocation for improperly identified beneficiaries. Instead,
it authorizes CMS to revoke billing privileges if a supplier submits claims for services
that could not have been rendered “to a specific individual on the date of service.” See
42 C.F.R. § 424.535(a)(8) (emphasis added). Any evidence or factual inferences that
may be drawn showing that Dr. Armstrong performed the services listed on the claims he
submitted to an individual not identified on the claim do not impact the result here.
Ultimately, Petitioner has not submitted evidence that detracts from CMS’s evidence or
raises any genuine dispute of material fact. Thus, this case turns on a matter of law.
Summary judgment is appropriate.

For purposes of summary judgment, I draw all inferences in favor of Dr. Armstrong.
Even though not material to the outcome, I accept as true, solely for purposes of
summary judgment, that Dr. Armstrong performed all of the services listed in the claims
he submitted to Medicare for payment. I also accept that Dr. Armstrong did not intend to
defraud Medicare and that the improper claims were the result of clerical errors.
2. Dr. Armstrong submitted Medicare payment claims for services that
could not have been and were not furnished to a specific individual on
the date of service listed in the claim.

CMS has presented the results of an investigation that show Dr. Armstrong submitted
Medicare claims for services that could not have been provided to the beneficiaries
identified in the claims because the beneficiaries were deceased on the dates of the
claimed services. CMS Ex. 12 at 2-4; CMS Ex. 14 at §§ 7-8; see also CMS Ex. 13. In
response, Dr. Armstrong does not directly dispute that he or his billing agent submitted
the claims in question. However, Dr. Armstrong argues that the billing errors were the
result of a feature of the billing system used by his office, and that the services described
in the claims at issue were in fact rendered to living Medicare beneficiaries with names
similar to those of the beneficiaries identified in the claims. P. Br. at 9-12.

The evidence before me shows that Dr. Armstrong submitted at least 77 claims for
services that were performed after the beneficiary identified on the claim had died. CMS
Ex. 12 at 2-4. The investigation report provides only five deceased beneficiaries as
examples of Dr. Armstrong’s improper billing, which is why the claim number in the
evidence before me is substantially less than what was originally identified in the initial
determination. See CMS Ex. 11. For all five of the beneficiaries identified in the
investigation report, Petitioner submitted claims for services rendered between one month
and up to a year after the specific beneficiary’s death. CMS Ex. 12 at 2-4.

Ultimately, Petitioner’s evidence does not create a genuine dispute about whether he or
his billing agent submitted the claims at issue to Medicare, or about whether those claims
identified deceased beneficiaries as receiving treatment. Regardless of whether Petitioner
provided the claimed services to living individuals — which I accept as true for purposes
of summary judgment — the claims he submitted to Medicare identified individuals who
did not actually receive the services listed. See, e.g., P. Ex. 1 at 10-11. Therefore,
Petitioner has not come forward with evidence to refute CMS’s evidence that shows he
submitted claims for services that could not have been provided to a specific individual
on the date of service.

Dr. Armstrong broadly disputes CMS’s evidence that the beneficiaries identified in the
Medicare claims were deceased at the time of service, although he offers no evidence
demonstrating the contrary to be true regarding the specific beneficiaries identified in the
investigation report. See P. Br. at 9n.2, 13. As a preliminary matter, however, Dr.
Armstrong’s general questioning of whether certain beneficiaries are in fact deceased
does little to advance his cause. The regulatory language offers a deceased beneficiary
merely as an example of when a service could not be provided to that specific individual.
See 42 C.F.R. § 424.535(a)(8). The operative language requires that Dr. Armstrong
could not have provided services to a specific individual at the time of service. Id.
Petitioner conceded that to be true and even introduced evidence showing that he did not
provide services to a specific individual identified in the claim he submitted to Medicare.
P. Br. at 9-12; P. Exs. 1-12. In essence, Petitioner has removed all doubt as to whether he
could have performed the services to a specific individual because his evidence confirms
that he did not do so. Moreover, CMS presented evidence of the deaths of certain
beneficiaries through a chart prepared during an investigation into Dr. Armstrong’s
billing practices. See CMS Ex. 12. The chart is part of an investigative record, and bears
sufficient indicia of reliability. It is certainly true that such evidence could be defeated by
Petitioner’s own evidence that the beneficiaries identified in the chart were not actually
deceased at the time of service. However, Dr. Armstrong has not presented any such
evidence. Indeed, Dr. Armstrong did not dispute during the reconsideration level of
review that the beneficiaries were deceased, and, even at this level of review, he simply
mentions this issue in a footnote, which is hardly sufficient to raise a genuine dispute of
fact.

The undisputed evidence presented here is sufficient to establish a prima facie case that
the beneficiaries identified in the claims at issue were deceased at the time of the service.
At the very least, Petitioner concedes (and even produces evidence) that he did not
provide services to the specific individual identified in the claims he submitted to
Medicare for payment. Petitioner has offered no evidence to raise a genuine dispute that
the beneficiaries identified in the investigation report were alive at the time of service and
that he provided treatment to them. A mere denial or unsupported disagreement with
certain evidence, which is all Petitioner offers in response to CMS’s evidence, is not
sufficient to prevent summary judgment. Senior Rehab., DAB No. 2300, at 3.

3. CMS was authorized to revoke Dr. Armstrong’s Medicare billing
privileges pursuant to 42 C.F.R. § 424.535(a)(8).

Once CMS determined that Dr. Armstrong submitted a claim or claims that could not
have been furnished to a specific individual on the dates of service, it was then authorized
to revoke Dr. Armstrong’s Medicare billing privileges. 42 C.F.R. § 424.535(a)(8). Here,
there are at least 77 instances where Dr. Armstrong submitted a claim for a service that
could not have been, and, in fact, were not furnished to a specific individual on the date
of service. CMS Ex. 12 at 2-4.

Dr. Armstrong’s argues that he provided the services claimed to living beneficiaries with
names similar to those beneficiaries identified in the claims at issue, but that fact does not

* Dr. Armstrong’s failure to raise this issue at the reconsideration level probably
precludes Dr. Armstrong from asserting it as a new issue before me. See 42 C.F.R.

§ 498 .56(a)(2); 72 Fed. Reg. 9479, 9486 (Mar. 2, 2007) (Accordingly, we propose to
revise § 498.56 and § 498.86 to prohibit providers and suppliers from submitting new
provider enrollment issues or evidence at the ALJ and DAB levels of review.).
undermine CMS’s authority to revoke Petitioner’s billing privileges. I have previously
addressed and rejected this argument in a similar case:

Petitioner’s argument overlooks that the regulation
authorizing revocation requires that the improper claim be for
services that Petitioner could not have provided to “‘a specific
individual,” not just “an individual.” 42 CFR.
§ 424.535(a)(8) (emphasis added). Contrary to Petitioner’s
argument, the regulation requires specificity with reference to
whom the services were allegedly provided, not a generic
identification of any individual. The specific individual
identified in a claim must be the specific individual who
received the services claimed, otherwise the claim is for
services that could not have been provided to “a specific
individual,” and revocation is permissible. Id.

Louis J. Gaefke, D.P.M., DAB CR2785, at 9 (2013), aff'd, DAB No. 2554, at 8 n.7
(2013). The revocation authority in section 424.535(a)(8) hinges on the appropriate
identification of a beneficiary in Medicare claims:

While section 424.535(a)(8) provides that “abuse of billing
privileges” involves submitting a claim or claims “that could
not have been furnished to a specific individual on the date of
service,” the purpose of the phrase “to a specific individual”
is to cover situations where a practitioner was available and
had the necessary equipment to furnish a service, but could
not have furnished the service to the identified beneficiary
given that beneficiary’s status or location.

Realhab, Inc., DAB No. 2542, at 16 (2013) (emphasis added). Thus, consistent with my
prior decision in Gaefke and the conclusion in Realhab, I reject Petitioner’s argument that
providing services to a living beneficiary not identified in the Medicare claims at issue
absolves him from the revocation of his Medicare billing privileges for submitting
Medicare claims that identified beneficiaries who could not have received those services
at the time.

Dr. Armstrong also argues that he never intended to defraud the Medicare program
through his improper billing, and that the billing errors were cases of mistaken
identification. P. Br. at 16-17. However, the operative language of the revocation
provision applicable in this case does not require that CMS demonstrate Dr. Armstrong
intended to defraud the Medicare program before it may revoke Petitioner’s billing
privileges. See 42 C.F.R. § 424.535(a)(8). It merely requires the existence of improper
claims. Id.; see also Louis J. Gaefke, D.P.M., DAB No. 2554, at 7 (“The plain language
of the regulation contains no requirement that CMS establish that the supplier acted with
fraudulent or dishonest intent.”). Therefore, Petitioner’s claims that he did not act
fraudulently by submitting his improper claims is not sufficient to negate CMS’s
authority to revoke Petitioner’s billing privileges pursuant to 42 C.F.R. § 424.535(a)(8).

4. The alleged improper claims related to Dr. Armstrong’s claims for
home health services under HCPCS Code G0181 are no longer at
issue in this matter.

Both parties present arguments regarding Dr. Armstrong’s use of HCPCS Code G0181
without a contemporaneous home health period, and whether those claims provide CMS
with the authority to revoke his billing privileges. However, my review is limited to the
reconsidered determination. See 42 C.F.R. § 498.5(1)(2). Here, CMS determined in its
reconsidered determination that Dr. Armstrong’s submission of claims for services that
could not have been provided because the named beneficiaries were deceased at the time
of service provided a basis for revocation under 42 C.F.R. § 424.535(a)(8). See CMS
Ex. | at 2 (“[I]t is really the billing for deceased beneficiaries that drives this
reconsideration determination.”). Indeed, CMS expressly found that Dr. Armstrong’s
billing under HCPCS Code G0181 was not a basis for revocation, writing that “the
aberrant home health billing, though unquestionably problematic, is not objectively
impossible, and therefore, standing alone, might not have been considered ‘abuse of
billing privileges’ within the narrow context of the regulation.” CMS Ex. | at 2.

Accordingly, CMS determined in the reconsidered determination that the basis for
revoking Dr. Armstrong’s Medicare billing privileges was limited to the instances where
he billed for services that could not have been provided to the specific individual named
in the claim because that individual was deceased. Dr. Armstrong’s use of HCPCS Code
G0181 is no longer at issue in this case and no longer supports CMS’s authority to revoke
Dr. Armstrong’s billing privileges.

5. CMS rejected Dr. Armstrong’s CAP, and that determination is not
reviewable by an ALJ.

Dr. Armstrong argues CMS did not consider his CAP and other remedial efforts to
correct his billing errors. He also cites to the results of an Arkansas Medicaid audit as
support that his corrective measures were indicative of his lack of fraudulent intent in
submitting the improper claims. P. Br. at 15.

CMS did not approve Dr. Armstrong’s CAP, and tacitly rejected it in the reconsidered
determination. CMS Ex. | at 2. I conclude that CMS’s determination not to grant or
approve the CAP means that CMS rejected it, even though it did not expressly say so.

It is well-settled that the Act and the Secretary’s implementing regulations do not provide
for administrative review of the agency’s rejection of a CAP. See 42 C.FR.
10

§ 405.809(b)(2) (“The refusal of CMS or its contractor to reinstate a provider or
supplier’s billing privileges based on a corrective action plan is not an initial
determination [subject to review].”); DMS Imaging, Inc., DAB No. 2313, at 5 (2010).
Finally, as explained above, whether or not Dr. Armstrong’s corrective measures support
his argument that he did not intend to defraud the Medicare program is not relevant to
this case. CMS need not find an intent to defraud before it has the authority to revoke
billing privileges under 42 C.F.R. § 424.535(a)(8).

V. Conclusion

For the reasons explained above, I grant summary judgment in favor of CMS. There
is no genuine dispute of the material facts and CMS is entitled to judgment affirming the
revocation of Dr. Armstrong’s billing privileges effective November 6, 2014.

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Zille Shah, M.D. and Zille Huma Zaim, M.D., PA
(PTAN: 1497957773, 195262269),
Petitioner,

v.

Centers for Medicare & Medicaid Services,
Respondent.

Docket No. C-15-2436
Decision No. CR4243

Date: September 22, 2015

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services
(CMS) sustaining the determination to revoke the Medicare enrollment and billing
privileges of Zille Shah, M.D. and Zille Huma Zaim, M.D., Professional Association for
a period of three years.! Revocation is justified pursuant to 42 C.F.R. § 424.535(a)(8)
(2015) because Petitioner submitted or caused to be submitted Medicare reimbursement
claims that she could not have furnished on the claimed service dates.

' These two names in fact identify one individual who enrolled in Medicare using two
different identities, one as an individual physician and the other as a professional
association. I refer to her as “Petitioner” for the remainder of this decision.
I. Background

Petitioner, a physician, filed her hearing request in order to challenge a reconsidered
determination that affirmed the initial determination to revoke her enrollment and billing
privileges. The parties cross-moved for summary judgment. Each party filed a brief
supporting its respective position and each party replied to its adversary’s brief?

CMS filed 11 exhibits supporting its motion. These are identified as CMS Ex. | -CMS
Ex. 11. Petitioner filed exhibits supporting its cross-motion. Petitioner used an
idiosyncratic method of identifying her exhibits even though I issued specific instructions
to the parties explaining that each exhibit should be numbered separately and that letter
prefixes should not be used. Petitioner’s identified her exhibits as P. Ex. 1 — P. Ex. 9; P.
Ex. 10a — P. Ex. 100; P. Ex. lla—P. Ex. lle; P. Ex. 12 — P. Ex. 20; and P. Ex. 20a.

Petitioner objected to my receiving certain of CMS’s exhibits on the grounds that they are
“incomprehensible” or not credible and reliable. Petitioner’s Resp. to CMS’s Mot. for
Summ. J. at 2. Although she does not state her objections specifically, Petitioner seems
to be objecting to CMS Ex. 8, which contains the declaration of Matthew Kirk and
records of claims that Petitioner filed. I overrule the objection. Petitioner asserts --
without explanation -- that the declaration of Matthew Kirk is not credible. I need not
address that argument in order to issue summary judgment favorable to CMS because
CMS does not rely on anything in the affidavit to establish facts that are in dispute. As I
will explain, Petitioner admits that she was out of the country during periods of time
when she claimed reimbursement for services that she ostensibly provided to Medicare
beneficiaries. Additionally, the claims are not incomprehensible. I note, additionally,
that Petitioner does not deny filing, or causing to be filed, any of the claims that are
identified in the exhibit. Petitioner has not explained its credibility and reliability
objections and J overrule them for that reason. I receive CMS Ex. 1 —- CMS Ex. 11.

CMS objected to my receiving P. Exs. 8-15, P. Exs. 18 - 19, and P. Ex. 20a on the ground
that these comprise new evidence that Petitioner did not file at reconsideration and did
not make a showing of good cause for its failure to do so. I sustain CMS’s objections to
these exhibits. I receive P. Exs. 1 - 7; P. Ex. 16—P. Ex. 17; and P. Ex. 20. I exclude the
remainder of Petitioner’s exhibits.

> Petitioner also filed documents that she styled as “amended” briefs addressing the
issues of whether CMS should be granted summary judgment and Petitioner’s own
motion for summary judgment. She filed these briefs without seeking my permission to
file them. They are not in compliance with the pre-hearing order that I issued in this case
because in total, Petitioner’s arguments on both CMS’s motion and its own motion
exceed 25 pages. However, I have elected to read these briefs and to consider all of
Petitioner’s arguments.
I must exclude documents that Petitioner failed to submit at reconsideration absent a
showing of good cause by Petitioner for its failure to do so. 42 C.F.R. § 498.56(e)(1).
Petitioner failed to submit the challenged exhibits at reconsideration and she has not
established good cause for her failure. Petitioner argues that the notice that she received
of her right to seek reconsideration was ambiguous, stating only that it “may” submit
additional evidence at reconsideration and not advising Petitioner that the requirement to
do so is mandatory. I agree that the notice is ambiguous. But, here, Petitioner was
represented by counsel at reconsideration and counsel is charged with the responsibility
of reading and understanding governing regulations. 42 C.F.R. § 498.56(e)(1) is
unambiguous. Counsel should have known what her responsibilities were.

Moreover, none of the exhibits that Petitioner offers — including those that I exclude —
establishes facts that contradict the undisputed facts upon which I base this decision.

II. Issue, Findings of Fact and Conclusions of Law
A. Issue

The issue is whether the undisputed material facts establish that CMS is authorized to
revoke Petitioner’s Medicare participation and billing privileges due to her having
submitted or causing to be submitted Medicare reimbursement claims for items or
services that could not have been provided on the claimed service dates.

B. Findings of Fact and Conclusions of Law

CMS argues that revocation of Petitioner’s Medicare participation and billing privileges
is authorized by 42 C.F.R. § 424.535(a)(8). The version of that regulation in effect on
October 30, 2014, the effective date of the revocation determination, provides in relevant
part that CMS may revoke a provider or a supplier’s participation where the provider or
supplier submits a claim or claims for services that could not have been furnished to a
specific individual on the alleged date or dates of services. The regulation specifically
lists the circumstance where the provider or supplier is out of the country on the alleged
service date as one of the events where revocation is justified

On its face the regulation gives CMS authority to revoke participation where there is even
one instance in which a provider or supplier files even a single claim for services that he
or she could not have provided on the alleged service date. CMS has chosen, in its

> The regulation was amended in February 2015 to add additional circumstances in
which revocation is justified. The amendments do not change the language that is the
basis for the revocation determination in this case.
discretion, to give some leeway to providers. The preamble to the regulation states that
there will be at least three instances of abusive billing practices before CMS exercises its
discretion to revoke. 73 Fed. Reg. 36,448, 36,455 (June 27, 2008).

CMS contends that Petitioner was out of the country on dates for which she submitted
multiple claims for items or services that were allegedly provided on those dates. It
asserts that these multiple instances of false claims establish a pattern of such claims that
justify its determination to revoke. I find these assertions to be amply supported by the
undisputed material facts. CMS’s revocation determination plainly is justified by these
undisputed facts.

The undisputed facts establish that Petitioner was out of the country on dates that
included June 18 — June 20, 2011; September 27 — October 2, 2011; May 2 — May 4,
2012; and May 20 — June 4, 2013. CMS Ex. | at 2-5; CMS Ex. 6 at 1-2; CMS Ex. 8 at
68-72. She submitted reimbursement claims — more than 90 in total — for services that
she allegedly provided on these dates when she was not in the United States. CMS Ex. |
at 1-5; CMS Ex. 8 at 6-72. Petitioner admits being out of the country on the dates that
are at issue and she admits additionally that she submitted or caused to be submitted
claims for services that were ostensibly provided by her on these dates. CMS Ex. 5 at 5.

Petitioner has thrown up a barrage of arguments challenging the revocation determination
but she has not denied any of the facts alleged and demonstrated by CMS. Her attacks,
essentially, are collateral attacks on CMS’s determination and I find them to be without
merit.

Essentially, Petitioner argues that what she characterizes as billing mistakes are not her
fault. The gist of her argument is that, while she may have made mistakes, she made
them in good faith and they were not so egregious as CMS contends them to be.

Petitioner asserts that she found CMS’s reimbursement criteria to be confusing and
difficult to understand and that she relied on the advice of a billing expert. She asserts
that she relied on CMS’s “incident to” billing policies. She contends that when she was
out of the country her patients were seen by a nurse practitioner who functioned under
Petitioner’s authority. Section 1861(s)(2)(A) of the Social Security Act and 42 C.F.R.

§ 410.26(b) (2011-2013) allow a physician to bill for services performed by auxiliary
personnel incident to the physician’s services if certain requirements are met. Among
other things, the services must be furnished under the direct supervision of a physician.
42 CER. § 410.26(b)(5). A CMS Medicare Learning Network notice about “incident to”
services posted in 2004 clearly explains that, “Physicians do not have to be physically
present in the patient’s treatment room while these services are provided, but must
provide direct supervision, that is, the physician must be present in the office suite to
render assistance, if necessary.” Medicare Learning Network Matters Article #: SE0441,
“Incident to” Services, available at https://www.cms.gov/site-search/search-
results.html?q =SE0441%202004. Thus, Petitioner could not have met the “incident to”
billing requirements if she was out of the country at the time the services were furnished.

She also argues that the total number of false claims that she submitted is not 90 — but
does not deny that she submitted some unspecified number of claims for services that she
could not have provided on the claimed service dates. She makes other assertions as
well, all of which are intended to deflect blame for the false claims that she submitted or
caused to be submitted.

But, what Petitioner does not deny is that she was out of the country for periods of time
and that she submitted or caused to be submitted claims for services that she allegedly
provided on dates when she was not in the United States. That concession is all that
CMS needs in order to authorize revocation of Petitioner’s participation.

A basic misconception that underlies Petitioner’s arguments is that there must be proof of
culpability to justify revocation pursuant to 42 C.F.R. § 424.535(a)(8). That is simply not
so. Louis J. Gaefke, D.P.M., DAB No. 2554 at 5-6 (2013). The regulation is not an anti-
fraud regulation so much as it is intended to allow CMS to disassociate itself from
providers and suppliers who are not rigorous in assuring that their claims are accurate.
The Medicare program receives millions of reimbursement claims every year. It does not
have the resources to audit every claim for accuracy. Rather, it relies on providers and
suppliers to state their claims accurately. CMS is not required to do business with any
provider or supplier who fails to fulfill this basic obligation.

The regulation, as I have stated, permits revocation where there is any instance of a claim
for which the provider or supplier could not have provided the claimed service. CMS, in
its discretion, has cut some slack for providers or suppliers by stating that it will not
revoke absent at least three instances of such claims. But, that is not a legal requirement
and, moreover, whether Petitioner submitted at least 90 false claims or somewhat fewer
than that number, there is no doubt that she submitted or caused to be submitted more
than three of them.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Adora Healthcare Services, Inc.,

(NPI: 1942385281),

Petitioner,

v.

Centers for Medicare & Medicaid Services,

Respondent.

Docket No. C-15-682
Decision No. CR4229

Date: September 18, 2015

DECISION

I reverse the determination of the Centers for Medicare & Medicaid Services (CMS) to
revoke the Medicare enrollment and billing privileges of Petitioner, Adora Healthcare
Services, Inc. Based on an attempted on-site visit, CMS determined that Petitioner was
no longer operational. Petitioner has demonstrated, however, it moved from that location
and timely reported its change of address to the Medicare contractor.

I. Background

Petitioner is a home health agency that was enrolled as a provider in the Medicare
program. On July 7, 2014, the CMS administrative contractor, Palmetto GBA
(Palmetto), attempted to conduct a site visit of Petitioner’s facility at 14405 Walters
Road, Suite 340, Houston, Texas. On September 25, 3014, Palmetto notified Petitioner,
based on the attempted on-site review, it determined Petitioner was “no longer
operational to furnish Medicare covered items or services and is not meeting Medicare
enrollment requirements under statute or regulation to supervise treatment of or to
provide Medicare covered items or services for Medicare patients.” CMS Exhibit (Ex.)
1; see 42 CFR. § 424.535(a)(5); 42 U.S.C. §§ 1302, 1395ce(j), 1395hh. Accordingly,
the contractor revoked Petitioner’s enrollment effective July 7, 2014, the date of the
attempted site visit. CMS Ex. 1.

Petitioner requested a reconsidered determination asserting that it moved its practice
location and timely notified the contractor of this change on June 26, 2014. CMS Ex. 2.
On December 4, 2014, CMS affirmed the revocation stating that it contacted Palmetto to
verify Petitioner’s assertion, but Palmetto had no record of Petitioner’s change of address
notification. CMS Ex. 5.

Petitioner submitted a request for hearing (RFH) to seek review of the reconsidered
determination and included four exhibits marked A through D (RFH Exs. A— D). The
matter was assigned to me for hearing and decision, and I issued an Acknowledgment
and Prehearing Order (Prehearing Order) that established a briefing schedule requiring
the parties to submit all of their arguments and proposed exhibits in a prehearing
exchange that included any witness direct testimony in writing as a sworn exhibit and any
motions for summary judgment. CMS timely filed its prehearing exchange including a
motion for summary judgment (CMS Br.) and CMS Exs. | — 8. Petitioner timely filed its
prehearing exchange including a brief in opposition to the CMS motion for summary
judgment (P. Br.) and Petitioner’s Exhibits (P. Exs.) 1 and 2.

Petitioner objected to CMS Exs. 6 — 8. Petitioner asserts that CMS Ex. 6, the
investigator’s site visit report, is not signed or dated by the investigator. However, CMS
also submitted the investigator’s written declaration as CMS Ex. 8, which authenticates
CMS Ex. 6. Petitioner also objects to two witness affidavits of direct testimony, CMS
Exs. 7 and 8, because they are undated. I overrule Petitioner’s objection because the fact
that they are undated would only potentially affect the weight I may give them and not
their ultimate admissibility. CMS has not opposed any of Petitioner’s proposed exhibits.
Therefore, I admit CMS Exs. | — 8, RFH Exs. A—D, and P. Exs. | — 2.

Petitioner also submitted affidavits of direct testimony from two proposed witnesses as
P. Exs. 1 and 2. Neither party requested to cross-examine any of the proposed witnesses.
I informed the parties that I would only conduct a hearing if either party submitted
affidavits of direct testimony from a witness, and the opposing party asked to cross-
examine that witness. Prehearing Order §10. Because the parties did not seek to cross-
examine any witness, an in-person hearing is not necessary, and I will decide this matter
on the written record. Prehearing Order §11; see Marcus Singel, D.P.M., DAB No. 2609,
at 5-6 (2014).
II. Issue

Whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing
privileges because it was not operational; and

Whether Petitioner properly reported a change of address to CMS within 90 days.
III. Findings of Fact and Conclusions of Law
1. CMS conducted an attempted on-site review of Petitioner on July 7, 2014.

The parties agree that on July 7, 2014, a CMS contractor attempted to conduct an
inspection of Petitioner at 14405 Walters Road, Suite 340, Houston, Texas. CMS Ex. 6
at 1; CMS Ex. 7 at 2; CMS Ex. 8. The contractor visited the Walters Road location based
on location notifications it received from Petitioner on June 20, 2011, and December 26,
2013. CMS Ex. 7 at 2. The inspector reported that, although Petitioner’s name was listed
on the building directory, the inspector was unable to locate the specific office suite of
record. CMS Ex. 6 at 1; CMS Ex. 8 at 2. The inspector’s report states the inspector
called Petitioner’s “listed number” and there was no answer, but she does not document
the phone number anywhere in her report. CMS Ex. 6 at |. Nonetheless, the inspector
testified the phone number was listed on two websites for Petitioner, and she confirmed
this fact through her phone records. CMS Ex. 8 at 2. Based on the investigator’s
attempted site-visit, CMS concluded that Petitioner was “no longer operational to furnish
Medicare covered items or services, or failed to satisfy any Medicare enrollment
requirement.” See 42 C.F.R. § 425.535(a)(5).

2. CMS revoked Petitioner as non-operational based on its attempted on- site
review.

A provider or supplier must be enrolled in the Medicare program and have a billing
number in order to be eligible to receive payment for services rendered to a Medicare-
eligible beneficiary. 42 C.F.R. § 424.505. “Providers” include home health agencies.
See 42 U.S.C. §§ 1395x(u); 42 C.F.R. § 400.202. CMS may perform an “on-site review”
of a provider to “verify that the enrollment information submitted to CMS or its agents is
accurate and to determine compliance with Medicare enrollment requirements.”

42 CFR. § 424.517(a). CMS may use the results of an on-site review to support a
decision to deny or revoke a provider or supplier’s enrollment. 42 C.F.R. § 424.517(a).

Upon on-site review, CMS determined that Petitioner was no longer operational to
continue to furnish Medicare-covered items or services. Therefore CMS revoked the
Petitioner’s enrollment and billing privileges effective July 7, 2014, the date of the
attempted site visit. CMS Ex. 1; see 42 C.F.R. § 424.535(a)(5).
3. Petitioner has come forward with persuasive evidence demonstrating that it
moved its location on July 1, 2014 and timely mailed the Medicare contractor
notification five days prior on June 26, 2014.

Home health agencies, such as Petitioner, are required to report a change of address to the
Medicare contractor within 90 days. See 42 C.F.R. § 424.516(e)(2). On July 1, 2014,
Petitioner asserts its business moved from the Walters Road location to 14511 Falling
Creek Drive, Suite 100-12, Houston, Texas on July 1, 2015. CMS Ex. 3; RFH Exs.
C-—D. Petitioner maintains, five days prior to the move, on June 26, 2014, it notified
Palmetto of its pending address change. On that date, Petitioner reports its management
completed a notification on the Medicare Enrollment Application, CMS Form 855-A, and
mailed it to Palmetto, its CMS contractor.

In support of the notification, Petitioner relies on various submissions, including the
written direct testimony of two employees. P. Exs. | — 2. Specifically, Petitioner submits
the written declarations of Petitioner’s manager and authorized official (P. Ex. 1; CMS
Ex. 3 at 12) and Petitioner’s assistant office manager (P. Ex. 2). Petitioner’s manager
affirms that on June 26, 2014, he completed the CMS Form 855-A to notify CMS that
Petitioner was relocating to the Falling Creek location. P. Ex. 1. Petitioner’s assistant
office manager testified that, after Petitioner’s manager completed the notification, she
“reviewed [it] for accuracy and completion” on the same date. P. Ex. 2. Petitioner’s
manager attested that, also on June 26, 2014, he “personally dropped off the envelope
with form 855-A in the mail for delivery to Palmetto GBA.” P. Ex. 1. The assistant
office manager supports the manager’s statements declaring that the form “was dropped
in the mail by [Petitioner’s manager]... on June 26, 2014.” P. Ex. 2. CMS chose not to
challenge Petitioner’s witness testimony through cross-examination.

Petitioner also submits its copies of the June 26, 2014, CMS Form 855-A, which further
bolsters Petitioner’s notification assertions. The enrollment form contains the manager’s
signature, dated June 26, and it reports that Petitioner’s move will be effective July 1,
2014. RFH Ex. C; CMS Ex. 3. Petitioner argues it submitted the change in address
notification, for purposes of its Medicaid coverage, to the Texas Department of Aging
and Disability Services (TDADS) at the same time it submitted the change in address
notification to Palmetto. In support, Petitioner filed a notice from TDADS assigning
Petitioner a July 14, 2014, effective date for its change in address. CMS Ex. 4; RFH Ex.
C at 1-2. CMS argues, however, that the state notice does not support that Palmetto
received the timely change of information application prior to the July 7 on-site visit.
CMS Br. at 6-7. Nevertheless, a provider is not required to report a change in address
before its move and is actually afforded 90 days to report a change in address. See 42
CFR. § 424.516(e)(2).

Finally, Petitioner offers the “Home Health Certification and Plan of Care” for multiple
patients for care services it provided during July 2014. Each of these certifications
contains Petitioner’s Falling Creek address. RFH Ex. D. This information helps
persuade me that Petitioner was in fact operating at a new location.

CMS contends that it has no record of ever having received the change of address
notification from Petitioner. CMS Br. at 5. In support, CMS offers the declaration of a
Palmetto provider enrollment manager. CMS Ex. 7. Palmetto’s enrollment manager
attested generally that the provider enrollment area of Palmetto reviewed its records and
determined that between December 27, 2013 and December 17, 2014, Palmetto did not
receive the CMS Form 855-A from Petitioner regarding a change of address. CMS Ex. 7
at 2 § 12).

Although I ascertain no reason to discredit CMS’s assertion that Palmetto did not receive
notification of Petitioner’s move, I do find Petitioner’s witnesses unchallenged
recollections credible and consistent with Petitioner’s copy of the form providing notice
of the move and also consistent with TDADS’s verification of Petitioner’s move in July
2014. Further I do not find the inspector’s assertion that she called Petitioner during her
attempted site inspection compelling because she did not list the actual number she states
she attempted to call in her inspection report. Overall, I am persuaded that Petitioner
provided CMS with the requisite notification of its change of address by mailing the form
to CMS ina timely manner. Because Palmetto concluded Petitioner was no longer
operational based on its on-site review of a former address, there was no legal basis for
CMS to revoke Petitioner’s Medicare enrollment.

IV. Conclusion

I reverse the CMS determination to revoke Petitioner’s enrollment and find that Petitioner
properly notified the Medicare contractor of its change in location. I accordingly also
reverse the two-year reenrollment bar that CMS imposed on Petitioner, which had been
effective since July 7, 2015.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Ocean Orthopedic Services, Inc.

(NPI: 0266200001),

Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-15-747
Decision No. CR4218

Date: September 15, 2015

DECISION

The Centers for Medicare & Medicaid Services (CMS) revoked the Medicare billing
privileges of Petitioner, Ocean Orthopedic Services, Inc. Petitioner requested a hearing
to challenge the revocation. As discussed below, the evidence of record supports CMS’s
determination. Therefore, I affirm the revocation of Petitioner’s Medicare billing
privileges.

I. Background

Petitioner was enrolled in the Medicare program as a supplier of durable medical
equipment, prosthetics, orthotics, and supplies (DMEPOS). CMS Exhibits (Exs.) 3, 4.
On June 10 and 11, 2014, an inspector from a CMS administrative contractor, the
National Supplier Clearinghouse (NSC), attempted to conduct a site inspection at
Petitioner’s location that is on file with CMS. CMS Ex. 1. A site inspection could not be
completed on either date and, on July 11,2014, NSC issued an initial determination
revoking Petitioner’s Medicare supplier number effective June 11,2014.' The initial

determination stated that Petitioner was not operational and not accessible and staffed
during its posted hours of operation.’ NSC barred Petitioner from re-enrolling in the

Medicare program for two years from the effective date. CMS Ex. 4.

Petitioner filed a timely request for reconsideration with NSC and submitted additional
evidence to the NSC hearing officer assigned to the case. CMS Ex. 5. On October 24,
2014, the NSC hearing officer issued an unfavorable reconsidered determination
upholding the revocation of Petitioner’s Medicare billing privileges on the basis that
Petitioner “ha[d] not shown compliance with supplier standards [sic] 7.” CMS Ex. 6 at 4.

On December 19, 2014, Petitioner timely filed a request for hearing (RFH) before an
administrative law judge. CMS Ex. 7. On January 7, 2015, Administrative Law Judge
Carolyn Cozad Hughes issued an Acknowledgement and Pre-hearing Order (Order).
Pursuant to the Order, CMS filed a motion for summary judgment, supporting brief
(CMS Br.), and seven exhibits (CMS Exs. 1-7). Petitioner submitted a brief (P. Br.) and
six exhibits (P. Exs. 1-6). On September 2, 2015, this case was transferred to me.

II. Decision on the Record

In the absence of objection, I admit CMS Exs. 1-7 and P. Exs. 1-6 into the record. With
its RFH, Petitioner submitted a copy of the reconsidered determination that has been
admitted as CMS Ex. 6. Petitioner also submitted with the RFH an updated Form CMS-
855S, dated December 15, 2014, and an updated copy of the signage posting the hours it
is currently open to the public. The RFH and its accompanying documents are found at
CMS Ex. 7.

The Order advised the parties that they must submit written direct testimony for each
proposed witness and that an in-person hearing would only be necessary if the opposing
party requested an opportunity to cross-examine a witness. Order §§ 8-11; see Vandalia
Park, DAB No. 1940 (2004); Pacific Regency Arvin, DAB No. 1823, at 7-8 (2002)
(holding that the use of written direct testimony for witnesses is permissible so long as

' CMS subsequently agreed to change the effective date of Petitioner’s revocation to
August 11,2014, which is consistent with a revocation based on noncompliance with
Supplier Standard 7 and 42 C.F.R. § 424.57(e)(1). CMS Br. at 4n4.

> NSC also found that Petitioner failed to comply with Supplier Standard 10 (42 C.F.R.
§ 424.57(c)(10)). CMS Ex. 4 at 2. However, the NSC hearing officer determined upon
reconsideration that Petitioner complied with this requirement. CMS Ex. 6 at 4.
the opposing party has the opportunity to cross-examine those witnesses).° Neither party
submitted proposed witnesses or written direct testimony. Therefore, there is no need for
an in-person hearing, and I issue this decision based on the written record. Order §§ 8-11.

III. Issue

Whether CMS had a legitimate basis for revoking Petitioner’s Medicare billing privileges
for failing to comply with Supplier Standard 7 (42 C.F.R. § 424.57(c)(7)). Ihave
jurisdiction to decide this issue. 42 C.F.R. §§ 498.3(b)(17), 498.5(1)(2); see also 42
U.S.C. § 1395cc(j)(8).

IV. Findings of Fact, Conclusions of Law, and Analysis*

In order for a DMEPOS supplier to receive Medicare payments for items furnished to a
Medicare-eligible beneficiary, the Secretary of Health and Human Services must first
issue a supplier number to that DMEPOS supplier. 42 U.S.C. § 1395m(j)(1)(A). To
receive direct-billing privileges, a DMEPOS supplier must meet and continually comply
with each of the supplier enrollment standards, including Supplier Standard 7, the
requirement to maintain a physical location that is accessible and staffed during posted
hours of operation. 42 C.F.R. § 424.57(c)(7)(i)(C). CMS will revoke a DMEPOS
supplier’s billing privileges if the supplier is found not to meet the standards found at 42
C.F.R. § 424.57(b) and (c). The revocation is then effective 30 days from the date the
supplier is sent the notice of revocation. 42 C.F.R. § 424.57(e)(1). After a DMEPOS
supplier’s Medicare billing privileges are revoked, it is barred from re-enrolling in the
Medicare program for one to three years. 42 C.F.R. § 424.535(c).

1. The NSC site inspector could not gain entry to Petitioner’s facility at
872 Charles Street, North Providence, Rhode Island, when the
inspector attempted to inspect the facility on June 10 and 11, 2014.

On June 10 and 11,2014, an NSC inspector attempted to conduct an unannounced site
inspection at Petitioner’s facility located at 872 Charles Street, North Providence, Rhode
Island. CMS Exs. 1,4, 6. Petitioner’s posted hours of operation were listed as Monday,
from 9:00 am to 4:30 pm; and Tuesday, Wednesday, and Friday, from 9:00 am to 2:00
pm. The sign posted on the door also provided a telephone number to call for an
appointment. CMS Exs. | at 3; 2 at 1. I observe that Petitioner’s Medicare enrollment
application, Form CMS-855S, dated June 12, 2012, listed the following hours of

> Administrative decisions cited in this decision are accessible on the internet at:
http://www.hhs.gov/dab/decisions/index.html.

4 My findings of fact and conclusions of law are set forth in italics and bold in the
discussion captions of this decision.
operation: Monday to Friday, 8:00 am to 4:30 pm. CMS Ex. 3 at 16. The inspector’s
report found that at approximately 1:32 pm on June 10, 2014, the facility was closed and
the door was locked, the lights were off, and there was no answer when she knocked on
the door. On June 11, 2015, at approximately 9:38 am, the NSC inspector attempted
another site inspection and again found the facility to be closed during Petitioner’s posted
hours of operation. At that time, the NSC inspector observed that the doors were locked,
the lights were off, and there was no response after she knocked twice. CMS Ex. | at 2,
7. The NSC inspector’s observations that Petitioner’s office was closed on both
occasions are corroborated by Petitioner, in that Petitioner acknowledged in its request
for reconsideration that its office hours are “by appointment.” CMS Ex. 5 at 1.
Subsequently, Petitioner admitted in its brief that it erred in “not updating the National
Supplier Clearinghouse of the new office hours and not posting the new office hours at
872 Charles Street, North Providence, RI 02904.” P. Br. at 1. Petitioner reported that the
incorrectly posted hours of operation was an “administrative over site [sic]” and a
“clerical error.” Id. Thus, Petitioner has not disputed that it was not open at the time of
both attempted site inspections.

Therefore, based on the evidence of record, I find that the NSC inspector attempted to
conduct site inspections of Petitioner’s facility at 872 Charles Street, North Providence,
Rhode Island, on June 10 and 11, 2014, during Petitioner’s posted hours of operation.
However, the NSC inspector was unable to gain entry to the facility and complete the
inspections because the office was closed.

2. CMS had a legitimate basis to revoke Petitioner’s Medicare billing
privileges because Petitioner ’s location was not accessible and staffed
during its posted hours of operation as required by 42 C.F.R.

§ 424.57(c)(7)(A)(C).

DMEPOS suppliers must permit CMS or its agents to conduct on-site inspections to
ascertain supplier compliance with enrollment standards, and the supplier must be
accessible to beneficiaries and to CMS and staffed during posted hours of operation. 42
CFR. § 424.57(c)(7)(i)(C), (c)(8). CMS may perform periodic site visits to determine
whether the supplier is complying with Medicare enrollment requirements. 42 C.F.R.
§§ 424.510(d)(8), 424.515(c), 424.517(a).

The facts in this case establish that Petitioner’s practice location was not open and
available for the NSC’s site inspector to conduct site inspections on June 10 and 11,
2014. Therefore, CMS had a legitimate basis to conclude that Petitioner was not in
compliance with Supplier Standard 7, 42 C.F.R. § 424.57(c)(7)(i)(C).

In its brief, Petitioner “admits the error of not updating the [NSC]” and “not posting the
new office hours.” P. Br. at 1. Petitioner acknowledges that it was not open at the time
of the attempted site inspections because there was an oversight and clerical error
regarding the hours of operation that were included on the enrollment application and
posted on its door. Id. Petitioner contends that it has subsequently changed its hours to
be “by appointment only”; however, the subsequent change of its hours does not remedy
the fact that it was not open at the time of two attempted site inspections that were made
during the hours in which it had claimed to be open, both in its enrollment application
and in its posted hours.

A DMEPOS supplier is neither “open to the public” nor “accessible” if the supplier’s
location is closed due to such reasons as the staff being out for lunch, on a break, making
patient visits, or out of the office for any reason. See Ita Udeobong, d/b/a Midland Care
Med. Supply & Equip., DAB No. 2324, at 6-7 (2010). Even if Petitioner’s staff members
had been out of the office for a short period of time due to a change in office hours,
which is not the case here, this is not a sufficient excuse, as it does not show that
Petitioner was accessible and properly staffed when NSC attempted site inspections
during Petitioner’s posted hours of normal operation. CMS Ex. 1. A supplier may not
close, even temporarily, during its posted hours of operation. Complete Home Care, Inc.,
DAB No. 2525, at 5 (2013). It is incumbent on Petitioner to make whatever reasonable
arrangements are necessary to keep its business open while allowing for patient
consultations and visits as well as breaks for staff members. As stated in a previous case:

A Medicare supplier differs from a strictly private business in that it is an
integral part of a publicly run program. The requirement that a supplier be
open at all times during normal business hours reflects CMS’s
determination that a supplier be available to beneficiaries to meet their
needs and to alleviate their medical conditions.

Ato Z DME, LLC, DAB CR1995, at 6 (2009), aff'd, DAB No. 2303 (2010). Also, the
regulatory drafters contemplated allowing facilities to temporarily close during posted
hours to account for circumstances such as short-term closures, and instead chose to
emphasize that a supplier’s place of business must always remain publicly accessible
during posted hours of operation. Complete Home Care, Inc., DAB No. 2525, at 6. The
drafters explained in the preamble to the final rule establishing additional enrollment
requirements for DMEPOS suppliers that they believed a supplier “should be available
during posted business hours” and “should do its best to plan and staff for temporary
absences.” 75 Fed. Reg. 52,629, 52,636 (August 27, 2010).

Petitioner, citing to Wayne View Convalescent Ctr., DAB CR1502 (2006), urges that I
should disregard this “incident” because it is “de minimus” [sic] and argues that
Petitioner has historically been compliant with Medicare supplier standards. P. Br. at 2.
The authority Petitioner relies upon is not persuasive, in that the aforementioned decision
involved the imposition of civil monetary penalties for failing to comply substantially
with federal program requirements for long-term care facilities, which require CMS to
consider, inter alia, “the facility’s history of noncompliance.” 42 C.F.R. § 488.438(f)(1).
A history of compliance is not an enumerated factor among the supplier standards listed
in 42 C.F.R. § 424.57(c). Thus, a history of noncompliance is not relevant to the instant
determination, and I have no such authority to disregard an unsuccessful inspection
attempt that has been found by CMS to be a basis for the revocation of billing privileges.
Moreover, Petitioner acknowledges that “[t]he hours of operation have been consistent
for over 20 years.” P. Br. at 1. Petitioner’s statement suggests that its hours have either
been incorrectly posted for a very long time or were not correctly listed when it first
posted them. Therefore, I conclude that CMS has a basis for its determination that
Petitioner was not in compliance with Supplier Standard 7 because it was not accessible
and staffed during posted business hours, and CMS properly revoked Petitioner’s
Medicare billing privileges. 42 C.F.R. § 424.57(c)(7)(i)(C).

V. Conclusion

Based on the reasons stated above, I affirm the determination to revoke Petitioner’s
DMEPOS supplier number and Medicare billing privileges, pursuant to 42 C.F.R.
§ 424.57(c)(7)(i(C), effective August 11, 2014.

/s/
Leslie C. Rogall
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Rhonda Louk Kuehn,
(OI File No. H-15-4-0168-9),

Petitioner,
v.
The Inspector General.
Docket No. C-15-2085
Decision No. CR4217

Date: September 15, 2015

DECISION

Petitioner, Rhonda Louk Kuehn, was a nurse, licensed in the State of Texas. She pled
guilty to one misdemeanor count of theft, admitting that she submitted false claims to the
Medicaid program. Based on this, the Inspector General (1.G.) has excluded her for five
years from participating in Medicare, Medicaid, and all federal health care programs, as
authorized by section 1128(a)(1) of the Social Security Act (Act). Petitioner appeals the
exclusion. For the reasons discussed below, I find that the I.G. properly excluded
Petitioner Kuehn and that the statute mandates a minimum five-year exclusion.

Background

In a letter dated February 27, 2015, the I.G. notified Petitioner that she was excluded
from participating in Medicare, Medicaid, and all federal health care programs for a
period of five years because she had been convicted of a criminal offense related to the
delivery of an item or service under the Medicare or state health care program. The letter
explained that section 1128(a)(1) of the Act authorizes the exclusion. I.G. Ex. 1.
Petitioner requested review.
Each party submitted a written argument (I.G. Br.; P. Br.). The I.G. submitted five
exhibits (I.G. Exs. 1-5). Petitioner submitted 14 exhibits which she marked P. Exs. 2-15.!
In the absence of any objection, I admit into evidence I.G. Exs. 1-5 and P. Exs. 2-15.

The parties agree that an in-person hearing is not necessary. I.G. Br. at 5; P. Br. at 3.
Discussion

Petitioner must be excluded from program participation for
a minimum of five years, because she was convicted of a
criminal offense related to the delivery of an item or service
under Medicare or a state health care program, within the
meaning of section 1128(a)(1).

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must
exclude an individual who has been convicted under federal or state law of a criminal
offense related to the delivery of an item or service under Medicare or a state health care
program. 42 C.F.R. § 1001.101(a).

Here Petitioner Kuehn was a private duty nurse, caring for Medicaid-eligible children in
the state foster care program. She submitted claims to the Texas Medicaid program for
hours of private duty nursing that she could not have and did not provide. I.G. Exs. 2, 4.
On December 15, 2014, a Texas state court accepted her guilty plea to charges of theft.
1G. Ex. 2. Although initially charged with felony theft, it appears that, pursuant to a plea
agreement, the conviction was reduced to a misdemeanor and that she was granted
deferred adjudication and placed on six months supervision. The court also ordered her
to pay $162 in court costs and $5,830 in restitution. I.G. Ex. 2 at 1; 1.G. Ex. 3.

Petitioner maintains that, because of the deferred adjudication, she was not convicted of a
criminal offense. P. Br. at 1,2. From the face of the conviction documents, I cannot tell
whether the terms of her deferred adjudication reduced her felony charge to a
misdemeanor conviction, or, as Petitioner maintains, eliminated the charges entirely. For
purposes of this exclusion, however, it doesn’t matter. The statute and regulations
provide that a person is “convicted” when “a judgment of conviction has been entered”
regardless of whether that judgment has been expunged or otherwise removed. Act

§ 1128(4)(1); 42 C.F.R. § 1001.2(a)(2). Individuals who participate in “deferred
adjudication or other program or arrangement where judgment of conviction has been
withheld” are also “convicted” within the meaning of the statute. Act § 1128(i)(4); 42

' Petitioner did not submit an exhibit marked P. Ex. 1.

> T make this one finding of fact/conclusion of law.
C.F.R. § 1001.2(d). Based on these provisions, the Departmental Appeals Board
characterizes as “well established” the principle that a “conviction” includes “diverted,
deferred and expunged convictions regardless of whether state law treats such actions as
a conviction.” Henry L. Gupton, DAB No. 2058 at 8 (2007), aff’d sub nom. Gupton v.
Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).

The Board explained why, in these I.G. proceedings, the federal definition of
“conviction” must apply. That definition differs from many state criminal law
definitions. For exclusion purposes, Congress deliberately defined “conviction” broadly
to ensure that exclusions would not hinge on the state criminal justice policies. Quoting
the legislative history, the Board explained:

The rationale for the different meanings of “conviction” for
state criminal law versus federal exclusion law purposes
follows from the distinct goals involved. The goals of
criminal law generally involve punishment and rehabilitation
of the offender, possibly deterrence of future misconduct by
the same or other persons, and various public policy goals.
[footnote omitted] Exclusions imposed by the I.G., by
contrast, are civil sanctions, designed to protect the
beneficiaries of health care programs and the federal fisc, and
are thus remedial in nature rather than primarily punitive or
deterrent. . . . In the effort to protect both beneficiaries and
funds, Congress could logically conclude that it was better to
exclude providers whose involvement in the criminal system
raised serious concerns about their integrity and
trustworthiness, even if they were not subjected to criminal
sanctions for reasons of state policy.

Gupton, at 7-8.

Petitioner also complains that she would not have agreed to a guilty plea had she
understood that it would result in exclusion from program participation. She blames her
employer for the fraud that underlay her conviction, and explains why, in her view, her
conduct was defensible. P. Br. at 2-4. The regulations explicitly preclude any collateral
attack on an underlying conviction.

When the exclusion is based on the existence of a criminal
conviction ... where the facts were adjudicated and a final
decision was made, the basis for the underlying conviction . .
. is not reviewable and the individual or entity may not
collaterally attack it either on substantive or procedural
grounds, in this appeal.
42 C.F.R. § 1001.2007(d); Donna Rogers, DAB No. 2381 at 4-5 (2011); Joann Fletcher
Cash, DAB No. 1725 (2000); Chander Kachoria, R.Ph., DAB No. 1380 at 8 (1993)
(“There is no reason to ‘unnecessarily encumber the exclusion process’ with efforts to
reexamine the fairness of state convictions.”); Young Moon, M.D., DAB CR 1572 (2007).

Petitioner also submits evidence attesting to her character and qualifications, and
discusses the impact the exclusion has on her ability to work in the healthcare field. P.
Br. at 1,4; see P. Exs. 2-15. Such arguments are not relevant. My authority is
constrained by the regulations, and I may not review the I.G.’s decision to impose a
mandatory exclusion “on the ground that the excluded person is a good person or well-
thought of in the profession or suffering from the loss of his/her vocation.” Donna
Rogers, DAB No. 2381 at 6.

Finally, an exclusion brought under section 1128(a)(1) must be for a minimum
period of five years, so the length of exclusion here is not reviewable. 42 C.F.R.
§ 1001.2007(a)(2).

Conclusion

Because she was convicted of a criminal offense related to the delivery of any item or
service under a state health care program (Medicaid), Petitioner Kuehn must be excluded
from participation in Medicare, Medicaid, and all federal health care programs for a
minimum period of five years.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Elizabeth Leen-Burns,
(NPI: 1871779561; PTAN: AQ882Z),
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-15-2091
Decision No. CR4211
Date: September 14, 2015
DECISION

Petitioner, Elizabeth Leen-Burns, does not meet the requirements of 42 C.F.R.
§ 410.75(b)' to enroll in Medicare as a nurse practitioner, and her enrollment is denied
pursuant to 42 C.F.R. § 424.530(a)(1).
I. Background
By letter dated January 8, 2015, First Coast Service Options, Inc., (First Coast), an
administrative contractor for the Centers for Medicare & Medicaid Services (CMS),
informed Petitioner’s employer that Petitioner’s Provider Transaction Access Number
(PTAN) was deactivated effective November 22, 2014. First Coast cited as a basis for
the action that Petitioner was “no longer assigned as Nurse Practitioner with Medicare.”

CMS Ex. 3 at 1. The letter advised that to obtain a new PTAN or to have her old PTAN
reinstated Petitioner had to complete a new enrollment application. Request for Hearing

' References are to the 2014 revision of the Code of Federal Regulations (C.F.R.), unless
otherwise stated.
(RFH) at 23; CMS Ex. 3 at 1. Petitioner requested reconsideration. On March 10, 2015,
First Coast concluded on reconsideration that while Petitioner “meets the requirements
or the State of Florida as a nurse practitioner she does not meet CMS qualifications for a
Nurse Practitioner that went into effect on January 1, 2009.” CMS Ex. | at 3. The
hearing officer cited 42 C.F.R. § 410.75(b). RFH at 7-21; CMS Ex. 12

Petitioner filed a request for hearing on April 16, 2015. On May 6, 2015, the case was
assigned to me, and I issued an Acknowledgment and Prehearing Order (Prehearing
Order). CMS filed a motion for summary judgment and brief, together with an exhibit

ist describing CMS Exhibits (Exs.) | through 6 on June 4, 2015. However, CMS failed
to file its six exhibits. CMS also did not file a certificate that its exhibits were served
upon Petitioner. Petitioner filed her response to CMS’s motion and her brief (P. Br.) with
Petitioner’s exhibits (P. Exs.) | through 4 on July 2, 2015. On August 19, 2015, CMS
iled another copy of its motion for summary judgment and brief, which appear to be
substantially similar to the documents previously filed. CMS also filed on August 19,
2015, CMS Exs. | through 6. CMS again failed to file a certificate of service for the
exhibits. Petitioner filed no objections to the late filing of the CMS exhibits or to the
admissibility of the exhibits. CMS failed to file a reply brief or a waiver of reply as
required by paragraph II.D.3 of the Prehearing Order. The parties have not objected to
my consideration of CMS Exs. | through 6 and P. Exs. | through 4, and they are admitted
as evidence.

II. Discussion
A. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the
supplementary medical insurance benefits program for the aged and disabled known as
Medicare Part B. Administration of the Part B program is through contractors such as
First Coast. Act § 1842(a) (42 U.S.C. § 1395u(a)). Payment under the program for
services rendered to Medicare-eligible beneficiaries may only be made to eligible
providers of services and suppliers. Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1)

> The hearing officer that conducted the reconsideration incorrectly characterizes the
agency action in this case as a deactivation of Petitioner’s billing privileges, which is
clearly in error. The evidence shows that this case involves the denial of Petitioner’s
attempt to re-enroll in Medicare not a deactivation of billing privileges. Deactivation of
billing privileges is not subject to review. 42 C.F.R. §§ 424.540, 424.545(b).

> A “supplier” furnishes services under Medicare, and the term supplier applies to
physicians and other non-physician practitioners and facilities that are not included
(Footnote continued next page.)
(42USC.§1

395u(h)(1)). The Act requires the Secretary of Health and Human Services

to issue regulations that establish a process for the enrollment of providers and suppliers,
including the right to a hearing and judicial review of certain enrollment determinations.

Act § 1866(j)

(42 USC. § 1395cc(j)).

Pursuant to 42 C.F.R. § 424.505, a supplier must be enrolled in the Medicare program to

be reimbursed
authorizes Me:
practitioner. 4

for services provided to Medicare beneficiaries. The Medicare program
dicare Part B payments for services provided by an enrolled nurse
2 C.F.R. § 410.20. A nurse practitioner must meet the following

requirements of 42 C.F.R. § 410.75(b) (the section cited by the hearing officer on

reconsideratio’

m) to enroll in Medicare and be granted billing privileges:

(b) Qualifications. For Medicare Part B coverage of his or

her services, a nurse practitioner must be a registered
professional nurse who is authorized by the State in which the

services are furnished to practice as a nurse practitioner in
accordance with State law, and must meet one of the

ollowing:

(1) Obtained Medicare billing privileges as a nurse

practitioner for the first time on or after January 1, 2003, and

meets the following requirements:

(i) Be certified as a nurse practitioner by a recognized
national certifying body that has established standards for
nurse practitioners.

(ii) Possess a master’s degree in nursing or a Doctor of
Nursing Practice (DNP) doctoral degree.

(2) Obtained Medicare billing privileges as a nurse
practitioner for the first time before January 1, 2003, and
meets the standards in paragraph (b)(1)(i) of this section.

(3) Obtained Medicare billing privileges as a nurse
practitioner for the first time before January 1, 2001.

(Footnote continued.)

within the definition of the phrase “provider of services.” Act §1861(d); (42

US.C. § 1395

x(d)).
A supplier’s enrollment is considered denied when a supplier is determined to be
“ineligible to receive Medicare billing privileges for Medicare-covered items or services
provided to Medicare beneficiaries” for one or more of the reasons listed in 42 C.F.R.

§ 424.530. 42 C.F.R. § 424.502. When a supplier’s enrollment application is denied, the
CMS contractor notifies the supplier in writing and explains the reasons for the
determination and provides information regarding the supplier’s right to appeal. 42
C.F.R. § 498.20(a). The supplier submits a written request for reconsideration to CMS or
its contractor. 42 C.F.R. § 498.22(a). CMS or its contractor must give notice of its
reconsidered determination to the supplier, giving the reasons for its determination and
specifying the conditions or requirements the supplier failed to meet, and the right to an
ALJ hearing. 42 C.F.R. § 498.25. If the decision on reconsideration is unfavorable to the
supplier, the supplier has a right to request a hearing by an ALJ and further review by the
Departmental Appeals Board (Board). Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42
CFR. §§ 424.545, 498.3(b)(17), 498.5. A hearing on the record, also known as an oral
hearing, is required under the Act. Crestview Parke Care Ctr. v. Thompson, 373 F.3d
743, 748-51 (6th Cir. 2004).

B. Issue

Whether there is a basis to deny Petitioner’s application to reenroll as a
Medicare supplier.

C. Finding of Fact, Conclusion of Law, and Analysis
1. Summary judgment is appropriate.

CMS requested summary judgment. Summary judgment is not automatic upon request
but is limited to certain specific conditions. The Secretary’s regulations that establish the
procedures to be followed in adjudicating Petitioner’s case are at 42 C.F.R. pt. 498. 42
C.F.R. § 424.545(a)(1). The regulations do not establish a summary judgment procedure
or recognize such a procedure. However, the Board has long accepted that summary
judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R.
pt. 498. See, e.g., Ill. Knights Templar Home, DAB No. 2274, at 3-4 (2009); Garden City
Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628, at 3
(1997). The Board recognizes that the Federal Rules of Civil Procedure (Fed. R. Civ.
Pro.) do not apply in administrative adjudications such as this, but the Board has accepted
that Fed. R. Civ. Pro. 56 and related cases provide useful guidance for determining
whether summary judgment is appropriate. Furthermore, a summary judgment procedure
was adopted as a matter of judicial economy within my authority to regulate the course of
the proceedings and made available to the parties in the litigation of this case by my

Prehearing Order dated May 6, 2015. The parties were given notice by the Prehearing
Order that summary judgment is an available procedural device and that the law as it has
developed related to Fed. R. Civ. Pro. 56 will be applied.

Summary judgment is appropriate when there is no genuine dispute as to any issue of
material fact for adjudication and/or the moving party is entitled to judgment as a matter
of law. In determining whether there are genuine issues of material fact for trial, the
reviewer must view the evidence in the light most favorable to the non-moving party,
drawing all reasonable inferences in that party’s favor. The party requesting summary
judgment bears the burden of showing that there are no genuine issues of material fact for
trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant
may not defeat an adequately supported summary judgment motion by relying upon the
denials in its pleadings or briefs but must furnish evidence of a dispute concerning a
material fact, i.e., a fact that would affect the outcome of the case if proven. Mission
Hospital Reg’l Med. Ctr., DAB No. 2459, at 4 (2012) (and cases cited therein); Experts
Are Us, Inc., DAB No. 2452, at 4 (2012) (and cases cited therein); Senior Rehab. &
Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (and cases cited therein); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The standard for deciding a
case on summary judgment and an ALJ’s decision-making in deciding a summary
judgment motion differs from resolving a case after a hearing. On summary judgment,
the ALJ does not make credibility determinations, weigh the evidence, or decide which
inferences to draw from the evidence, as would be done when finding facts after a
hearing on the record. Rather, on summary judgment the ALJ construes the evidence in a
light most favorable to the non-movant and avoids deciding which version of the facts is
more likely true. Holy Cross Vill. at Notre Dame, Inc, DAB No. 2291, at 5 (2009). The
Board also has recognized that on summary judgment it is appropriate for the ALJ to
consider whether a rational trier of fact could find that the parties’ evidence would be
sufficient to meet that party’s evidentiary burden. Dumas Nursing and Rehab., L-P.,
DAB No. 2347, at 5 (2010). The Secretary has not provided for the allocation of the
burden of persuasion or the quantum of evidence in 42 C.F R. pt. 498. However, the
Board has provided some persuasive analysis regarding the allocation of the burden of
persuasion in cases subject to 42 C.F.R. pt. 498. Batavia Nursing and Convalescent Ctr.,
DAB No. 1904 (2004), aff'd, Batavia Nursing & Convalescent Ctr. v. Thompson, 129
Fed. App’x 181 (6th Cir. 2005).

The material facts in this case, as discussed hereafter, are not disputed and there is no
genuine dispute as to any material fact that requires a trial. The issues in this case that
require resolution are issues of law related to the interpretation and application of the
regulations that govern enrollment in the Medicare program to the undisputed facts of
this case. I have assumed all pertinent facts alleged by Petitioner are true, drawn all
inferences in favor of Petitioner, and resolve this case as a matter of law against
Petitioner. Accordingly, summary judgment is appropriate in this case.

2 Petitioner did not meet the qualifications for Medicare Part B
coverage as a nurse practitioner under 42 C.F.R. § 410.75(b).

3. There is a basis for denial of Petitioner’s enrollment in Medicare
pursuant to 42 C.F.R. § 424.530(a)(1), because she did not meet the
requirements of 42 C.F.R. § 410.75(b).

For purposes of summary judgment I accept the following assertions of fact by
Petitioner drawing all inferences in her favor:

e Petitioner was granted enrollment in Medicare and billing privileges as a
nurse practitioner on about July 14, 2008.

e In October 2014, Petitioner was notified that she was required to submit a
reenrollment application to First Coast.

P. Br. at 1-2; CMS Ex. 2 at 1.

Petitioner submitted a CMS-855I as part of an enrollment revalidation project.
The CMS-855I was signed October 27, 2014, and postmarked October 29, 2014.
CMS Ex. 6 at 1,6, 31,45. Revalidation of enrollment is provided for by 42
CFR. § 424.515.* First Coast notified Petitioner by letter dated November 18,
2014, that it had received Petitioner’s Medicare enrollment application.
However, First Coast advised Petitioner that the application was incomplete,
missing information, or contained inaccurate information that had to be corrected
within 30 days. CMS Ex.5. Petitioner signed a second CMS-855I on December
22, 2014, to revalidate her enrollment in Medicare. CMS Ex. 4 at 4. Petitioner

* There is no evidence that Petitioner’s prior enrollment and billing privileges were
revoked. Rather, Petitioner’s CMS-855I submitted on October 29, 2014, in response to
the revalidation request was treated as a new application, and that application was
ultimately denied. Petitioner’s CMS-855I dated December 22, 2014, was also treated as
a new application that was denied. This procedure for processing a revalidation
application appears to be consistent with the regulations and is not challenged by
Petitioner. Even if this case had proceeded as a revocation of enrollment under 42 C.F.R.
§ 424.535(a)(1) for noncompliance with 42 C.F.R. § 410.75(b), the due process accorded
Petitioner and the resulting decision would have been no different.
attached to both of the CMS-855Is that she filed certifications from the
Dermatology Nursing Certification Board and the American Midwifery
Certification Board. CMS Ex. 4 at 32-33; CMS Ex. 6 at 39-40. Petitioner filed
certifications from the same boards as part of P. Ex. 30

The board certifications Petitioner submitted with her applications and presented
to me were not issued by organizations that are currently on the CMS list of
recognized certifying bodies for nurse practitioners. On August 17, 2007, CMS
issued a policy statement with respect to the Medicare program qualifications for
nurse practitioners under 42 C.F.R. § 410.75, specifying the organizations
recognized by CMS to be national certifying bodies for nurse practitioners at the
advanced practice level. Medicare Benefit Policy Manual, CMS Pub. 100-02,

§ 200.A (eff. Nov. 19, 2007) provides:

The following organizations are recognized national
certifying bodies for NPs [nurse practitioners] at the advanced
practice level:

e American Academy of Nurse Practitioners;

e American Nurses Credentialing Center;

e National Certification Corporation for Obstetric,
Gynecologic and Neonatal Nursing Specialties;

e Pediatric Nursing Certification Board (previously
named the National Certification Board of Pediatric
Nurse Practitioners and Nurses);

¢ Oncology Nurses Certification Corporation;

e AACN Certification Corporation; and

e National Board on Certification of Hospice and
Palliative Nurses.

Petitioner has not presented a board certification by one of the certifying
organizations on the foregoing list. Petitioner does not dispute that she does not
have a board certification from one of the certifying organizations on the CMS
list. Accordingly, I conclude as a matter of law that Petitioner does not meet the
requirements of 42 C.F.R. § 410.75(b)(1), as there is no dispute that she applied

> Petitioner uploaded her exhibits with her brief rather than as separate documents. Also,
Petitioner’s exhibits were not marked in accordance with the Civil Remedies Division
Procedures. Her exhibits were not excluded for either reason as there is little chance for
confusion with the current marking and location of the exhibits.
for billing privileges for the first time after January 1, 2003; and she does not
have the required certification from a CMS-recognized certifying body. Pursuant
to 42 C.F.R. § 424.530(a)(1), a supplier’s enrollment in the Medicare program
may be denied when at any time a supplier is found not to be in compliance with

Medicare enrollment requirements.

Petitioner does not deny any of the material facts. Rather, Petitioner raises an argument
that I construe to be in the nature of estoppel. Petitioner argues that she was permitted to

enroll in Medicare as a nurse practitioner in 2008 ev:

en though she was not certified by

any of the specified national certifying bodies. P. Brief at 1,4. Petitioner does not deny
that under the regulations, only a nurse practitioner who obtained Medicare billing
privileges prior to January 1, 2001, is excused from the requirement to be certified by a
national certifying body recognized by CMS. Petitioner also does not deny that there is
no evidence that she had Medicare Part B billing privileges prior to January 1, 2001.

There is no dispute that when initially enrolled in 20

08, Petitioner fit no exception to the

requirement for board certification by an organization on the CMS list. Petitioner does
not deny that she has never, from 2008 to the present, had a certification by one of the
recognized bodies. Nevertheless, Petitioner argues that CMS should be estopped from
denying her reenrollment because Petitioner was permitted to enroll in 2008 even though

she did not meet the necessary qualifications, and sh

e acted in reliance upon the CMS

action. Petitioner’s argument fails as a matter of law. ALJs and the Board are bound by
and may not ignore properly promulgated and applicable regulatory requirements. US
Ultrasound, DAB No. 2302, at 8 (2010) (“[nJeither the ALJ nor the Board is authorized
to provide equitable relief by reimbursing or enrolling a supplier who does not meet
statutory or regulatory requirements.”’). Furthermore, “the government cannot be

estopped absent, at minimum, a showing that the tra

itional requirements for estoppel are

present (i.e., a factual misrepresentation by the government, reasonable reliance on the

misrepresentation by the party seeking estoppel, and

harm or detriment to that party as a

result of the reliance) and that the government's employees or agents engaged in
‘affirmative misconduct.” Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 31
(2011), citing Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990), and Pacific

Islander Council of Leaders, DAB No. 2091 (2007)

at 12 (“[e]quitable estoppel does not

lie against the federal government, if indeed it is available at all, absent at least a showing
of affirmative misconduct.”). Here, Petitioner has not alleged or shown any affirmative

misconduct by an agent of the government upon whi

ich she reasonably relied and

estoppel, if available at all, does not apply in this case.

Accordingly, I conclude that Petitioner did not meet

the requirements to enroll in

Medicare as a nurse practitioner and there is a basis to deny her enrollment.
III. Conclusion

For the foregoing reason, Petitioner’s enrollment in Medicare as a nurse practitioner is
denied.

/s/
Keith W. Sickendick
Administrative Law Judge