Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Michelle Bott-Graham, IDOC #69420,
(O.L. File Number 9-09-40490-9),

Petitioner
Vv.
The Inspector General.
Docket No. C-10-841
Decision No. CR2306

Date: January 10, 2011

DECISION

Petitioner, Michelle Bott-Graham, is appealing a determination by the Inspector General
(LG.) to exclude her from participating in Medicare, Medicaid, and all federal health care
programs for a period of 30 years. For the reasons discussed below, I find that the I.G. is
authorized to exclude Petitioner pursuant to section 1128(a)(2) of the Social Security Act
(Act) and that the 30-year exclusion imposed by the I.G. against Petitioner is reasonable.

I. Procedural Background

By letter dated June 30, 2010, the I.G. notified Petitioner that she was being excluded
from participating in Medicare, Medicaid, and all federal health care programs for a
minimum period of 30 years. The LG. advised Petitioner that her exclusion was imposed
under section 1128(a)(2) of the Act and was due to her conviction in the District Court of
the Sixth Judicial District of the State of Idaho, in and for the County of Bannock (State
Court), of a criminal offense related to the neglect or abuse of patients in connection with
the delivery of a health care item or service. Although the minimum mandatory period of
exclusion is five years, the I.G. informed Petitioner that she was being excluded for 30
years due to the presence of aggravating factors under 42 C.F.R. § 1001.102. The I.G.
also informed Petitioner that due to the age of her conviction the L.G. did not establish an
exclusion period as long as the aggravating factors would otherwise support. Petitioner
requested a hearing pursuant to 42 C.F.R. § 1005.2 on July 7, 2010.

I held a pre-hearing conference by telephone on August 17, 2010. Petitioner, who is
currently incarcerated, appeared pro se. I informed Petitioner that she had the right to
retain counsel but that I could not appoint counsel for her. Petitioner did not retain
counsel during the course of this proceeding. I also informed Petitioner that based on my
review of the file it appeared likely that the issues in the case could be addressed in
summary fashion in the context of a motion for summary disposition. I informed the
parties that if any issues could not be resolved in summary fashion I would schedule an
evidentiary hearing to address them.

The L.G. filed a motion for summary disposition (I.G. Br.), accompanied by 17 exhibits
(LG. Exs. 1-17).' Petitioner filed an answer brief (P. Br.). The I.G. filed a reply (I.G.
Reply), and Petitioner filed a final response (P. Response), accompanied by two exhibits
(P. Exs. 1 and 2). I receive into evidence I.G. Exs. 1-17 and P. Exs. | and 2.

II. Issues

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

a. The LG. has a basis for excluding Petitioner from participating in Medicare,
Medicaid, and all other federal health care programs pursuant to section
1128(a)(2) of the Act; and

b. The length of the proposed period of exclusion is unreasonable.
III. Controlling Statutes and Regulations

Section 1128(a)(2) of the Act mandates that an individual or entity convicted of “a
criminal offense relating to the neglect or abuse of patients in connection with the
delivery of a health care item or service” be excluded from participating in federal health
care programs. Section 1128(c)(3)(B) requires that the minimum period of exclusion
under section 1128(a)(2) is five years. Aggravating factors may lengthen the period of
exclusion but mitigating factors can only be considered to shorten an exclusion when the

' The L.G. also filed a number of attachments (Attachments A-O, P.1-P.4, Q, R.1-R.4, and
S-X) consisting of copies of pertinent provisions of the Act and regulations and copies of
decisions. The I.G’s professionalism in making these things available to the incarcerated
Petitioner pro se is noted with appreciation. Although I note them here, they are not
exhibits in the case.
exclusion imposed is for a period longer than five years. 42 C.F.R. § 1001.102. Section
1128(i) of the Act considers an individual to have been convicted when: (1) a judgment
of conviction has been entered against the individual in a federal, state, or local court,
whether an appeal is pending or the record of the conviction has been expunged; (2) a
court finds an individual guilty; (3) a court accepts an individual’s plea of guilty or nolo
contendere (no contest); or (4) an individual has entered into an arrangement or program
where judgment of conviction is withheld. Act, section 1128(i)(1)-(4).

The regulations governing my resolution of this case, set forth at 42 C.F.R. Part 1005, do
not specify summary disposition procedures, but summary disposition is explicitly
authorized by the terms of 42 C.F.R. § 1005.4(b)(12), and this forum looks to Fed. R.
Civ. P. 56 for guidance in applying that regulation.

Summary disposition is appropriate in an exclusion case when there are no disputed
issues of material fact and when the undisputed facts, clear and not subject to conflicting
interpretation, demonstrate that one party is entitled to judgment as a matter of law.
Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994);
Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992);
Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No.
1125 (1990). All the facts and the inferences reasonably to be drawn from those facts
must be viewed in the light most favorable to the nonmoving party. See Pollock v.
American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3rd Cir. 1986); Brightview Care
Center, DAB No. 2132 (2007); Madison Health Care, Inc., DAB No. 1927, at 5-7
(2004). When the undisputed material facts of a case support summary disposition, there
is no need for a full evidentiary hearing, and neither party has the right to one. Surabhan
Ratanasen, M.D., DAB No. 1138 (1990); John W. Foderick, M.D., DAB No. 1125.

In opposing a properly-supported motion for summary disposition as described by Fed.
R. Civ. P. 56, the nonmoving party must show that there are material facts that remain in
dispute, and that those facts either affect the proponent’s prima facie case or might
establish a defense. Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. and
Medical Center, DAB No. 1628 (1997). It is insufficient for the nonmoving party to rely
upon mere allegations or denials to defeat the motion and proceed to hearing. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

IV. Discussion

My findings of fact and conclusions of law are set forth below in bold. My analysis
follows each finding and conclusion.

The essential elements necessary to support an exclusion based on section 1128(a)(2) of
the Act are: (1) the individual to be excluded must have been convicted of a criminal
offense; (2) the criminal offense must have been related to the neglect or abuse of a

patient; and (3) the patient neglect or abuse to which the individual’s criminal offense is
related must have occurred in connection with the delivery of a health care item or
service.

1. Petitioner was convicted of a criminal offense related to the neglect or
abuse of a patient in connection with the delivery of a health care item or
service.

a. Petitioner was convicted of a criminal offense.

The first essential element, the fact of Petitioner’s conviction, is conclusively established
by the records in evidence. On October 12, 2006, Petitioner entered a plea of guilty in
State Court to one count of Involuntary Manslaughter, IDAHO CODE ANN. §§ 18-4006(2)
and 18-4007(2) and one count of Injury to Child, IDAHO CODE ANN. § 18-1501(1), both
felonies. The Court accepted Petitioner’s guilty plea. IG. Exs. 1, 2. Petitioner’s guilty
plea and the Court’s acceptance of that plea constitute a judgment of conviction against
Petitioner and also constitute conviction of a criminal offense for purposes of the Act.
Act, section 1128(i)(1), (3). The Court sentenced Petitioner to a fixed ten-year period of
confinement for involuntary manslaughter and a fixed one-year period of confinement
with a subsequent indeterminate nine-year period of confinement for injury to a child, the
sentences to run consecutively. 1.G. Ex. 2.

Petitioner does not assert that she was not convicted of a criminal offense. She argues
only that she is appealing her conviction. Specifically, Petitioner argues that she is
appealing her conviction because she did not enter into her plea freely and voluntarily,
despite the questionnaire she answered before pleading guilty in which she stated that she
was entering her plea freely and voluntarily (CMS Ex. 1, at 1-2); because she was under
duress at the time she made her plea; because she received ineffective assistance of
counsel; because the charges against her were pressed in retaliation for legislation she
helped enact; and because previously-uninvestigated and mitigating evidence has come to
light. P. Br. at 3-4. Petitioner’s argument is unavailing. Petitioner’s appeal of her State
Court conviction does not negate the existence of her conviction. The Act provides that
when there has been a judgment of conviction an individual is considered to be convicted
“regardless of whether there is an appeal pending... .” Act, section 1128(i).
Furthermore, Petitioner’s arguments constitute a collateral attack on her conviction,
which I am precluded by law from considering. 42 C.F.R. § 1001.2007(d). If
Petitioner’s conviction is overturned on appeal the regulations provide for reinstatement.
42 CFR. § 1001.3005(a)(1).

b. Petitioner’s conviction was for a criminal offense relating to neglect
or abuse of a patient.
c. Petitioner’s conviction relating to neglect or abuse of a patient
occurred in connection with the delivery of a health care item or
service.

The second and third essential elements are established by the documents of record and
Petitioner’s admissions in her briefs.

Petitioner does not dispute that on November 29, 2005, she took a two-year-old autistic
child, CH, from his day-care center to her home. After she returned him to his day-care
center CH was found injured and unresponsive, was hospitalized, and died as a result of
his injuries. P. Br. at 2-3. Petitioner does not dispute that her convictions for Involuntary
Manslaughter and Injury to Child relate to her care of CH on that day. Instead, Petitioner
argues that her conviction was not related to the abuse or neglect of a patient and did not
occur in connection with the delivery of a health care item or service because CH was not
a patient and she was not providing health care services to him.

Petitioner was a professional counselor prior to voluntarily surrendering her license in
2003. At the time of the incident leading to her conviction Petitioner remained
unlicensed. In support of her argument that CH was not a patient, Petitioner asserts that
CH’s day-care center introduced CH’s mother to her and that CH’s mother asked her to
treat CH for behavioral problems. Petitioner states she informed CH’s mother that she
was unlicensed and unable to treat anyone. According to Petitioner, CH’s mother then
asked her to spend time babysitting CH and to suggest where the family could seek
treatment for CH’s behavioral problems. Petitioner states she agreed to babysit for CH
and encouraged CH’s mother to seek treatment for CH’s behavioral problems from a
qualified professional. During one of the babysitting sessions Petitioner admits CH
sustained “what appeared to be a minor bump to the head.” Petitioner states that CH fell
asleep several hours later and she returned him to his day-care center. She admits CH
later fell into a coma and was removed from life support at the urging of his parents. P.
Br. at 2-3.

Petitioner asserts that she has never had the opportunity to clarify the nature of the
relationship between herself, CH, and CH’s mother. Petitioner admits she has no
documentation to prove the relationship was not that of a provider of counseling services

* The record reflects that Petitioner voluntarily surrendered her professional counselor’s
license. As a result, on February 4, 2003, the Idaho State Licensing Board of
Professional Counselors and Marriage & Family Therapists (Idaho Board) indefinitely
suspended her license. I.G. Ex. 5, at 5. Petitioner admits that her license to practice as a
counselor and behavioral therapist was suspended in 2003 because of her addiction to
pain pills and narcotics following an injury, and admits that she did not hold such a
license in November 2005. P. Br. at 2.
and the patient or client of that provider because in the absence of a “client-provider”
relationship there would be no such documentation. P. Br. at 3. Petitioner argues that
three individuals referenced by the 1.G. who made statements during the investigation of
the incident that Petitioner was “working” with CH are wrong about the nature of her
relationship with CH. P. Response at 1. The individuals referenced by the I.G. are CH’s
mother (HF) and two employees of the day-care center (SB and BD). LG. Reply at 2-3;
1G. Ex. 6, at 1, 3; I.G. Ex. 7, at 3. Petitioner argues that CH’s mother HF had a vested
interest in falsely portraying such a relationship in order to pursue a civil damages case,
and that SB and BD made certain assumptions “‘in light of the situation, [CH’s]
behaviors, the Petitioner’s background and [HF’s] claims.” P. Response at 1. Petitioner
also argues that the I.G. should not have relied on the Idaho Board’s finding that CH was
her patient because the Board made incorrect assumptions that Petitioner has been unable
to challenge. P. Response at 1; I.G. Reply at 2-4, citing I.G. Ex. 5.

At first blush, Petitioner’s argument that the relationship between herself and CH did not
constitute a patient-or-client relationship might suggest the existence of a genuine dispute
as to a material fact, and that summary disposition is for that reason precluded on this
record. However, Petitioner’s mere denials or allegations of fact, in the complete absence
of supporting evidence, lead me to conclude that summary disposition is appropriate in
this case.

I find that CH was Petitioner’s patient or client. In deciding whether CH was Petitioner’s
patient or client, I may rely on evidence extrinsic to the court record of her conviction to
determine the circumstances of the underlying offense. Emem Dominic Ukpong, DAB
No. 2220 (2008). Specifically, here I rely on the Idaho Board’s findings regarding their
relationship, as the Board is in the best position to determine what constitutes practicing
as a licensed counselor in Idaho. In its April 3, 2008 Final Order revoking Petitioner’s
license as a professional counselor, the Idaho Board determined that Petitioner was
practicing counseling when CH was injured. LG. Exs. 4, 5. Petitioner did not contest the
Board’s action. Although Petitioner now argues that she did not have the resources to do
so, Petitioner is precluded from collaterally attacking the Board’s determination. 42
C.F.R. § 1001.2007(d). As Petitioner was practicing counseling, I also find that her
abuse of her patient CH occurred in connection with the delivery of a health care service.

2. The length of Petitioner’s exclusion is reasonable.

The I.G. determined that four aggravating factors exist in this case justifying the 30-year
period of exclusion imposed. They include that: (1) the acts resulting in Petitioner’s
conviction had a significant adverse physical impact on an individual, in that Petitioner’s
actions resulted in CH’s death; (2) her sentence included a lengthy period of
incarceration; (3) she had a prior administrative sanction record, in that in 2003 the Idaho
Board suspended her license as a professional counselor; and (4) the Idaho Board
revoked her license in 2008 based on her guilty plea for involuntary manslaughter, the
same offense which formed a basis for imposition of her exclusion. I.G. Ex. 15, at 2; 42
C.F.R. §§ 1001.102(b)(3), (5), (6), (9). I find each of these aggravating factors to exist.
Finding 1.

Petitioner argues that the 30-year length of her exclusion is unreasonable and that if I find
that the I.G. is authorized to exclude her I should not exclude her for any period greater
than ten years. Petitioner argues specifically that: (1) her conviction resulted from a
series of circumstances in which there was no “ill-will or intentional perpetration” and
that she is “regretful, sad and repentant” for failing CH; (2) her prior administrative
sanction record was due to her addiction to pain pills following injury from a physical
attack by a patient, not due to malfeasance, neglect or abuse of a client; (3) she has an
established record of providing valuable services to children with autism and their
families, and she has a highly effective subset of skills critical to the effective
intervention and positive prognosis of individuals with autism; (4) the Idaho Board action
revoking her license was based on incorrect assumptions and Petitioner did not have the
necessary resources to contest those assumptions’ and she has never been subject to any
other adverse action by a state regulatory agency for neglecting or abusing a client or
other person; (5) there was no financial loss to Medicare or any other federal, state or
local government program due to the acts resulting in her conviction; and (6) Petitioner is
attempting to persuade appropriate law enforcement officials to investigate additional
cases of fraud and abuse relating to the case. P. Br. at 1-2, 4-5; P. Response at 2.
Petitioner’s arguments are unavailing.

The regulations require that only certain factors may be considered to reduce an
exclusion imposed under section 1128(a)(2) of the Act to a period of not less than five
years where the exclusion imposed is for more than five years. These factors are found at
42 C.F.R. § 1001.102 and include where: (1) an individual is convicted of three or fewer
misdemeanor offenses and the resulting financial loss to Medicare or another federal,
state or local government health care program is less than $1,500 (42 C.F.R.

§ 1001.102(c)(1)); (2) the record in the criminal proceedings, including sentencing
documents, demonstrates that the individual had a mental, emotional or physical
condition before or during the commission of the offense that reduced the individual’s
culpability (42 C.F.R. § 1001.102(c)(2)); or (3) the individual’s cooperation with federal
or state officials resulted in others being convicted or excluded from Medicare, Medicaid
or another federal health care program; additional cases being investigated or reports
being issued by an appropriate law enforcement agency identifying program
vulnerabilities or weaknesses; or imposition against another individual of a civil money
penalty (42 C.F.R. § 1001.102(c)(3)(i)-(iii)).

> As discussed above, I do not address this issue as it is a collateral attack on the Idaho
Board proceeding. However, I note that despite Petitioner’s lack of resources she
managed to appeal her conviction in this forum.
Petitioner was convicted of felonies, not misdemeanors, and so whether there was a loss
to government health care programs is irrelevant, and Petitioner did not argue that the
State Court found she had a mental, emotional or physical condition which reduced her
culpability. Thus the mitigating factors at 42 C.F.R. § 1001.102(c)(1) and (2) do not
apply. Petitioner argues that she is attempting to persuade law enforcement officials to
investigate additional cases of fraud and abuse relating to the incident with CH, but she
does not assert that they would identify program vulnerabilities or weaknesses, and she is
unable to identify any of the results specifically required by the regulation. Thus the
mitigating factor at 42 C.F.R. § 1001.102(c)(3) does not apply. The other arguments she
makes in mitigation of her exclusion do not fall within the ambit of the factors I am
allowed to consider as mitigating factors.

I am left to consider whether the 30-year exclusion imposed is within a reasonable range
of exclusion. I accept Petitioner’s assertions that she is deeply sad and regretful for her
involvement in the tragedy of CH’s death. However, her actions caused the death of CH,
her patient and a two-year-old child, the most serious consequence of any abuse in
connection with a health care service. Her three consecutive sentences amount to a term
of confinement extending over two decades. Moreover, the Idaho Board has twice found
her untrustworthy to provide counseling services. Thus, although 30 years is a lengthy
exclusion, I do not find the 30-year exclusion imposed by the I.G. to be unreasonable.

V. Conclusion

For the reasons set forth above, the I.G.’s motion for summary disposition must be, and it
is, GRANTED. The LG. is authorized to exclude Petitioner for a period of 30 years
under section 1128(a)(2) of the Act.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Biniki Sherrail Dove,
Petitioner
Vv.
The Inspector General.
Docket No. C-10-919
Decision No. CR2304

Date: January 4, 2011

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Biniki
Sherrail Dove, from participating in Medicare and other federally funded health care
programs for a period of at least five years.

I. Background

The I.G. determined to exclude Petitioner from participating in Medicare and other
federally funded health care programs for at least five years, based on his determination
that Petitioner had been convicted of a criminal offense as is described at section
1128(a)(1) of the Social Security Act (Act). Petitioner requested a hearing, and the case
was assigned to me for a hearing and a decision.

I held a pre-hearing conference at which I ordered the parties to exchange briefs and all
proposed exhibits. On October 12, 2010, the I.G. submitted a brief and four proposed
exhibits, which are identified as I.G. Ex. | — LG. Ex. 4. Petitioner’s deadline for filing
her brief and proposed exhibits was November 22, 2010. Neither my office nor the office
of the I.G.’s counsel received an exchange from Petitioner. On December 1, 2010, Ms.
Debra Sapper, the staff attorney from the Departmental Appeals Board Civil Remedies
Division who is assigned to work with me on this case, called Petitioner and left a
message on her phone telling her that her pre-hearing exchange had not been received.
Ms. Sapper also e-mailed Petitioner on that same date with the identical message. On
December 2, 2010, Petitioner sent an e-mail to Ms. Sapper telling her that she had
delivered her pre-hearing exchange to the post office on November 10, 2010.

On December 2, 2010, Ms. Sapper sent an e-mail to Petitioner requesting that she fax her
exchange to the Civil Remedies Division by no later than December 6, 2010. On
December 7, 2010, Petitioner left a voice mail message on Ms. Sapper’s phone assuring
her that she’d faxed the exchange and asking that Ms. Sapper confirm its receipt.
However, no fax was received by the Civil Remedies Division. On December 8, 2010,
Ms. Sapper again called Petitioner and left a message on her phone telling her that the fax
had not been received. Ms. Sapper also sent Petitioner a confirming e-mail with the
identical message. Petitioner did not reply either to Ms. Sapper’s phone message or to
the e-mail.

On December 13, 2010, I sent an order to show cause to Petitioner, directing her either to
file an exchange by no later than December 22, 2010, or to explain why she had not done
so. Petitioner did not respond to the order to show cause. However, on December 14,
2010, Petitioner made two attempts to fax a document, or documents, to Ms. Sapper. The
faxes were not received, because Petitioner attempted to fax the documents to Ms.
Sapper’s direct line rather than to the Civil Remedies Division fax number. Petitioner
also sent an e-mail to Ms. Sapper in which she requested to speak with her about the
matter.

On December 14, 2010, Ms. Sapper sent an e-mail to Petitioner noting the fax attempts.
Ms. Sapper directed Petitioner to send her exchange to the Civil Remedies Division by
mail and strongly suggested that she do so immediately rather than wait until the deadline
of December 22.

Petitioner never responded to this e-mail. Neither the Civil Remedies Division nor I.G.’s
counsel has ever received a pre-hearing exchange from Petitioner.

I have given Petitioner multiple opportunities to file a pre-hearing exchange in this case,
and, despite that, Petitioner has not filed an exchange. My pre-hearing order was explicit,
and it directed Petitioner to mail an exchange to the Civil Remedies Division. | also sent
to Petitioner a copy of the Civil Remedies Division procedures, which detailed exactly
how Petitioner was to complete her exchange. On multiple occasions, Ms. Sapper
instructed Petitioner to file documents. Petitioner never complied with these instructions
and never responded to the order to show cause that I sent to her.

I could dismiss this case based on Petitioner’s failure to comply with my initial pre-
hearing order and with subsequent instructions. Instead, I am electing to issue a decision
on the merits, based on the unrebutted pre-hearing exchange filed by the LG. I receive
into evidence I.G. Ex. 1 —L.G. Ex. 4.

IL. Issues, Findings of Fact, and Conclusions of Law
A. Issues
The issues in this case are whether:

1. Petitioner was convicted of a criminal offense as is described at section
1128(a)(1) of the Act; and

2. An exclusion of at least five years is mandatory.
B. Findings of Fact and Conclusions of Law
I make the following findings of fact and conclusions of law.

1. Petitioner was convicted of a criminal offense as is described at
section 1128(a)(1) of the Act.

Section 1128(a)(1) of the Act mandates the exclusion of any individual who is convicted
of a criminal offense that is related to the delivery of an item or service under Medicare
or a State funded health care program (Medicaid). The evidence offered by the I.G.
proves that Petitioner was convicted of such an offense. Therefore, the I.G. must exclude
her.

On October 28, 2009, Petitioner pled guilty in Cumberland County District Court in the
State of North Carolina to two misdemeanor allegations of common law forgery and to
two misdemeanor allegations of attempted medical assistance provider fraud. I.G. Ex. 2
at 2, 4; LG. Ex. 3 at 2,4. These pleas were accepted by the court on that date. Id.

Specifically, Petitioner was charged with, and pled guilty to, forging the name of a
physician on documents that were filed with the North Carolina Medicaid plan. I.G. Ex.
2 at 1,3. These forgeries were committed for the purpose of causing false Medicaid
benefits payments to be made. I.G. Ex. 3, at 1, 3.

The crimes of which Petitioner was convicted clearly are crimes that are related to the
delivery of North Carolina Medicaid items or services. The intended victim of
Petitioner’s crimes was North Carolina’s Medicaid program. The attempted theft would
not have been possible, but for the existence of that program and the program’s
reimbursement of covered items and services. Consequently, Petitioner’s convictions are
for crimes within the reach of section 1128(a)(1) of the Act.

2, An exclusion of at least five years is required by law.

The I.G. excluded Petitioner for at least five years. That is the minimum period that must
be imposed against an individual who has been convicted of a crime that is described at
section 1128(a)(1) of the Act. Therefore, the exclusion that the I.G. imposed against
Petitioner is reasonable as a matter of law.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Jennifer L. DeFilippo
(OI File Number 2-10-40025-9),
Petitioner
Vv.
The Inspector General.
Docket No. C-10-898
Decision No. CR2302

Date: January 3, 2011

DECISION

Petitioner, Jennifer L. DeFilippo, is excluded from participating in Medicare, Medicaid,
and all federal health care programs pursuant to section 1128(b)(3) of the Social Security
Act (Act) (42 U.S.C. § 1320a-7(b)(3)), effective July 20, 2010. Petitioner is excluded for
a minimum period of three years.”

I. Background

The Inspector General (1.G.) notified Petitioner by letter dated June 30, 2010, that she
was being excluded from participating in Medicare, Medicaid, and all federal health care
programs for a minimum period of three years. The LG. advised Petitioner that she was
being excluded pursuant to section 1128(b)(3) of the Act based on her misdemeanor
conviction in the Johnstown Town Court of the State of New York, of a criminal offense

“ Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after
the period of exclusion expires. Reinstatement is not automatic upon completion of the
period of exclusion.
related to the unlawful manufacture, distribution, prescription, or dispensing of a
controlled substance as defined under federal or state law.

Petitioner timely requested a hearing by letter dated August 2, 2010. The case was
assigned to me for hearing and decision on August 13, 2010. A prehearing telephone
conference was convened on August 30, 2010, the substance of which is memorialized in
my Order issued on that date. During the prehearing conference the parties waived an
oral hearing and agreed that the case may be decided based on the parties’ briefs and
documentary evidence, and I set a briefing schedule.

The I.G. filed an opening brief (I.G. Br.) on September 29, 2010, with I.G. exhibits (LG.
Exs.) 1 through 9. Petitioner filed her brief (P. Br.) on October 25, 2010, with
Petitioner’s exhibits (P. Exs.) 1 through 7. The I.G. filed a reply brief on November 15,
2010 (I.G. Reply). No objection has been made to the admissibility of any of the
proffered exhibits. I.G. Exs. 1 through 9 and P. Exs. 1 through 7 are admitted.

II. Discussion
A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights to a
earing by an administrative law judge (ALJ) and judicial review of the final action of
the Secretary of Health and Human Services (the Secretary).

Pursuant to section 1128(b) (42 U.S.C. § 1320a-7(b)), the Secretary may exclude certain
individuals and entities from participation in the Medicare and Medicaid programs.
Section 1128(b)(3) of the Act permits the Secretary to exclude from participation any
individual convicted of a misdemeanor relating to the unlawful manufacture, distribution,
prescription, or dispensing of a controlled substance. Pursuant to section 1128(i) of the
Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when: (1) a
judgment of conviction has been entered against him or her in a federal, state, or local
court, whether an appeal is pending or the record of the conviction is expunged; (2) a
court finds guilt; (3) a court accepts a plea of guilty or no contest; or (4) the individual

‘as entered into any arrangement or program where judgment of conviction is withheld.

Section 1128(c)(3)(D) of the Act (42 U.S.C. § 1320a-7(c)(3)(D) provides that an
exclusion imposed under section 1128(b)(3) of the Act will be for three years, unless
aggravating or mitigating factors justify a longer or shorter period. The Secretary has
promulgated regulations listing the factors that may be considered for lengthening the
period of exclusion beyond three years or shortening the exclusion to less than three
years. 42 C.F.R. § 1001.401(c)(2) and (3).

The Secretary has established the following mitigating factors and provided that only
they may be considered for shortening the period of exclusion:

(i) The individual’s or entity’s cooperation with Federal or

State officials resulted in —
(A) Others being convicted or excluded from Medicare,
Medicaid and all other Federal health care programs.
(B) Additional cases being investigated or reports being
issued by the appropriate law enforcement agency
identifying program vulnerabilities or weaknesses, or
(C) The imposition of a civil money penalty against
others; or

(ii) Alternative sources of the type of health care items or

services furnished by the individual or entity are not

available.

42 C.F.R. § 1001.401(c)(3).
Petitioner bears the burden of going forward and the burden of persuasion with respect to
affirmative defenses and any mitigating circumstances. The I.G. bears the burden of
going forward and the burden of persuasion with respect to all other issues. 42 C.F.R. §
1005.15.
B. Issues

The Secretary has limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and

Whether the length of the period of exclusion is unreasonable.
42 C.F.R. § 1001.2007(a)(1).

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

My conclusions of law are set forth in bold followed by the pertinent findings of fact and
analysis.

1. Petitioner’s request for hearing was timely and I have jurisdiction.

2. There is a basis to exclude Petitioner pursuant to section 1128(b)(3)
of the Act.
3. Petitioner’s three-year exclusion is not unreasonable as a matter of
law.

Petitioner concedes that there is a basis for her exclusion pursuant to section 1128(b)(3)
of the Act. P. Br. at 2. Petitioner argues, however, that the period of her exclusion
should be less than three years based upon the presence of a mitigating factor.

Petitioner was licensed by the State of New York to practice as a registered physician
assistant in January 1998. P. Ex. 1, at 1. Petitioner does not dispute that on November
19, 2008, in the Johnstown Town Court, State of New York, she pled guilty to forgery in
the third degree. Petitioner was sentenced on March 3, 2009, to three years probation.
1.G. Ex. 4, at 1; 1G. Exs. 7, 8. Petitioner’s conviction was based on her providing a
forged prescription for Lortab to her patient, Melissa Gifford, in exchange for a portion of
the drug. P. Ex. 1, at 2. Petitioner asserts that she cooperated with the New York State
Bureau of Narcotics Enforcement and the New York State Police and that her
cooperation resulted in the arrest and conviction of Melissa Gifford, who was sentenced
to three years probation on September 8, 2008. P. Ex. 1, at 3; P. Br. at 3-4. The L.G. does
not deny that Melissa Gifford was convicted of criminal possession of a controlled
substance in the seventh degree or that she was sentenced to three years probation on
September 8, 2008. I.G. Ex. 4, at 1. The LG. argues, however, that Petitioner has not
established by a preponderance of the evidence that her cooperation resulted in Melissa
Gifford’s conviction. I.G. Reply at 3-4. I agree.

Exclusions imposed under section 1128(b)(3) of the Act are for three years unless
aggravating or mitigating factors justify a longer or shorter period. Petitioner has
conceded that there is a basis for her exclusion pursuant to section 1128(b)(3) of the Act.
Therefore, she must be excluded from participation in federal and state programs for a
minimum of three years, unless I can conclude that she has established by a
preponderance of the evidence that there is a mitigating factor under 42 C.F.R. §
1001.401(c)(3). Petitioner argues that she is entitled to consideration of the mitigating
factor established by 42 C.F.R. § 1001.401(c)(3)(i)(A), on the theory that her cooperation
led to the conviction of Melissa Gifford. P. Br. at 3-4.

Petitioner relies on her pre-sentence investigation report (I.G. Ex. 4) as evidence of the
existence of the mitigating factor. The report states the Petitioner was subject to a pre-
sentence investigation interview on December 18, 2008. The report states that Petitioner
was cooperative and summarizes the facts of Petitioner criminal conduct, apparently
based upon Petitioner’s statements during the interview. I.G. Ex. 4, at 2. The pre-
sentence investigation report also states that the investigating officer, Rick Boettcher, was
interviewed and he stated that Petitioner was cooperative “during the investigation,
giving a four-page statement.” I.G. Ex. 4, at 1-2. l infer that Investigator Boettcher was
referring to the investigation prior to Petitioner’s entry of a guilty plea on November 19,
2008 (I.G. Ex. 8) and her plea agreement that was accepted by the state on November 12,
2008 (I.G. Ex. 7). I conclude that the pre-sentence investigation report is not sufficient to
satisfy Petitioner’s burden to prove the existence of the mitigating factor. Petitioner’s
cooperation during the pre-sentence investigation interview on December 18, 2008 was
three months after Melissa Gifford’s conviction and sentencing on September 8, 2008
(LG. Ex. 4, at 1). Petitioner’s plea agreement was accepted by the state on November 12,
2008 and she pled guilty on November 19, 2008, both events two months after Gifford’s
conviction and sentencing. Furthermore, the pre-sentence report does not indicate when
she cooperated with Investigator Boettcher and gave her four-page statement; the report
does not state what if any information Petitioner gave Investigator Boettcher regarding
Gifford; and the report does not state that law enforcement authorities relied upon any
information that Petitioner provided in prosecuting and convicting Melissa Gifford.

Petitioner asserts in her affidavit that she offered her full cooperation with law
enforcement and that her cooperation and voluntary disclosure led to the arrest and
conviction of Melissa Gifford. P. Ex. 1, at 3. I have no doubt that Petitioner believes she
fully cooperated with law enforcement. However, Petitioner provides no detail as to
when she cooperated, what information was provided, or how she knows that law
enforcement relied upon or used the information she provided. I cannot infer, based upon
the evidence that I have, that Petitioner’s cooperation led to the arrest or conviction of
another.

I conclude that Petitioner has failed to establish by a preponderance of the evidence that
the mitigating factor under 42 C.F.R. § 1001.401(c)(3)(i)(A) is present in this case.

Petitioner also argues several facts that I have no authority to treat as grounds to mitigate
the period of exclusion in this case. Petitioner argues that she has been drug-free for 27
months; that she has taken responsibility for her actions by, among other things, attending
therapy sessions and AA meetings; and that she is fully compliant with all terms of her
probation. Petitioner also informs me that the New York Office of the Medicaid
Inspector General reduced her exclusion from that program to a censure. P. Br. at 4-5; P.
Exs. 1-7. It is laudable that Petitioner has taken responsibility for her actions and
remained drug-free and compliant with her probation, but her good conduct does not
constitute a mitigating factor under the regulations. Similarly, the New York Medicaid
Inspector General’s mitigation of Petitioner’s exclusion from Medicaid to a censure is
also not a mitigating factor recognized by the regulations.

Petitioner’s exclusion for three years is required by the Act as there are no mitigating
factors. Accordingly, Petitioner’s exclusion for three years is not unreasonable as a
matter of law.
II. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare,
Medicaid, and all federal health care programs for a minimum period of three years,
effective July 20, 2010.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
James Harrison Straub, Ed.D.
(NPI: 1821189507),
Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-1012
Decision No. CR2677

Date: December 21, 2012

DECISION

Wisconsin Physicians Service (WPS), an administrative contractor acting on behalf of the
Centers for Medicare and Medicaid Services (CMS), denied Petitioner’s application for
enrollment in the Medicare program because WPS determined that he did not qualify as a
clinical psychologist under 42 C.F.R. § 410.71(d). Petitioner appealed. For the reasons
stated below, I reverse CMS’s determination to deny Petitioner’s enrollment application.

I. Case Background and Procedural History

Petitioner, James Harrison Straub, Ed.D., completed and signed a Form CMS-8551
(Medicare Enrollment Application) on November 11, 2011, seeking revalidation of his
enrollment as a clinical psychologist. CMS Exhibits (Exs.) 1, 3, 4. Petitioner had been
an enrolled supplier in the Medicare program for decades and had received revalidation
in the past. CMS Ex. 11, at 1.

Petitioner earned a Doctor of Education (Ed.D.) in counseling and guidance from the
University of Arizona in May 1976. CMS Exs. 6, 7. Since 1978, Petitioner has been
licensed as a psychologist in the State of Missouri based on his Ed.D. degree. CMS Exs.
8; 11, at 1. He has taught in the counseling psychology department at the University of
Missouri, supervised graduate and resident psychologists, and teaches and consults in the
psychiatry department at the University of Missouri. Request for Hearing (RFH) at 1.

In a January 17, 2012 letter to Petitioner, WPS informed Petitioner that it received his
application to revalidate his enrollment in the Medicare program on December 6, 2011,
and requested that Petitioner provide additional information, including: the year of his
graduation; a copy of his official transcripts because his “Diploma does not state doctoral
degree in Psychology”; and a copy of his professional license for signature verification.
CMS Ex. 5, at 1. After Petitioner responded to WPS’s requests, on February 9, 2012,
WPS denied Petitioner’s application because Petitioner did not meet the qualification
requirements to enroll as a clinical psychologist under 42 C.F.R. § 410.71. CMS Ex. 10.
Petitioner timely requested reconsideration of WPS’s determination. CMS Ex. 11. On
May 8, 2012, WPS issued an unfavorable reconsidered determination concluding that:
“According to our records the transcripts indicates [sic] Doctoral of Education with a
major in counseling and guidance, which does not meet the requirement [doctoral degree
in psychology] listed in the regulation [42 C.F.R. § 410.71] above.” CMS Ex. 12, at 1.

Petitioner timely requested a hearing with the Departmental Appeals Board, Civil
Remedies Division. Following the issuance of my August 1, 2012 Acknowledgment and
Pre-hearing Order (Order), CMS filed a motion for summary judgment and supporting
memorandum (CMS Br.), a list of proposed exhibits, 13 proposed exhibits (CMS Exs. 1-
13), and a list proposing one witness. CMS mistakenly failed to file its sixth exhibit and I
gave CMS an opportunity to do so. Petitioner’s brief repeated his arguments from his
request for hearing and Petitioner enclosed a statement from two professors at the
University of Missouri. Because | interpreted the latter document as written direct
testimony, Petitioner resubmitted it at my request after the professors signed it under
penalty of perjury. That document was received in my office on December 4, 2012, and I
marked it as Petitioner’s Exhibit (P. Ex.) 1. Neither party has objected to any of the
exhibits offered; therefore, I admit CMS Exs. 1-13 and P. Ex. | into the record.

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 §f 8, 9, 11; Vandalia
Park, DAB No. 1940 (2004); Pacific Regency Arvin, DAB No. 1823, at 8 (2002)
(holding that the use of written direct testimony for witnesses is permissible so long as
the opposing party has the opportunity to cross-examine those witnesses). Although
CMS and Petitioner offered written direct testimony for its witnesses (CMS Ex. 13, P.
Ex. 1), neither CMS nor Petitioner requested to cross-examine those witnesses. See
Order § 10. Consequently, I will not hold an in-person hearing in this matter. See Kate
E. Paylo, D.O., DAB CR2232, at 9 (2010). Accordingly, the record is closed and I will
evaluate the documentary evidence admitted into the record. See Order {J 11, 12.
IL. Discussion

In order to participate in the Medicare program as a supplier,' individuals and entities
must meet certain criteria to enroll and receive billing privileges. 42 C.F.R. §§ 424.505,
424.510. A supplier who seeks to provide “qualified psychologist services” under the
Medicare program must be a “clinical psychologist,” as that term is defined by the
Secretary of Health and Human Services (Secretary). 42 U.S.C. § 1395x(ii); see also
42 U.S.C. § 1395u(b)(18)(C)(v). The Secretary’s regulations define a “clinical
psychologist” as an individual who:

(1) Holds a doctoral degree in psychology; and

(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, preventative,
and therapeutic services directly to individuals.

42 C.F.R. § 410.71(d).
A. Issue

The issue in this case is whether Petitioner satisfied the necessary requirements to enroll
in the Medicare program as a clinical psychologist under 42 C.F.R. § 410.71(d).

B. Findings of Fact, Conclusions of Law, and Analysis”
1. Petitioner holds a doctoral degree in counseling psychology.

Petitioner asserts that he holds an Ed.D. from the University of Arizona. RFH at 1; CMS
Ex. 7. CMS does not dispute that Petitioner holds an Ed.D. CMS Br. at 1. However,
CMS asserts that Petitioner does not have a doctoral degree in psychology. The primary
basis for this position is that Petitioner’s degree is in “counseling and guidance” and not
“psychology,” and that CMS must strictly apply the regulatory requirement that the
doctoral degree be in “psychology.” CMS Br. 1-2. CMS argues that it may not consider
whether a non-psychology degree is the functional equivalent of a psychology degree and
the fact that Petitioner has a state psychologist license cannot substitute for the doctoral
degree requirement. CMS Br. 2-3. CMS further asserts that the psychology department

' A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a
provider of services) that furnishes items or services.” 42 U.S.C. § 1395x(d).

> My findings of fact and conclusions of law are set forth in italics and bold font.
at the university that Petitioner attended had an American Psychological Association
(APA) accredited doctoral program and that Petitioner did not take any classes from that
program. CMS Br. 3-4. CMS stated: “‘it is difficult, if not impossible, on the basis of the
record in this case to engage in anything other than conjuncture as to whether a degree in
education with a major in counseling is but for a label a degree in psychology.” CMS Br.
at 4. CMS summed up its argument by stating that “self-regulatory oversight pertaining
to the standards of doctoral programs in the APA-credentialed psychology graduate
school programs is significant. CMS is entitled to rely on that oversight as a measure of
the doctoral graduates who ultimately provide services to Medicare beneficiaries. The
record contains nothing regarding whether such oversight exists with respect to graduate
programs in education.” CMS Br. at 5.

Although I agree with CMS that neither I nor CMS can engage in a functional
equivalency analysis of an applicant’s degree or license, Petitioner does not seek such an
analysis. An example of a functional equivalence argument appeared in a case in which
the petitioner attempted to use two different licenses in combination to show that she met
the psychology licensing requirement, neither one of which would fulfill the requirement
on their own. See Revathi Bingi, Ed.D, DAB CR1573, at 7-8 (2007). However,
Petitioner is not arguing that his doctoral degree is the functional equivalent to a doctoral
degree in psychology; rather, Petitioner is arguing that his degree is, using modern
terminology, a counseling psychology degree. RFH at 1.

I disagree with CMS that Petitioner has not proven that his doctoral degree, earned in the
1970s, is in fact a counseling psychology degree. CMS is to evaluate each applicant’s
doctoral degree on a “case-by-case basis.” 63 Fed. Reg. 20110, 20,116 (Apr. 23, 1998).
This is because, as the Secretary acknowledged when promulgating the final rule
concerning clinical psychologists, psychology degrees vary widely.

We realize that there are many psychologists who, although their doctoral
degree is labeled other than “clinical psychology,” graduated from
psychology programs that provided them with the appropriate knowledge,
training, and experience in clinical psychology. We are very concerned
that we not indirectly deny beneficiaries access to the care of qualified
psychologist services solely because the degree that a practitioner has
earned is labeled something other than “clinical psychology.” Based on
our carriers’ experience in interpreting the [clinical psychologist] definition
on a case-by-case basis, we do not agree with those commenters who
believe that removal of the existing requirement for a doctoral degree from
a program in “clinical psychology” presents a danger to the Medicare
population. . . . While we have made allowances for the types of
psychology programs that can qualify a practitioner under Medicare’s
[clinical psychology] benefit, we require that the individual’s doctoral
degree at least be from a program that is designated as a psychology
program. The [clinical psychologist] benefit was created as a discrete
benefit for psychologists, and not nonphysician practitioners who may
receive some Clinical training as part of their doctoral degree programs.
We believe that Congress would have to create a separate benefit to
recognize practitioners whose degrees are in a field other than psychology.

63 Fed. Reg. at 20,116 (emphases added).

In the present matter, WPS requested that Petitioner provide the transcript of his doctoral
studies (CMS Ex. 5, at 1) and, as testified to by the hearing officer who rendered the
reconsidered determination, reviewed “Petitioner’s academic transcript from the
University of Arizona setting forth courses taken and the award of a doctorate of
education with a major in counseling and guidance... .” CMS Ex. 13, at 2. However,
despite reviewing Petitioner’s transcript, the hearing officer denied Petitioner’s
reconsideration because the transcript did not expressly use the word “psychology.”

CMS Exs. 12, at 1; 13, at 2. Although, as quoted above, the Secretary indicated that the
doctoral degree be from a program designated as a psychology program, the hearing
officer failed to make the required case-by-case analysis to determine if, as a factual
issue, Petitioner’s doctoral program would be designated as a counseling psychology
program today. The Secretary made it clear in the quote above that the foremost issue
was to ensure that nonphysician practitioners who may only receive some clinical
training as part of their doctoral programs would not be enrolled as clinical psychologists.
63 Fed. Reg. at 20,116. There is no reason to assume that the Secretary meant to exclude
doctoral degrees that, for historical reasons, originally did include the word “psychology”
in them but later were updated to include that term. Therefore, the hearing officer should
ave considered the substance of Petitioner’s transcript and the statement of Petitioner’s
faculty advisor during his doctoral education, Philip J. Lauver, Ph.D.

Dr. Lauver is an associate professor emeritus from the University of Arizona, former
Chair of the Department of Counseling and Guidance at the University of Arizona, and
an Arizona licensed psychologist. CMS Ex. 11, at 4. Dr. Lauver stated, “that the
component track which [Petitioner] completed was in clinically applied counseling
psychology” and that the program “offered coursework, experimental training and
supervised experience in the clinical application of counseling/psychotherapy.” CMS Ex.
11, at 4. He further stated that graduates of the program have become licensed
psychologists in various states. CMS Ex. 11, at 4. A review of Petitioner’s transcript
supports Dr. Lauver’s statements because few of the classes Petitioner completed are
purely educational in nature. CMS Ex. 6.

I consider Dr. Lauver’s statement to be extremely important evidence of the program
from which Petitioner graduated. As Chair of the program and faculty advisor to
Petitioner, Dr. Lauver is in the best position to describe the nature of the degree program
Petitioner graduated from and the coursework Petitioner completed. While CMS and I

may not fully understand the import of the courses listed on Petitioner’s transcript, Dr.
Lauver does and I give significant weight to his assessment that Petitioner’s degree was
in “clinically applied counseling psychology.” CMS did not dispute Dr. Lauver’s
statement.

Dr. Lauver’s assessment of Petitioner’s degree is supported by testimony of Petitioner’s
witnesses. P. Ex. 1. Drs. Norm Gysbers and Joe Johnson are professors at the University
of Missouri, College of Education, Department of Educational, School, and Counseling
Psychology. The witnesses testified that in the 1970s, counseling programs that trained
psychologists were often located in a university’s “College of Education.” P. Ex. 1, at 1.
“Persons who trained in the counseling psychology track decades ago were in programs
with titles different today.” P. Ex. 1, at 1. This is because “[c]ounseling psychology
programs were typically in departments such as Counseling and Guidance and
Counseling and Personnel Services which often housed a variety of tracks. Thus degrees
often reflected the department and not the track.” P. Ex. 1, at 1. The witnesses
concluded that in evaluating who has clinical psychological training, “simply looking at
the department that offered the degree is not sufficient. Most state licensing boards
evaluate applicants for licensing to make sure they have at least the minimal training to
provide clinical work.” P. Ex. 1.

I assign significant weight to Drs. Gysbers’ and Johnson’s uncontroverted testimony.
CMS did not object to it or attempt to discredit it. Both individuals are professors at a
university program that is similar to the one from which Petitioner graduated. The
testimony is also consistent with Dr. Lauver’s statement. Therefore, based on this
testimony, Dr. Lauver’s statement, Petitioner’s transcript, and the evidence of record as a
whole, I find that Petitioner graduated from what today would be called a counseling
psychology program. I also find that Petitioner’s course of study was clinically based.
An Ed.D. from a counseling psychology program with sufficient clinical training meets
the degree requirement in section 410.71(d)(1). See Revathi Bingi, Ed.D., DAB CR1573,
at 5, 6 (finding that petitioner “held an Ed.D., a doctoral degree in educational
psychology (counseling), which she received in 1994” and noting that “CMS accepts that
Petitioner met the first requirement [i.e., doctoral degree in psychology] during the
relevant period and held an acceptable doctoral degree in psychology.”)

As indicated above, CMS argues that Petitioner’s doctoral program at the University of
Arizona was not APA accredited and that CMS is entitled to rely on the oversight of the
APA to ensure that psychology doctoral programs are sufficient. CMS Br. at 5.
However, CMS’s position is directly contradicted by the Secretary in the final rule
promulgating section 410.71(d). In response to public comments, the Secretary decided
to remove the requirement in the proposed rule that the doctoral degree be from an
accredited program and stated:
We have thoroughly examined the academic accreditation or approval
requirements imposed by the various States for licensure or certification of
psychologists. The wide degree of variation in the specifics of State
requirements makes creation of a uniform Federal standard infeasible. We
have concluded that reliance on State licensure or certification requirements
provides adequate assurance that an individual’s doctoral degree was
obtained from a program that met appropriate academic standards.

63 Fed. Reg. at 20,117. The Secretary expressly decided not to rely on the APA or other
accrediting bodies to determine whether a psychology program met “appropriate
academic standards.”* Therefore, CMS’s argument concerning accreditation is irrelevant.

2. Petitioner is licensed to independently practice psychology in the State
of Missouri, based on his doctoral degree, and may furnish
diagnostic, assessment, preventative, and therapeutic services directly
to individuals.

Petitioner asserts that he is “a licensed psychologist and licensed health services provider
in Missouri” and that he has been licensed based on his Ed.D. since 1978. RFH at 1, 4.
CMS Ex. 11, at 1. Petitioner provided CMS with a certificate from the State of Missouri
indicating that his psychology license is valid through January 31, 2014. CMS Ex. 11, at
5. Petitioner’s address is in Missouri. CMS Exs. 3, at 1;11, at 5. CMS does not dispute
that Petitioner is a licensed psychologist in the State of Missouri. CMS Br. at 3.

Missouri law limits the “practice of psychology” to persons who are licensed by the state.
Mo. Rev. Stat. § 337.015(1). The “practice of psychology” means:

the observation, description, evaluation, interpretation, treatment, and
modification of human behavior by the application of psychological
principles, methods, and procedures, for the purpose of preventing, treating,
or eliminating symptomatic, maladaptive, or undesired behavior and of

* Petitioner is licensed as a psychologist by the State of Missouri. CMS Ex. 8, at 1. State
law requires that for any applicant seeking a psychology license based on a degree
granted prior to August 28, 1990, such an applicant must submit satisfactory evidence
that “the applicant . . . received a doctoral degree, based upon a program of studies
from a recognized educational institution the contents of which were primarily
psychological, as defined by rule, and who has had at least one year of satisfactory
supervised professional experience in the general field of psychology as defined by
tule. Mo. Rev. Stat. §337.21(1)(1), (2)(1). The Missouri State Committee of
Psychology must have determined that Petitioner’s doctoral program was “primarily
psychological.” Such a determination would be consistent with the testimony of
Petitioner’s witnesses and Dr. Lauver’s statement.
enhancing interpersonal relationships, work and life adjustment, personal
effectiveness, behavioral health, and mental health. The practice of
psychology includes, but is not limited to, psychometric or psychological
testing and the evaluation or assessment of personal characteristics, such as
intelligence, personality, abilities, interests, aptitudes, and
neuropsychological functioning; counseling, psychoanalysis,
psychotherapy, hypnosis, biofeedback, and behavior analysis and therapy;
diagnosis and treatment of mental and emotional disorder or disability in
both inpatient and outpatient settings, alcoholism and substance abuse,
disorders of habit or conduct, as well as the psychological aspects of
physical illness, accident, injury, or disability; psychoeducational
evaluation, therapy, remediation, and consultation; and teaching and
training of psychological competence. Psychological services may be
rendered to individuals, families, groups, and the public. . . . The
application of these principles and methods includes, but is not restricted
to: diagnosis, prevention, treatment, and amelioration of adjustment
problems and emotional and mental disturbances of individuals and groups;
hypnosis; counseling; educational and vocational counseling; personnel
selection and management; the evaluation and planning for effective work
and learning situations; advertising and market research; and the resolution
of interpersonal and social conflicts.

Mo. Rey. Stat. § 337.015(3)-(4).

Because “the specific scope of practice as provided in state law is controlling as to who is
qualified to be a clinical psychologist under section 410.71(d)(2),” the state law quoted
above provides ample support to find that Petitioner is licensed to independently practice
psychology and furnish diagnostic, assessment, preventative, and therapeutic services
directly to individuals. See Paul L. Daniels, Psy.D., DAB CR2640, at 6 (2012).
Therefore, I conclude that Petitioner meets the qualification requirements specified in

42 CFR. § 410.71(d)(2).

3. Petitioner satisfies the requirements in 42 C.F.R. § 410.71(d) to enroll
in the Medicare program as a clinical psychologist.

Based on the foregoing, I find that Petitioner’s Ed.D. degree and Missouri issued
psychologist license satisfy the qualification requirements in section 410.71(d) to enroll
in the Medicare program as a clinical psychologist.
III. Conclusion

CMS’s determination denying Petitioner’s revalidation of enrollment in the Medicare
program as a clinical psychologist is hereby reversed. CMS shall enroll Petitioner as a
clinical psychologist and assign an appropriate effective date.

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Primary Care Redmond, PLLC
(NPI No. 279954521),

Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-922
Decision No. CR2675
Date: December 13, 2012

DECISION

The effective date of Medicare enrollment of Petitioner, Primary Care Redmond, PLLC,
is December 12, 2011, with billing privileges retroactive to November 12, 2011.

I. Background

Noridian Administrative Services, LLC (Noridian), a Medicare contractor for the Centers
for Medicare and Medicaid Services (CMS), notified Petitioner by letter dated February
2, 2012, that Petitioner’s Medicare enrollment application was approved with an effective
date of December 12, 2011.' CMS Exhibit (CMS Ex.) | at 9-10.

The Noridian form letter is confusing. In a box titled “Medicare Enrollment
Information” there is an entry for an “effective date” of 11/13/2011, but there is also an
entry that states Petitioner’s status was participating effective December 12, 2011. The
correct interpretation of the letter is that Noridian determined that Petitioner’s effective
date of enrollment was December 12, 2011 with billing privileges retroactive to
November 13, 2011. On April 18, 2012, Noridian sent Petitioner another notice
correcting the date for retroactive billing to November 12, 2011. CMS Ex. 2 at 1.
On February 14, 2012, Petitioner requested reconsideration of the initial decision arguing
that its effective date of Medicare enrollment should be changed to September 1, 2011.
CMS Ex. | at 4. On April 16, 2012, Noridian issued a reconsideration decision denying
Petitioner’s request for an earlier effective date for enrollment and billing privileges.
CMS Ex. | at 1-3.

Petitioner filed a request for hearing before an administrative law judge (ALJ) that was
received at the Civil Remedies Division of the Departmental Appeals Board on June 26,
2012. The case was assigned to me for hearing and decision and an Acknowledgment
and Prehearing Order (Prehearing Order) was issued on July 18, 2012. On August 17,
2012, CMS filed its prehearing brief and motion for summary judgment (CMS Br.) with
CMS Exs. | through 3. No objection has been raised to my consideration of CMS Exs. 1
through 3 and they are admitted as evidence. On September 17, 2012, Petitioner filed a
prehearing brief and response to CMS’s motion for summary judgment (P. Br.) with six
proposed exhibits marked CMS Ex. 4, CMS Ex. 5, TS (Transaction Summary) Ex. 6,
CMS Ex. 7, and Petitioner’s Attachments (P. Atts.) A, B, and C.? On October 1, 2012,
CMS filed a reply brief (CMS Reply). CMS objects to my consideration of Petitioner’s
proposed exhibits and argues that they should be excluded because they are new evidence
and Petitioner has not shown good cause for them being offered for the first time before
the ALJ, as required by 42 C.F.R. § 498.56(e). CMS Reply at 1,4. The Noridian
reconsideration decision states that “[a]ll documentation in the file for this case has been
reviewed.” CMS Ex. | at 2. Petitioner’s Attachment B, CMS Ex. 4, CMS Ex. 5, TS Ex.
6, and CMS Ex. 7 all appear on their face to be documents that should have been in the
file reviewed on reconsideration or otherwise in the government’s control. Accordingly,
P. Att. B, CMS Ex. 4, CMS Ex. 5, TS Ex. 6, and CMS Ex. 7 are admitted as evidence. P.
Atts. A and C, may be new documents, but more importantly they are not relevant
because they do not help me resolve any issue in dispute before me. To the extent
Attachments A and C have been offered as bearing upon Petitioner’s credibility,
Petitioner’s credibility is not in issue on summary judgment, and Attachments A and C
are not relevant for that reason. Petitioner’s Attachments A and C are not relevant and
not admitted as evidence.

~ Petitioner’s exhibits were not marked in accordance with my July 18, 2012 Prehearing
Order and the Civil Remedies Division Procedures (CRDP). Petitioner’s exhibits have
not been returned to Petitioner for correct marking as the exhibits are distinguishable
despite the incorrect marking.
IL. Discussion
A. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the
supplementary medical insurance benefits program for the aged and disabled known as
Medicare Part B. Payment under the program for services rendered to Medicare-eligible
beneficiaries may only be made to eligible providers of services and suppliers.’ Act

§§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).
Administration of the Part B program is through contractors. Act § 1842(a) (42 U.S.C.
§ 1395u(a)).

The Act requires that the Secretary of Health and Human Services (the Secretary) 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 U.S.C. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505,‘ a provider or
supplier must be enrolled in the Medicare program and be issued a billing number to have
billing privileges and to be eligible to receive payment for services rendered to a
Medicare eligible beneficiary. The effective date of enrollment in Medicare for
physicians, non-physician practitioners, and physician and non-physician practitioner
organizations, such as Petitioner, is governed by 42 C.F.R. § 424.520(d). The effective
date of enrollment for these suppliers may only be the later of two dates: the date when
the supplier filed an application for enrollment that was subsequently approved by a
Medicare contractor charged with reviewing the application on behalf of CMS; or the
date when the supplier first began providing services at a new practice location. 42
C.F.R. § 424.520(d). The date of filing of the enrollment application is the date when the
complete enrollment application and supporting documentation is received by the
designated Medicare contractor. 42 C.F.R. § 424.510(d)(1)-(3); 73 Fed. Reg. 69,726,

A “supplier” furnishes services under Medicare, and the term supplier applies to
physicians or other practitioners and facilities that are not included within the definition
of the phrase “provider of services.” Act § 1861(d) (42 U.S.C. § 1395x(d)). A “provider
of services,” commonly shortened to “provider,” includes hospitals, critical access
hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities,
home health agencies, hospice programs, and a fund as described in sections 1814(g) and
1835(e) of the Act. Act § 1861(u) (42 U.S.C. § 1395x(u)). The distinction between
providers and suppliers is important because they are treated differently under the Act for
some purposes.

* Citations are to the version of the Code of Federal Regulations (C.F.R.) in effect at the
time of Petitioner’s applications, unless otherwise indicated.
69,769 (Nov. 19, 2008) (date of filing is the date that the Medicare contractor receives a
signed provider enrollment application that the Medicare contractor is able to process to
approval). An enrolled supplier may bill Medicare for services provided to Medicare
eligible beneficiaries up to 30 days prior to the effective date of enrollment, if
circumstances precluded enrollment before the services were provided. Retroactive
billing for up to 90 days prior to the effective date of enrollment is permitted only in case
of a Presidentially-declared disaster pursuant to 42 U.S.C. §§ 5121-5206. 42 C.F.R.

§ 424.521.

B. Issues
Whether summary judgment is appropriate;

Whether CMS properly determined the effective date of Petitioner’s
Medicare enrollment and billing privileges.

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

My conclusions of law are set forth in bold text followed by my findings of fact and
analysis.

1. Summary judgment is appropriate.

A provider or supplier denied enrollment in Medicare or whose enrollment had been
revoked has a right to a hearing and judicial review pursuant to section 1866(h)(1) and (j)
of the Act and 42 C.F.R. §§ 424.454(a), 498.3(b)(1), (5), (6), (8), (15), (17), 498.5. A
hearing on the record, also known as an oral hearing, is required under the Act. Act

§§ 205(b), 1866 (h)(1) and (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743,
748-51 (6th Cir. 2004). A party may waive appearance at an oral hearing, but must do so
affirmatively in writing. 42 C.F.R. § 498.66. In this case, Petitioner has not waived the
right to oral hearing or otherwise consented to decision based only upon the documentary
evidence or pleadings. Accordingly, disposition on the written record alone is not
permissible, unless the CMS motion for summary judgment has merit.

Summary judgment is not automatic upon request but is limited to certain specific
conditions. The procedures established by 42 C.F.R. pt. 498 do not include a summary
judgment procedure. However, appellate panels of the Departmental Appeals Board (the
Board) have long recognized the availability of summary judgment cases subject to 42
C.F.R. pt. 498, and the Board’s interpretative rule has been recognized by the federal
courts. See, e.g., Crestview, 373 F.3d at 749-50. Furthermore, a summary judgment
procedure was adopted as a matter of judicial economy within my authority to regulate
the course of proceedings and made available to the parties in the litigation of this case by
my Prehearing Order.
Summary judgment is appropriate and no hearing is required where either: there are no
disputed issues of material fact and the only questions that must be decided involve
application of law to the undisputed facts; or, the moving party must prevail as a matter
of law even if all disputed facts are resolved in favor of the party against whom the
motion is made. The Board follows the general approach of the federal courts in
evaluating whether or not summary judgment in lieu of a hearing is appropriate. The
movant bears the initial burden of demonstrating that there are no genuine issues of
material fact for trial and that the movant is entitled to judgment as a matter of law.

When confronted with a properly supported motion for summary judgment, the
nonmoving party “may not rest upon the mere allegations or denials of his pleading, but
... must set forth specific facts showing that there is a genuine issue for trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’! Bank of Az. v. Cities
Serv. Co., 391 U.S. 253, 249 (1968)); see also Fed. R. Civ. P. 56(c); Venetian Gardens,
DAB No. 2286, at 10-11 (2009); I//. 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) (in-person hearing required where nonmovant shows there
are material facts in dispute that require testimony); Big Bend Hosp. Corp., d/b/a Big
Bend Hosp. Ctr., DAB No. 1814, at 13 (2002) (in some cases, any factual issue is
resolved on the face of the written record because the proffered testimony, even if
accepted as true, would not make a difference). In opposing the motion for summary
judgment, the nonmovant bears the burden of showing that there are material facts that
are disputed either affecting the movant’s prima facie case or that might establish a
defense. It is insufficient for the nonmovant to rely upon mere allegations or denials to
defeat the motion and proceed to hearing. The nonmovant must, by affidavits or other
evidence that sets forth specific facts, show that there is a genuine issue for trial. If the
nonmovant cannot show by some credible evidence that there exists some genuine issue
for trial, then summary judgment is appropriate and the movant prevails as a matter of
law. Anderson, 477 U.S. at 247. A test for whether an issue is regarded as genuine is if
“the evidence [as to that issue] is such that a reasonable jury could return a verdict for the
nonmoving party.” Jd. at 248. In evaluating whether there is a genuine issue as to a
material fact, an ALJ must view the facts and the inferences to be drawn from the facts in
the light most favorable to the nonmoving party. Pollock v. Am. Tel. & Tel. Long Lines,
794 F.2d 860, 864 (3rd Cir. 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 a
party’s evidence would be sufficient to meet that party’s evidentiary burden. Dumas
Nursing and Rehab., L.P., DAB No. 2347, at 5 (2010); Jl. Knights Templar Home, DAB
No. 2274, at 8.

The material facts in this case, as discussed hereafter, are not in dispute 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 and billing privileges in the Medicare program to the
undisputed facts of this case. The issues in this case must be resolved against Petitioner
as a matter of law. Accordingly, summary judgment is appropriate.

2. Pursuant to 42 C.F.R. § 424.520(d), Petitioner’s effective date of
Medicare enrollment was December 12, 2011, the date on which
Petitioner submitted an enrollment application that could be processed
to approval.

3. Pursuant to 42 C.F.R. § 424.521(a)(1), Petitioner was authorized to
bill Medicare for services provided to Medicare eligible beneficiaries
up to 30 days prior to Petitioner’s effective date of enrollment.

a. Facts
The facts are not disputed and any inferences are drawn in favor of Petitioner.

Petitioner is a clinic in Redmond, Washington owned and operated by two nurse
practioners. The clinic opened for patient visits on September 1, 2011. Hearing Request
(AR); P. Br. at 2; CMS Ex. | at 4. Petitioner attempted to apply for Medicare enrollment
in August of 2011, but was unable to complete the Medicare enrollment application. P.
Br. at 2. Petitioner sent a CMS Form 855S, an application to enroll in Medicare as a
supplier of durable medical equipment with documents dated October 31, 2011, to the
National Supplier Clearinghouse Palmetto GBA (Palmetto), which processes such
applications. CMS Ex. 4, at 1, 35, 48, 51; P. Br at 2; CMS Reply at 2. Palmetto notified
Petitioner by letter dated November 10, 2011, that Petitioner’s application to enroll as a
supplier of durable medical equipment was received, but the application could not be
processed because it could not be verified that the application fee had been paid. CMS
Ex. 5. Petitioner paid the $505 application fee; obtained proof of payment; and submitted
the proof of payment to Palmetto by facsimile on November 10, 2011. TS Ex. 6.
Palmetto advised Petitioner by letter dated November 15, 2011, that Petitioner’s
application to enroll as a durable medical equipment supplier could not be processed as
the application did not show that Petitioner met accreditation and surety bond
requirements. Palmetto directed that Petitioner submit a corrected application. CMS Ex.

7. Petitioner contacted Palmetto by telephone after receiving the November 15 Palmetto
letter and was told that the CMS Form 855B was the correct enrollment application for
Petitioner’s supplier type and also that Petitioner needed a National Provider Identifier
(NPI) number. P. Br. at 2-3. Petitioner mailed CMS Forms 855B and 855R° on
December 8, 2011 and they were received by Noridian, the Medicare Part B contractor,
on December 12, 2011. CMS Ex. 1 at 11-89; P. Br. at 3-4; CMS Br. at 2-3. Noridian
subsequently notified Petitioner that its Medicare enrollment applications were approved
with an effective date of December 12, 2011 and retroactive billing privileges to
November 12, 2011. CMS Ex. | at 5-10; CMS Ex. 2.

b. Analysis

Petitioner does not dispute that Noridian received Petitioner’s Medicare enrollment
application on December 12, 2011. P. Br. at 4. Petitioner also does not dispute that the
application received by Noridian on December 12, was the application that Noridian
subsequently approved. Therefore, pursuant to 42 C.F.R. § 424.520(d), the effective date
of Petitioner’s Medicare enrollment can be no earlier than December 12, 2011.
Furthermore, pursuant to 42 C.F.R. § 424.521(a)(1), Petitioner could not be authorized to
bill Medicare for services provided to Medicare eligible beneficiaries prior to November
12, 2011, 30 days prior to Petitioner’s effective date of enrollment.°

Petitioner argues that its effective date of enrollment should be either September 1, 2011
or October 31, 2011. I accept, based upon Petitioner’s representations, that September 1,
2011, was the date Petitioner began rendering services to Medicare beneficiaries.
Petitioner’s argument appears to be based upon the second clause of 42 C.F.R. §
424.520(d), i.e., “the date an enrolled physician or nonphysician practitioner first began
furnishing services at a new practice location.” However, Petitioner points to no facts
that would support a conclusion that Petitioner and its owner/operator nurse practitioners
were previously enrolled and had simply relocated to a new practice location. Even if I
accept for purposes of summary judgment that Petitioner and its owner operators were

> Petitioner submitted a Medicare enrollment application, CMS 855B, and CMS 588
EFT for group billing privileges to Noridian. Petitioner also submitted a CMS 855R,
Reassignment of Medicare Benefits, application for each of Petitioner’s two nurse
practitioners, Petitioner’s owners and operators. CMS Ex. 1. Petitioner received its NPI
on December 8, 2011. P. Att. B.

° Petitioner does not argue that there was any disaster declared by the President that
precluded enrollment, which might have justified retroactive billing for 90 days pursuant
to 42 C.F.R. § 424.521 (a)(2).
previously enrolled and moved to a new location, Petitioner’s argument overlooks that 42
C.F.R. § 424.520(d) provides that the effective date of enrollment in Medicare for
physicians, non-physician practitioners, and physician and non-physician practitioner
organizations, is the later of the two dates: the date when the supplier filed an
application for enrollment that was subsequently approved by a Medicare contractor
charged with reviewing the application on behalf of CMS; or the date when the supplier
first began providing services at a new practice location. 42 C.F.R. § 424.520(d). There
is no dispute that Petitioner submitted its applications after September 1, 2011. Petitioner
appears to recognize in its prehearing brief that the second clause of 42 C.F.R.

§ 424.520(d) simply has no application to this case. P. Br. at 5.

October 31, 2011, is the date Petitioner sent the incomplete application to be enrolled as a
durable medical equipment supplier to Palmetto. Petitioner argues that, although the
October 31, 2011 application was incomplete, the incorrect form, and never approved; an
application to enroll Petitioner was ultimately approved by Noridian and October 31,
2011 should be Petitioner’s effective date. HR; P. Br. Petitioner cites the decision of
another ALJ in Darryl Camp, M.D., and Darryl Camp, M.D., PA, DAB CR2342 (2011),
and the decision of the Board in Tri-Valley Family Medicine, Inc., DAB No. 2358 (2010)
in support of its argument. The facts in the Camp case are distinguishable from
Petitioner’s case. In the Camp case the ALJ found that Dr. Camp’s first application could
have been processed to approval with corrections. Camp at 8. The facts in the Tri-Valley
case are also distinguishable from Petitioner’s case because the Board found that the first
application filed could have been processed to approval with corrections. Tri-Valley at
1.” In Petitioner’s case the application to enroll as a supplier of durable medical
equipment was the wrong application, submitted to the wrong Medicare contractor, and
no amount of correction of that application could lead to Petitioner’s approval as a non-
physician’s practice organization.

Petitioner argues in its hearing request that it was difficult to locate information regarding
filing either on the internet or from other resources and the Medicare contractors were not
helpful. Petitioner also argues that its business has been adversely affected because it
cannot file claims with Medicare for services provided between September 1, 2011 and
November 12, 2011. Petitioner argues in its prehearing brief and response to the motion
for summary judgment that: Petitioner was initially misinformed about the need for a
NPI; the application to enroll as a supplier of durable medical equipment was submitted
due to a misunderstanding related to Petitioner providing prefabricated splints and
walking boots for management of acute injury and unclear information on the website;

The regulations applicable in the Tri-Valley case were also different than those
applicable in this case because 42 C.F.R. § 520(d) was not in effect when Tri-Valley filed
its initial application. Tri-Valley at 3, 6-7.
Petitioner had technical difficulties completing the initial application and Petitioner’s
staff was very busy serving patients so the application to enroll as a supplier of durable
medical equipment was not mailed until October 31, 2011; and Petitioner was not aware
until on about November 15, 2011 based on communication with Palmetto, that it had
filed the incorrect enrollment application. Even though I accept Petitioner’s assertions as
true for purposes of ruling on the motion for summary judgment, Petitioner’s arguments
are essentially equitable in nature and I have no authority to grant Petitioner relief on
equitable grounds. 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.”). Petitioner points to no source
of authority for me to grant it an exemption from regulatory compliance. Furthermore, I
am bound by the regulations and have no authority to declare statutes or regulations
invalid or ultra vires. 1866/CPayday.com, L.L.C., DAB No. 2289, at 14 (2009) (“[a]n
ALJ is bound by applicable laws and regulations and may not invalidate either a law or
regulation on any ground.”). Thus, I have no authority to change Petitioner’s Medicare
enrollment date based upon equitable considerations.

Petitioner’s arguments regarding erroneous advice from CMS employees and contractors
or the internet may be construed to be an estoppel argument against CMS. Estoppel
against the federal government, if available at all, is presumably unavailable absent
“affirmative misconduct,” such as fraud. See, e.g., Pacific Islander Council of Leaders,
DAB No. 2091, at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421
(1990). None of the circumstances Petitioner describes fit that standard or permit me to
ignore the requirements of the regulations governing Petitioner’s enrollment in Medicare.

Accordingly, I conclude that Petitioner’s effective date of Medicare enrollment was
December 12, 2011, the date on which Petitioner submitted an enrollment application that
could be processed to approval pursuant to 42 C.F.R. § 424.520(d). Pursuant to 42
C.F.R. § 424.521(a)(1), Petitioner was authorized to bill Medicare for services provided
to Medicare eligible beneficiaries up to 30 days prior to its effective date of enrollment,
i.e. November 12, 2011.

III. Conclusion

For the foregoing reasons, I conclude that Petitioner’s effective date of Medicare
enrollment was December 12, 2011, and that Petitioner could bill for service provided to
Medicare eligible beneficiaries for up to 30 days prior to Petitioner’s effective date.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Willow Tree Nursing Center,
(CCN: 055876),

Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-12-1250
ALJ Ruling No. 2013-2

Date: December 13, 2012

DISMISSAL

For the reasons set forth below, I conclude that Petitioner, Willow Tree Nursing Center,
is not entitled to Administrative Law Judge (ALJ) review of a determination made by the
Centers for Medicare & Medicaid Services (CMS) following a June 20, 2012 survey. I
therefore dismiss its hearing request pursuant to 42 C.F.R. § 498.70(b).

Discussion
Petitioner has no right to a hearing because CMS did not impose a remedy.’

Petitioner is a skilled nursing facility located in Oakland, California, that participates in
the Medicare program as a provider of services. On June 20, 2012, the California
Department of Public Health (State Agency) completed a survey of the facility and found
that it was not in substantial compliance with federal requirements. By letter dated July
10, 2012, the State Agency (as authorized by CMS) advised Petitioner that, based on the
survey findings, it would recommend that penalties be imposed unless the facility

' [make this one finding of fact/ conclusion of law.
achieved substantial compliance within three months of the last day of the survey (June
20, 2012). CMS Ex. 1.

On July 30, 2012, the State Agency revisited the facility, and determined that it had
corrected its deficiencies, so no penalties were imposed. CMS Ex. 3.

Nevertheless, on September 7, 2012, Petitioner requested a hearing to challenge the June
20 survey findings.

CMS now moves to dismiss Petitioner’s hearing request. Petitioner opposes.

The hearing rights of a long-term care facility are established by federal regulations at 42
C.F.R. Part 498. A provider dissatisfied with an initial determination is entitled to further
review, but administrative actions that are not initial determinations are not subject to
appeal. 42 C.F.R. § 498.3(a), (d). The regulations specify which actions are “initial
determinations” and set forth examples of actions that are not. A finding of
noncompliance that results in the imposition of a remedy specified in 42 C.F.R.

§ 488.406, “except the State monitoring remedy,” is an initial determination for which a
facility may request an ALJ hearing. 42 C.F.R. § 498.3(b)(13) (emphasis added). But a
facility has no right to a hearing unless CMS imposes one of the specified remedies.
Lutheran Home -- Caledonia, DAB No. 1753 (2000); Schowalter Villa, DAB No. 1688
(1999); Arcadia Acres, Inc., DAB No. 1607 (1997). The remedy, not the citation of a
deficiency, triggers the right to a hearing. Schowalter Villa; Arcadia Acres, Inc. Where
CMS withdraws the remedies or otherwise declines to impose one, Petitioner has no
hearing right. See, Fountain Lake Health & Rehabilitation, Inc., DAB No. 1985 (2005).

Petitioner concedes that CMS has not imposed any of the remedies specified in 42 C.F.R.
§ 488.406(a)(1) through (a)(8), but points out that § 488.406(a)(9) provides for
“alternative or additional State remedies approved by CMS.” Petitioner complains that,
as a result of the June survey findings (coupled with deficiency findings from earlier
surveys), it has been deemed a “special focus facility” and is subject to more frequent
surveys. P. Ex. 1, at 3. In Petitioner’s view, this designation subjects it to “an alternative
or additional State remed[y].” Petitioner’s argument fails because section 498.3(b)(13)
explicitly excludes the state monitoring remedy from those remedies that create a hearing
right. Under that section, a finding of noncompliance that results in the imposition of the
state monitoring remedy, but no other, is not an initial determination and not subject to
appeal. Fountain Lake Health & Rehabilitation, Inc. at 4.
Petitioner also raises Constitutional claims, which I have no authority to review.

Because CMS has imposed no remedies other than state monitoring, Petitioner has no
right to an ALJ hearing, and this matter must be dismissed. 42 C.F.R. § 498.70(b). I
therefore grant CMS’s motion.

/s/
Carolyn Cozad Hughes
Administrative Law Judge