Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Taos Living Center, (CCN: 32-5105), ) Date: March 9, 2009
)
Petitioner, )
) Docket Nos. C-08-667
-Vv.- ) C-08-76
) C-09-9
Centers for Medicare & Medicaid ) Decision No. CR1915
Services. )
)
DECISION

Petitioner, Taos Living Center, did not file a timely hearing request in response to a
March 19, 2008 notice letter regarding a survey ending on February 22, 2008. No good
cause exists to extend the deadline for filing a hearing request. The denial of payment for
new admissions (DPNA) from May 22 through August 13, 2008, is required by law.

And, summary disposition of this appeal in favor of CMS is appropriate.’

I. Background

Petitioner is a nursing facility participating in the Medicare and Medicaid programs. The
New Mexico Department of Health (NMDH) conducted a life safety code survey
concluding on February 20, 2008, and a health survey concluding on February 22, 2008,
to determine if Petitioner was in compliance with participation requirements. By letter
dated March 19, 2008, NMDH notified Petitioner that it was not in substantial
compliance with participation requirements. It forwarded the statements of deficiencies
delineating the requirements with which it had found Petitioner out of compliance and
noted that one isolated deficiency constituted actual harm not at the level of immediate

' Petitioner is also precluded from offering a nurse aide training or competency
evaluation program (NATCEP) for two years from May 22, 2008, due to the DPNA.
Social Security Act (Act), sections 1819(f)(2)(B) and 1919(f)(2)(B).
2

jeopardy, at 42 C.F.R. § 483.25(c) under Quality of Care - Pressure Ulcers (Tag F 314).
While the letter reflected that NUDH was recommending remedies to CMS based on
Petitioner’s noncompliance — remedies that CMS would evaluate and decide whether to
impose — the letter also reflected that NMDH itself was authorized to and was imposing
a DPNA, stating that:

Denial of Payment for New Admissions

Based on deficiencies cited during these surveys and as authorized by CMS
Dallas Regional Office we are giving formal notice of imposition of statutory
Denial of Payment for New Admissions (DPNA) effective May 22, 2008. This
remedy will be effectuated on the stated date unless you demonstrate substantial
compliance with an acceptable PoC and subsequent revisit. This notice in no way

limits the prerogative of CMS to impose discretionary DPNA at any appropriate
time.

CMS Ex. 1, at 2 (emphasis added).

NMDH specifically informed Petitioner that substantial compliance would be
demonstrated by an acceptable plan of care verified by a revisit. NMDH also specifically
informed Petitioner of its appeal rights based on the March 19, 2008 notice:

Appeal Rights

If you disagree with the determination of noncompliance, you or your legal
representative may request a hearing before an administrative law judge of the
Department of Health and Human Services, Departmental Appeals Board.
Procedures governing this process are set out in 42 C.F.R. §§ 498.40, et. seq. You
may appeal the finding of noncompliance that led to an enforcement action, but not
the enforcement action or remedy itself. A written request for hearing must be
filed no later than 60 days from receipt of the notice.

The March 19, 2008 notice then went on to explain to Petitioner where any potential
hearing request should be sent. CMS Ex. 1, at 3. There is no dispute that Petitioner did
not request a hearing and did not seek an extension of time to request such a hearing
within the 60 allotted days. Petitioner submitted a plan of correction on or about March
26, 2008, asserting correction of the deficiencies as of March 28, 2008. CMS Ex. 6, at 1.
The plan of correction was approved by NMDH, but the revisit survey to verify the plan

> The statement of deficiencies, dated February 22, 2008, reflects that following
the recertification survey NMDH found deficiencies at 42 C.F.R. §§ 483.13(a) under
Resident behavior and facility practices; 483.20(d) and .20(k)(1) and .20(1)(3) under
Resident assessment; 483.25(c) and .25(e)(2) and .25(f)(2) and .25(1) under Quality of
care; 483.40(c)(1)-(2) under Physician services; and 483.75(e)(8) and .75(1)(1) under
Administration. CMS Exhibit (Ex.) 7.
3

of correction did not take place until August 14, 2008. The DPNA went into effect on
May 22, 2008.

On May 29, 2008, NMDH returned to Petitioner’s facility and conducted a complaint
survey, which found noncompliance. NMDH sent a second notice letter on June 13,
2008, informing Petitioner of its noncompliance. With regard to recommended remedies,
it informed Petitioner that based on the February surveys and May 29, 2008 deficiency
findings, NMDH was “recommending” to CMS that Petitioner’s provider agreement be
terminated on July 22, 2008. However, the NMDH letter of June 13, 2008 stated:

Based on deficiencies cited during the Recertification and Complaint surveys, and
as authorized by CMS Dallas Regional Office, imposition of statutory Denial of
Payment for New Admissions (DPNA) effective May 22, 2008 remains in effect.
This remedy will remain in effect until Taos Living Center demonstrates
substantial compliance with an acceptable PoC and subsequent revisit, or your
provider agreement is terminated .... Please note that the remedies for this
Complaint survey are a continuation of an enforcement action that began
with the Recertification survey conducted on February 20 and 22, 2008....
Loss of DPNA will also result in the inability of Taos Living Center to become
eligible to participate in the Nurse Aide Training and Competency Evaluation
Program (NATCEP). This prohibition will be effective for a two (2) year period
beginning May 22, 2008 through May 21, 2010.

Appeal rights were again explained to Petitioner for the citations for noncompliance
identified in the June 13, 2008 letter. Petitioner appealed the noncompliance identified in
the June 13, 2008 letter (from the May 29, 2008 survey) and the case was docketed as
Docket No. C-08-667 and assigned to me for hearing and decision.

By letter dated June 26, 2008, NMDH recommended that the remedy of termination of
Petitioner’s provider agreement, scheduled for July 22, 2008, be extended to August 22,
2008, in order to afford Petitioner additional time to achieve substantial compliance and
avoid termination. CMS Ex. 2.

On July 10, 2008, NMDH conducted yet another complaint survey and again found
noncompliance. By letter dated July 28, 2008, NMDH notified Petitioner that it had been
found out of substantial compliance with participation requirements. The agency also
notified Petitioner that it was recommending to CMS that a civil money penalty (CMP) be
imposed and that Petitioner’s provider agreement be terminated if correction was not
made prior to August 10, 2008. The NMDH letter of July 28, 2008 also stated that:

Denial of Payment for New Admissions became effective on May 22, 2008 and
will remain in effect until compliance has been attained or Termination of Provider
Agreement has occurred .... Please note that the remedies for this Complaint
4

survey are a continuation of an enforcement action that began with a previous
surveys [sic] conducted on February 20 and 22, 2008; and a Complaint survey
conducted on 5/29/08 .. .. Loss of DPNA resulted in the inability of Taos Living
Center to be eligible to participate in the Nurse Aide Training and Competency
Evaluation Program (NATCEP). This prohibition is effective for a two (2) year
period beginning May 22, 2008 through May 21, 2010.

Its appeal rights were explained to Petitioner, and Petitioner appealed the noncompliance
identified in the July 28, 2008 letter (from the July 10, 2008 survey); the case was
docketed as Docket No. C-08-761 and assigned to me for hearing and decision.

On August 5, 2008, CMS sent a notice letter to Petitioner. It referred to NUDH’s
February 20 and 22, May 29, and July 10, 2008 surveys and stated that the surveys had
found Petitioner not in substantial compliance with participation requirements. It
announced that CMS concurred with the state survey agency’s findings and that
Petitioner’s Medicare agreement would terminate as of August 22, 2008, unless Petitioner
achieved substantial compliance, informed Petitioner that CMS had imposed per-instance
CMPs, and then stated that:

DENIAL OF PAYMENT FOR NEW ADMISSIONS: Payment will be denied
for all new Medicare and Medicaid admissions, effective May 22, 2008.

Under CMS’s authority, the State Agency had sent you notice of this imposition in
their March 19, 2008 notice letter. Your intermediary will be notified via copy of
this letter. This denial of payment will continue until your facility achieves
substantial compliance or your provider agreement is terminated, whichever
comes first.

CMS then notified Petitioner that sections 1819(f)(2)(B) and 1919(f)(2)(B) of the Act
require a facility to lose NATCEP if it is subject toa DPNA. Petitioner was told if it
disagreed “with the determination of noncompliance (and/or substandard quality of
care, if applicable)” Petitioner could request a hearing.

By letter dated September 9, 2008, NMDH notified Petitioner that it was found in
substantial compliance based on a health revisit conducted on August 14, 2008. CMS
Ex. 3.

By letter dated October 3, 2008, Petitioner appealed the August 5, 2008 notice letter, the
case was docketed as Docket No. C-09-9, and the case was assigned to me for hearing
and decision.

By letter dated October 23, 2008, CMS notified Petitioner that because it had achieved
substantial compliance, CMS was rescinding the termination remedy and the per-instance
CMP, but that the DPNA “ALREADY IMPOSED AND IN EFFECT from May 22,
5

2008 through August 13, 2008” concluded as of August 13, 2008, and, thus, was not
rescinded. CMS Ex. 4.

I consolidated the three cases for hearing on October 10, 2008, under Docket No. C-08-
667. On November 5, 2008, CMS submitted its Motion for Summary Disposition (CMS
Br.) accompanied by seven exhibits (CMS Exs. 1-7). Petitioner submitted its Response
on November 25, 2008 (P. Br.), accompanied by two exhibits (P. Exs. A and B). CMS
submitted its Motion for Leave to File a Reply Brief on December 15, 2008, accompanied
by its Reply Brief (CMS Reply), which I accepted. Petitioner submitted its Sur-Reply (P.
Reply) on January 6, 2009. In the absence of objection, I admit all exhibits submitted by
the parties.*

II. Issues
A. Is summary disposition appropriate?

B. Is Petitioner entitled to a hearing as to whether it was in substantial compliance
during the February surveys?

C. Is Petitioner entitled to a hearing with regard to the date on which it achieved
substantial compliance?

D. Is the DPNA effective May 22, 2008 required by law?
Ill. Legal Background

The Act sets forth requirements for long-term care facilities participating in the Medicare
and Medicaid programs and authorizes the Secretary of Health and Human Services
(Secretary) to promulgate regulations implementing the statutory provisions. Act,
sections 1819 and 1919.

Long-term care facilities participating in Medicare and Medicaid are subject to the survey
and enforcement procedures set out in 42 C.F.R. Part 488, subpart E, to determine if they
are in substantial compliance with applicable participation requirements at 42 C.F.R. Part
483, subpart B. “Substantial compliance” means a level of compliance with participation

* T also note that where I refer to a letter from NMDH or CMS that was not filed as
an exhibit, the letter is in the record as an attachment to Petitioner’s hearing request.
Specifically, the June 13, 2008 notice letter was attached to Petitioner’s August 12, 2008
hearing request; the July 28, 2008 notice letter was attached to Petitioner’s September 26,
2008 hearing request; and the August 5, 2008 notice letter was attached to Petitioner’s
October 3, 2008 hearing request.
6

requirements such that “any identified deficiencies pose no greater risk to resident health
or safety than the potential for causing minimal harm.” 42 C.F.R. § 488.301.
“Noncompliance,” is defined as “any deficiency that causes a facility to not be in
substantial compliance.” Jd.

When a facility is found not to be in substantial compliance the facility is subject to
various enforcement remedies. Section 1819(h)(2)(D) of the Act requires the Secretary of
Health and Human Services to impose a DPNA if a facility has not complied with
participation requirements “within 3 months after the date the facility is found to be out of
compliance with such requirements[.]” Regulations implementing this statutory provision
at 42 C.F.R. § 488.417(b)(1) require that a DPNA be imposed if a facility does not
achieve substantial compliance within three months of the survey identifying
noncompliance. Payments to a facility “resume prospectively on the date that the facility
achieves substantial compliance, as indicated by a revisit or written credible evidence
acceptable to CMS (under Medicare) or the State (under Medicaid).” 42 C.F.R.

§ 488.417(d).

For a facility to be entitled to a hearing, the noncompliance must constitute an initial
determination as set out at 42 C.F.R. § 498.3. The regulations require that a facility file a
hearing request “in writing within 60 days from receipt of the notice of initial,
reconsidered or revised determination unless that period is extended in accordance with
paragraph (c) of this section.” 42 C.F.R. § 498.40(a)(2). Ifa facility fails to appeal an
initial determination, that determination becomes administratively final and binding. 42
C.F.R. § 498.20(b). An administrative law judge (ALJ) may extend the period of time for
filing a hearing request for “good cause.” 42 C.F.R. § 498.40(c). “Good cause” has been
defined as circumstances beyond the ability of a party to control. Hillcrest Healthcare,
L.L.C., DAB No. 1879 (2003); Glen Rose Medical Center Nursing Home, DAB No. 1852
(2002); Hospicio San Martin, DAB No. 1554 (1996). “Good cause” has not been found
where a party chose not to request an extension. Jn the Cases of: Hammonds Lane
Center, Spa Creek Center, Rose View Center, and Salisbury Center, DAB No. 1853
(2002).

Except in a situation where a state is taking action against a non-state operated nursing
facility, either CMS or a state (as authorized by CMS) may give notice of a remedy,
including: the nature of the noncompliance; the remedy imposed; the effective date of the
remedy; and the right to appeal the determination leading to the remedy. 42 C.F.R.

§ 488.402(f)(1). Thus, a state has the authority to impose any remedy CMS has the
authority to impose, as directed by CMS. Medicare and Medicaid Programs; Civil
Money Penalties for Nursing Homes (SNF/NF), Change in Notice Requirements, and
Expansion of Discretionary Remedy Delegation, 64 Fed. Reg. 13354 (March 18, 1999).
7

IV. Findings of Fact, Conclusions of Law and Discussion‘
A, Summary disposition is appropriate.

CMS is entitled to summary disposition if, after I have viewed all evidence in the light
most favorable to Petitioner, and have viewed all inferences reasonably to be drawn from
that evidence most favorably to Petitioner, I find CMS has made a prima facie showing
that Petitioner was not in substantial compliance with participation requirements, that
there is no dispute about any material fact supporting CMS’s case, and that CMS is
otherwise entitled to judgment as a matter of law. Brightview Care Center, DAB No.
2132 (2007); Madison Health Care, Inc., DAB No. 1927, at 5-7 (2004). 42 C.F.R. Part
498 does not specify detailed summary disposition procedures, but this forum looks to
FED. R. CIV. P. 56 for guidance in applying those procedures in the context of the
regulations; see, e.g., Matsushita Elec. Industrial Co. v. Zenith Radio, 474 U.S. 574, 587
(1986); Alden-Princeton Rehabilitation and Health Care Center, DAB No. 1978, at 5,
n.1 (2005). As explained below, in light of Petitioner’s failure to timely request a hearing
with regard to the deficiencies cited in the March 19, 2008 notice letter, and that
Petitioner was not found to be in substantial compliance until after May 22, 2008, the
DPNA imposed is required by law and summary disposition in favor of CMS is
warranted.

B. Petitioner is not entitled to a hearing with regard to the February surveys.

Petitioner asserts that the March 19, 2008 letter is not a “Determination Letter.” P. Br. at
6. Petitioner argues that the letter was not sent to Petitioner by CMS and thus did not
comport with the express requirements of 42 C.F.R. § 498.20(a), which reflects that CMS
or the OIG, as appropriate, mail notice of an initial determination to an affected party,
setting forth the basis for the determination, the effect of the determination, and the
parties right to reconsideration or hearing. Petitioner asserts the March 19 letter did not
set forth with specificity the required findings of noncompliance and only refers to the
statement of deficiencies. And, argues Petitioner, the letter fails to set forth a
determination of noncompliance, stating instead that it was a finding of noncompliance
and a recommendation by NMDH, the state survey agency.

Petitioner also asserts that even if I determine that the March 19, 2008 letter constitutes an
initial determination, it was expressly revised and replaced by the August 5, 2008 letter
from CMS, which expressly permitted Petitioner to request a hearing on the
determinations of noncompliance and propriety of remedies involved within 60 days of
August 5, 2008. Moreover, Petitioner asserts that the express terms of the August 5, 2008
letter constitute an extension of any deadline to request a hearing until October 3, 2008,

4 My findings of fact and conclusions of law are shown as topic headings below.
Each finding is shown in bold and italics.
8

and Petitioner argues that I should conclude that the August 5, 2008 letter constitutes just
cause to extend the deadline for filing a hearing request related to the March 19, 2008
letter. P. Br. at 6-10. However forcefully presented, Petitioner’s arguments are
unavailing.

The regulations expressly permit a state survey agency such as NMDH to send notice
letters and impose remedies, including a DPNA. 42 C.F.R. § 488.402(f)(1); see 42 C.F.R.
§§ 488.330(a)(1)(i)(C); 488.330(a)(1)(i)(A); Medicare and Medicaid Programs; Civil
Money Penalties for Nursing Homes (SNF/NF), Change in Notice Requirements and
Expansion of Discretionary Remedy Delegation, 4 Fed. Reg. 13354 (March 18, 1999).
Petitioner’s interpretation of the express language of the March 19, 2008 letter is not
reasonable. The March 19, 2008 letter stated explicitly that it was giving formal notice of
the imposition of the DPNA, effective May 22, 2008, “as authorized by CMS” and
“[b]ased on deficiencies cited” during the February surveys. CMS Ex. 1, at 2. Moreover,
the March 19, 2008 letter, by referring back to the statement of deficiencies and the
deficiencies cited during the February surveys, gave Petitioner sufficient specificity with
regard to the deficiencies upon which the noncompliance findings were based. CMS Ex.
1; Birchwood Manor Nursing Center, DAB No. 1669 (1998). Petitioner’s assertion that
the March 19, 2008 letter constituted only a finding and a recommendation and not a
determination under 42 C.F.R. § 498.20 is also unreasonable. Section 498.3(b)(13) of 42
C.F.R. defines an initial determination with respect to a skilled nursing facility or nursing
facility as a “finding of noncompliance that results in the imposition of a remedy
specified in § 488.406 ....” The DPNA referenced here is such a remedy and it was
based on findings of noncompliance identified in the statements of deficiencies from the
February surveys.

Petitioner’s interpretation of the August 5, 2008 letter from CMS is also unreasonable.
The letter did not revise the DPNA remedy or otherwise extend any deadlines emanating
from the March 19, 2008 letter. Although the August 5 letter may not be a model of
clarity, it expressly noted that the state survey agency had sent Petitioner notice of the
DPNA, and its effective date of May 22, 2008, in the March 19, 2008 letter. Moreover,
nothing in the August 5, 2008 letter references extending the deadline to request a hearing
for the deficiency findings related to the February 2008 surveys. The August 5, 2008
letter imposed per instance CMPs based on later surveys and discussed termination on
August 22, 2008, but the additional remedies did not revise the March 19, 2008 letter or
impose a new DPNA remedy. Reference to a continuing DPNA is not a revised
determination.

Petitioner also has not shown good cause for me to extend the time for filing a hearing
request. Petitioner failed to explain why it did not initially file a request for hearing with
regard to the March 19, 2008 letter or request an extension of time in which to do so. It is
also plain, from the sequence of events noted above and the text of the document itself,
that the August 5, 2008 letter does not constitute good cause for my extending such
9

hearing rights via 42 C.F.R. § 498.40(c)(2). It is axiomatic that facilities participating in
the Medicare and Medicaid programs are charged with understanding and complying with
the procedural rules governing appeals. Cary Health and Rehabilitation Center, DAB
No, 1771 (2001). And “under any reasonable definition” of good cause for failure to do
so, Petitioner must be seen here to lack that good cause. Brookside Rehabilitation and
Care Center, DAB No. 2094 (2007); Hillcrest Healthcare, L.L.C., DAB No. 1879;
Hospicio San Martin, DAB No. 1554.

In sum, the NMDH was authorized by CMS to impose a DPNA in the notice letter dated
March 19, 2008. Petitioner was specifically afforded the right to a hearing. Petitioner did
not request a hearing within the 60 days provided for by regulation, nor did Petitioner ask
for an extension of time to submit a hearing request. Since Petitioner failed to file a
hearing request timely it lost its opportunity to contest the deficiencies cited in the March
19, 2008 letter or to contest the imposition of the DPNA based on that noncompliance.

C. The DPNA imposed is required by law and Petitioner is not entitled to a
hearing with regard to the date on which it achieved substantial compliance.

Petitioner asserts that it was in substantial compliance prior to May 22, 2008, and that
imposition of the DPNA based on the February 2008 noncompliance and the March 19,
2008 notice letter is thus improper, as Petitioner asserts that it came back into compliance
within 90 days, i.e., by March 28, 2008. Further, Petitioner asserts that it should be
provided the opportunity to prove it was in substantial compliance prior to May 22, 2008,
and should not be denied a hearing on that issue.

Specifically, Petitioner asserts that in its post-certification revisit report following the
August 18, 2008 revisit survey, NMDH reflected that Petitioner had corrected all the
deficiencies in the February 2008 surveys on March 28, 2008, consistent with its plan of
correction. P. Ex. B. Petitioner asserts that CMS’s argument that NMDH’s finding of
substantial compliance must be limited to the date of the actual onsite revisit is simply
wrong. According to Petitioner’s argument, the purpose of a revisit is to determine
whether deficiencies identified have been corrected and substantial compliance achieved.
State Operations Manual, section 7317B(2). Petitioner insists that the revisit should have
been conducted prior to expiration of the period in which the facility must achieve
compliance to avoid imposition of a mandatory remedy. State Operations Manual,
section 7317B. Petitioner complains that NMDH did not fulfill its representation to
Petitioner in the March 19, 2008 letter that it would revisit Petitioner prior to May 22,
2008, the date of mandatory DPNA. When NMDH finally made its revisit, it found
Petitioner in substantial compliance as of March 28, 2008. Petitioner asserts that it is
contrary to applicable regulations not to permit Petitioner to present evidence
demonstrating that it was in substantial compliance, and capable of remaining so, ona
date preceding the revisit. See 42 C.F.R. § 488.454(e).

10

Section 1819(h)(2)(D) of the Act requires the Secretary to impose a DPNA if a facility
has not complied with participation requirements within three months after it is found out
of compliance with those requirements. 42 C.F.R. § 488.417(d). In this case, the
effective date for the DPNA, based on this section of the Act, was May 22, 2008.

The regulations, at 42 C.F.R. § 488.454(a)(1), provide that alternative remedies such as a
DPNA continue until “[t]he facility has achieved substantial compliance, as determined
by CMS or the State based upon a revisit or after an examination of credible written
evidence that it can verify without an on-site visit.” Further, payments to a facility
“resume prospectively on the date that the facility achieves substantial compliance, as
indicated by a revisit or written credible evidence acceptable to CMS (under Medicare) or
the State (under Medicaid).” 42 C.F.R. § 488.417(d). A plan of correction does not
establish substantial compliance, but is rather a promise that remedial action will be taken
in strict accordance with the plan. The plan is not proof that the actions have been
effectuated. In and of itself, a plan of correction is not necessarily sufficient to overcome
the presumption of continuing noncompliance A. W. Schlesinger, DAB CR853, at 6
(2002). Significantly, the regulations do not require CMS to provide affirmative evidence
of continuing noncompliance. Barn Hill Care Center, DAB No. 1848 (2002).

In the case of United Presbyterian Residence, DAB CR1305 (2005), the petitioner also
missed the deadline to appeal findings of noncompliance that led to a mandatory DPNA,
but requested a hearing based on the compliance date. The ALJ found that the petitioner
was precluded from contesting the initial deficiency findings, but that it had preserved its
right to prove compliance earlier than the onsite revisit date, citing Mimiya Hospital,
DAB No. 1833 (2002), where the Board affirmed an ALJ finding that the noncompliance
upon which a CMP was imposed was not timely challenged, but the petitioner was
allowed to challenge the compliance determination date.

In the ALJ’s decision in United Presbyterian, the ALJ found that Petitioner failed to
prove by a preponderance of the evidence that it had achieved substantial compliance as
of the plan of correction date because some of the deficiencies involved required onsite
verification. The ALJ noted that certain regulations required an onsite visit to verify
compliance, including 42 C.F.R. §§ 483.25(h)(2) (Tag F 324); 483.13(c)(1) (Tag F 224);
483.75(f) (Tag F 498); 483.13(c)(ii) (Tag F 225); and 483.15(a) (Tag F 241).

Here, the statement of deficiencies from the February 22, 2008 survey (CMS Ex. 7) cited
deficiencies as a direct result of surveyors’ observations of care and interviews with staff
related to the use of restraints, pressure sore care, and range of motion. CMS alleges that
such noncompliance could not be verified by written evidence, as distinct from the
situation discussed in United Presbyterian, DAB CR1305, at 9, where the ALJ noted that
a petitioner cited for not having a backup generator could use written evidence such as a
receipt for payment and installation of such a generator to prove substantial compliance
without an onsite revisit. I accept CMS’s representation that a plan of care alone would
11

not have been enough to demonstrate substantial compliance here, where the surveyors
needed to go back to the facility and observe the care provided to facility residents. I find
that given the nature of Petitioner’s noncompliance Petitioner could not have
demonstrated compliance until that revisit date. And although Petitioner argues that the
post revisit certification report generated after the August 14, 2008 revisit established
Petitioner’s substantial compliance on March 28, 2008, that substantial compliance was
not what the post revisit certification report found. It found only that the deficiencies
cited were corrected as of March 28, 2008, not that Petitioner was in substantial
compliance with all other participation requirements. The Board has found that a post
certification revisit report containing no statement that a facility was in substantial
compliance merely indicates that previously reported deficiencies have been corrected,
and that a finding that deficiencies have been corrected is not the same as a determination
that a facility has achieved substantial compliance with all participation requirements.
Meadowbrook Manor-Naperville, DAB No. 2173, at 13-14 (2008).

Moreover, although Petitioner asserts that NMDH should have made its revisit prior to
May 22, 2008, the timing of a revisit is solely within the state survey agency’s discretion.
Arbor Hospital of Greater Indianapolis, DAB No. 1591 (1996). Alleged irregularities in
the timing of the revisit would not relieve Petitioner from meeting all the requirements of
program participation and are thus irrelevant to the finding of noncompliance or the
length of that noncompliance. See Beechwood Sanitarium, DAB No. 1824 (2002).

V. Conclusion

Summary disposition in CMS’s favor is warranted by the facts and law discussed above.
The DPNA imposed is required by law. Petitioner failed to request a hearing to dispute
the noncompliance with participation requirements found during the February surveys.
Petitioner is not entitled to a hearing with regard to the date on which it achieved
substantial compliance, because the deficiencies identified during the survey ending on
February 22, 2008 required an onsite visit to verify substantial compliance, and the onsite
visit was not completed until August 14, 2008. CMS’s Motion for Summary Disposition
should be, and it is, GRANTED.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Breton Lee Morgan, M.D., ) Date: March 3, 2009
)
Petitioner, )
)
-Vv.- ) Docket No. C-08-529
) Decision No. CR1913
The Inspector General. )
)
DECISION

This matter is before me in review of the Inspector General’s (I.G.’s) determination to
exclude Petitioner Breton Lee Morgan, M.D., from participation in Medicare, Medicaid,
and all other federal health care programs for a period of five years. The I.G.’s
determination to exclude Petitioner is based on the terms of section 1128(a)(3) of the
Social Security Act (Act), 42 U.S.C. § 1320a-7(a)(3). There is a basis for Petitioner’s
exclusion and the undisputed facts in this case require the imposition of the minimum
five-year period of exclusion. For those reasons, I sustain the I.G.’s determination.

I. Procedural Background

Petitioner Breton Lee Morgan, M.D., practiced medicine in the State of West Virginia
between 2003 and 2006. On August 30, 2006, the Federal Grand Jury sitting for the
United States District Court for the Southern District of West Virginia handed up an
Indictment charging Petitioner with twenty-nine felonies related to controlled substances
allegedly committed during that period. Specifically, Count One of the Indictment
charged Petitioner with conspiracy to distribute controlled substances, in violation of 21
U.S.C. § 846; Counts Two through Twenty-Four charged him with unlawful distribution
of a controlled substance, in violation of 21 U.S.C. § 841(a)(1); Counts Twenty-Five
through Twenty-Eight charged him with acquiring or obtaining possession of a controlled
substance by misrepresentation, fraud, deception, and subterfuge, in violation of 21
U.S.C. § 843(a)(3); and Count Twenty-Nine charged him with making materially-false
statements to investigators in connection with his activities, in violation of 18 U.S.C. §
1001.
2

Represented by counsel, Petitioner reached a plea agreement with prosecutors and on
December 11, 2006 pleaded guilty to Count Twenty-Eight of the Indictment, and thus
admitted his guilt to one felony violation of 21 U.S.C. § 843(a)(3). He appeared on
March 12, 2007, and was sentenced to a 30-day term of incarceration, followed by a 3-
month term of supervised probation. He was, in addition, ordered to pay a fine of $5000
and an assessment of $100. The Indictment’s remaining counts were dismissed on motion
of the United States.

Mandated to do so by the terms of section 1128(a)(3) of the Act, the LG. began the
process of excluding Petitioner from participation in Medicare, Medicaid, and all other
federal health care programs. On May 30, 2008, the I.G. notified Petitioner that he was
to be excluded for a period of five years.

Petitioner timely sought review of the I.G.’s action on June 10, 2008. I convened a
prehearing conference by telephone on August 31, 2006, pursuant to 42 C.F.R. § 1005.6.
The I.G. expressed the intention to seek summary disposition on written submissions, and
I established a schedule for the filing of documents and briefs. That briefing cycle has
been completed, and the record in this case closed January 6, 2009.

The evidentiary record on which I decide this case contains ten exhibits. The I.G. has
proffered I.G.’s Exhibits 1-5 (I.G. Exs. 1-5), and Petitioner has proffered five exhibits,
incorrectly designated Petitioner’s Exhibits A-E (P. Exs. A-E). In the interests of
simplicity and economy, I have not corrected Petitioner’s designation of exhibits. Neither
party has objected to the admission of any of these exhibits, and so all are admitted as
designated.

II. Issues

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

1. Whether 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)(3) of the Act; and

2. Whether the five-year term of the exclusion is unreasonable.

The controlling authorities require that both issues be resolved in favor of the I.G.’s
position. Because his predicate conviction has been established, there is a basis for
Petitioner’s exclusion pursuant to section 1128(a)(3) of the Act. A five-year term of
exclusion is the minimum established by section 1128(c)(3)(B) of the Act, 42 U.S.C. §
1320a-7(c)(3)(B).
Ii. Controlling Statutes and Regulations

Section 1128(a)(3) of the Act, 42 U.S.C. § 1320a-7(a)(3), requires the mandatory
exclusion from participation in Medicare, Medicaid, and all other federal health care
programs of “[a]ny individual or entity that has been convicted for an offense which
occurred after [August 21, 1996] under Federal or State law, in connection with the
delivery of a health care item or service or with respect to any act or omission in a health
care program (other than those specifically described in [section 1128(a)(1)] operated by
or financed in whole or in part by any Federal, State, or local government agency, of a
criminal offense consisting of a felony related to fraud, theft, embezzlement, breach of
fiduciary responsibility, or other financial misconduct.” The regulation implementing
section 1128(a)(3) appears at 42 C.F.R. § 1001.101(c)(1).

The Act defines “conviction” as including those circumstances “when a judgment of
conviction has been entered against the individual ... by a Federal... court... ;” or
“when there has been a finding of guilt against the individual .. . by a Federal . . . court.”
Act, section 1128(i)(1), 42 U.S.C. § 1320a-7(i)(1); Act, section 1128(i)(2), 42 U.S.C.

§ 1320a-7(i)(2). These definitions are repeated at 42 C.F.R. § 1001.2.

An exclusion based on section 1128(a)(3) is mandatory: the I.G. must impose it for a
minimum period of five years. Act, section 1128(c)(3)(B), 42 U.S.C. § 1320a-7(c)(3)(B).
The regulatory language of 42 C.F.R. § 1001.102(a) affirms the statutory provision.

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

1. On December 6, 2006, in the United States District Court for the Southern District of
West Virginia, Petitioner Breton Lee Morgan, M.D., pleaded guilty to one felony charge
of acquiring or obtaining possession of a controlled substance by misrepresentation,
fraud, deception, and subterfuge, in violation of 21 U.S.C.§ 843(a)(3). I.G. Exs. 2, 3, 4,
5.

2. Final adjudication of guilt, judgment of conviction, and sentence based on that plea of
guilty were imposed on Petitioner in the United States District Court on March 12, 2007,
and recorded in its Judgment in a Criminal Case filed on March 14, 2007. I.G. Ex. 5; P.
Ex. E.

3. On May 30, 2008, the I.G. notified Petitioner that he was to be excluded from
participation in Medicare, Medicaid, and all other federal health care programs for a
period of five years, based on the authority set out in section 1128(a)(3) of the Act. I.G.
Ex. 1.
4

4. Petitioner perfected his appeal from the I.G.’s action by filing a hearing request on
June 10, 2008.

5. The adjudication of guilt, judgment of conviction, and sentence described above in
Findings | and 2 constitute a felony conviction within the meaning of sections 1128(a)(3)
and 1128(i)(1) and (2) of the Act, and 42 C.F.R. § 1001.2.

6. The conduct that resulted in Petitioner’s conviction described above in Findings | and
2 related to fraud. I.G. Exs. 2, 3, 5.

7. The conduct that resulted in Petitioner’s conviction described above in Findings | and
2 related to the delivery of a health care item or service. I.G. Exs. 2, 3.

8. The conduct that resulted in Petitioner’s conviction described above in Findings | and
2 occurred after August 21, 1996. I.G. Exs. 2, 3, 4; P. Ex. E.

9. Because the five-year period of Petitioner’s exclusion is the mandatory minimum
period provided by law, it is not unreasonable. Section 1128(c)(3)(B) of the Act; 42
C.F.R. §§ 1001.102(a) and 1001.2007(a)(2).

10. There are no disputed issues of material fact and summary affirmance is appropriate
in this matter. Michael J. Rosen, M.D., DAB No. 2096 (2007); Thelma Walley, DAB No.
1367 (1992); 42 C.F.R. § 1005.4(b)(12).

V. Discussion

The four essential elements necessary to support an exclusion based on section 1128(a)(3)
of the Act are: (1) the individual to be excluded must have been convicted of a felony
offense; (2) the felony offense must have been based on conduct relating to fraud, theft,
embezzlement, breach of fiduciary responsibility, or other financial misconduct; (3) the
felony offense must have been for conduct in connection with the delivery of a health
care item or service, or the felony offense must have been with respect to any act or
omission in a health care program operated by or financed in whole or in part by any
federal, state, or local government agency; and (4) the felonious conduct must have
occurred after August 21, 1996. Andrew D. Goddard, DAB No. 2032 (2006); Erik D.
DeSimone, R.Ph., DAB No. 1932 (2004); Jeremy Robinson, DAB No. 1905 (2004);
Morganna Elizabeth Allen, DAB CR1479 (2006); Theresa A. Bass, DAB CR1397 (2006);
Michael Patrick Fryman, DAB CR1261 (2004); Golden G. Higgwe, D.P.M., DAB
CR1229 (2004); Thomas A. Oswald, R.Ph., DAB CR1216 (2004); Katherine Marie
Nielsen, DAB CR1181 (2004).
Petitioner does not deny the fact of his felony conviction, its nexus to the delivery of
health care items and services, and the period of time when his felonious conduct
occurred. He does not argue that his one-count conviction is insufficient to satisfy the
first, third, and fourth essential elements set out above. Petitioner’s Answer Brief (P.
Ans. Br.) at 1-2; Petitioner’s Response Brief (P. Resp. Br.) at 1. In any case, those three
essential elements are demonstrated in the United States District Court records before me.
.G. Exs. 3, 4, 5; P. Ex. E.

Petitioner admits here what he confessed in court: that he accepted drugs from
manufacturers’ representatives as samples to be given gratis to his patients, but took them
imself. Petitioner asserts — and there is no evidence to suggest otherwise — that he did
not sell or attempt to sell the hydrocodone he obtained for his own use by leading the
pharmaceutical companies to believe that he intended to offer them to his patients as
samples, and at no charge. What Petitioner does contest is the second essential element,
the relation of the conduct underlying his conviction to “fraud, theft, embezzlement,
reach of fiduciary responsibility, or other financial misconduct.” The statutory language,
argues Petitioner, is so structured as to require that any felony conviction based on any of
the alternative terms — an act of fraud, or of theft, or of embezzlement, or of breach of
fiduciary duty — must involve financial misconduct before it can fall within the reach of
section 1128(a)(3). But that argument cannot succeed in the face of at least three
substantial objections.

First, the congruence of the language of the statute forbidding the felonious conduct for
which Petitioner was convicted and the language of section 1128(a)(3) makes section
1128(a)(3) applicable — at least arguably — as a matter of law. The statute on which
Petitioner was convicted provides that:

It shall be unlawful for any person knowingly or intentionally —
(3) to acquire or obtain possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge.
21 U.S.C. § 843(a)(3).

There is no requirement of a financial exchange, of a financial motive, or of a financial
profit or loss, for the offense to be complete. On the other hand, the requirement that the
controlled substance be obtained by some form of false representation is central to the
offense. The crime proscribed by 21 U.S.C. § 843(a)(3) is by its definition the purest
form of crimen falsi. Thus, any violation of 21 U.S.C. § 843(a)(3) must necessarily
involve a fraudulent act as contemplated by the first alternative term in section
1128(a)(3)’s second essential element, particularly given this forum’s adaption of a
definition of “fraud” as "a knowing misrepresentation of the truth or concealment of a
material fact to induce another to act to his or her detriment.". Mohammad A. Adas, M.D.,
DAB CR1202 (2004).

This point is important in considering the second substantial objection to Petitioner’s
argument. This second objection is based on the well-understood principle that the I.G.’s
authority to exclude entities and individuals derives from twin remedial imperatives: the
protection of federal funds and program beneficiaries from untrustworthy individuals and
the deterrence of health care fraud. Jeremy Robinson, DAB No. 1905; Joann Fletcher
Cash, DAB No. 1725, at 18, 15 (2000); Larry White, R. Ph., DAB No. 1346 (1992). See
also S. Rep. No. 109, 100th Cong., 1st Sess. (1987), reprinted in 1987 U.S.C.C.A.N. 682,
686. When Congress added section 1128(a)(3) in 1996, it again focused upon the desired
deterrent effect: "greater deterrence was needed to protect the Medicare program from
providers who have been convicted of health care fraud felonies ...." H.R. Rep. 496(1),
104th Cong., 2nd Sess. (1996), reprinted in 1996 U.S.C.C.A.N. 1865, 1886. The statute’s
broad target comprises crimes of falseness, deceit, or dishonesty. To read that statute so
as to limit its reach, as Petitioner argues, only to crimes of falseness, deceit, or dishonesty
involving money would be unreasonable in light of its clear purpose and clearer goal.
And it may be helpful to note that because the exclusionary authority is remedial rather
than criminal, the narrow reading of statutory language usually required of criminal laws
is not required here.

Finally, although there may be good reason to rely upon them with a measure of caution,
the decisions of the Departmental Appeals Board (Board) and the Administrative Law
Judges (ALJs) of this forum do not support Petitioner’s argument. When medical
professionals, pharmacists, and caregivers have been convicted of dishonestly diverting
prescription medications to their own illicit use, the Board and ALJs have never asked
whether a financial exchange was involved before applying section 1128(a)(3). Kevin J.
Bowers, DAB No. 2143 (2008); Andrew D. Goddard, DAB No. 2032; Kenneth M. Behr,
DAB No. 1997 (2005); Eric D. DeSimone, DAB No. 1932; Danielle Lyn Timkovich,
DAB CR1793 (2008); John Shell, DAB CR1725 (2008); Kevin J. Bowers, DAB CR1661
(2007); James Rosselit, Jr., DAB CR1477 (2006); Dorothy Jane Vultaggio, a/k/a Dorothy
J. Voltaggio, DAB CR1448 (2006); Theresa A. Bass, DAB CR1397. Now, it must be
noted that in the cited cases (and in many more, of which the cited cases are
representative) the Board and the ALJs were not asked to rule on the precise point
Petitioner has raised here. Nevertheless, there appears nowhere in any of the cases the
hint or suggestion that the reach of section 1128(a)(3) is limited to crimes involving
financial or monetary gain or loss. For that reason, and for the reasons set out in my
discussion of the first two objections to Petitioner’s argument, I decline to read such a
limitation into the statute.

The five-year period of exclusion proposed in this case is the absolute minimum required
by section 1128(c)(3)(B) of the Act. As a matter of law it is not unreasonable, and neither
the Board nor I can reduce it. Mark K. Mileski, DAB No. 1945 (2004); Salvacion Lee,
M.D., DAB No. 1850 (2002); 42 C.F.R. § 1001.2007(a)(2).
7

Resolution of a case by summary disposition is particularly fitting when settled law can
be applied to undisputed material facts. Michael J. Rosen, M.D., DAB No. 2096; Thelma
Walley, DAB No. 1367. Summary disposition is authorized by the terms of 42 C.F.R. §
1005.4(b)(12). This forum looks to FED. R. CIV. P. 56 for guidance in applying that
regulation. Robert C. Greenwood, DAB No. 1423 (1993). The material facts in this case
are undisputed and unambiguous. They support summary disposition as a matter of
settled law. This Decision issues accordingly.

VI. Conclusion

For the reasons set out above, the I.G.’s Motion for Summary Affirmance should be, and
itis, GRANTED. The I.G.’s exclusion of Petitioner Breton Lee Morgan, M.D., from
participation in Medicare, Medicaid, and all other federal health care programs for a term
of five years, pursuant to the terms of section 1128(a)(3) of the Act, is sustained.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

)

In the Case of: )
) Date: March 3, 2009

Vestibular Diagnostics, LLC, )
) Docket No. C-08-707

Petitioner, ) Decision No. CR 1912

)

-v.- )

)

Centers for Medicare & Medicaid Services. )

_)

DECISION

The request for hearing of Petitioner is dismissed pursuant to 42 C.F.R. § 498.70(b)' as
Petitioner has no right to a hearing under statute or regulation, and I have no jurisdiction
to hear and decide this case.

I. Background

Petitioner filed a request for hearing dated August 27, 2008, requesting a hearing before
an administrative law judge (ALJ). Petitioner seeks review of a decision by the Medicare
contractor, Palmetto GBA, denying Petitioner’s enrollment in Medicare as an
Independent Diagnostic Testing Facility (IDTF). The case was assigned to me for
hearing and decision on September 4, 2008, and an Acknowledgment and Prehearing
Order (Prehearing Order) was issued at my direction.

On September 24, 2008, the Centers for Medicare & Medicaid Services (CMS) filed a
motion to dismiss or for summary judgment (CMS Motion), with CMS exhibits (CMS
Ex.) 1 through 4 and 6 through 16. On October 13, 2008, Petitioner filed its response to
the CMS motion to dismiss or for summary judgment and its cross-motion for summary

' The Code of Federal Regulations cited throughout is the 2008 version, available
at http://www.gpoaccess.gov/cfr/index.html.

2

judgment (P. Response). CMS filed a reply brief on November 17, 2008 (CMS Reply).
On October 31, 2008, Petitioner filed Petitioner’s exhibits (P. Ex.) 1 through 12.2 No
objection has been made to my consideration of the exhibits and all are admitted.

II. Discussion
A. Issue
Whether Petitioner’s request for hearing must be dismissed for lack of jurisdiction.
B. Applicable Law

Section 1831 of the Social Security Act (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. § 1395u(h)(1)). Administration of
the Part B program is through Medicare contractors. Act § 1842(a) (42 U.S.C. §
139S5u(a)). The Act requires that the Secretary issue regulations that establish a process
for the enrollment of providers and suppliers, including the right to a hearing and judicial
review in the event of denial or non-renewal. Act 1866(j) (42 U.S.C. § 1395cc(j)). The
Secretary promulgated regulations at 42 C.F.R. Part 424 governing the conditions for
Medicare payment. The regulations at 42 C.F.R. Part 424, subpart P establish the
requirements for enrollment as a provider or supplier. 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

> Petitioner exhibits marked and submitted as part of its prehearing exchange are
referenced rather than the exhibits listed on the attachment to Petitioner’s cross-motion
for summary judgment.

> A “supplier” furnishes services under Medicare and includes physicians or other
practitioners and facilities that are not a “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, or are subject to section
1814(g) and section 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.
3

rendered to a Medicare-eligible beneficiary. An IDTF, such as Petitioner, is a type of
supplier described at 42 C.F.R. § 410.33, which also sets forth the specific requirements
an IDTF must meet to participate in Medicare.

The regulations distinguish between a rejection of an enrollment application and the
denial of an enrollment application. 42 C.F.R. § 424.502. A denial of an enrollment
application requires a determination that a prospective provider or supplier is ineligible to
participate in Medicare. A rejection means that an enrollment application was not
processed due to missing information or supporting documents. Pursuant to 42 C.F.R. §
424.525(a), CMS and its Medicare contractor may reject a provider or supplier’s
enrollment application because the application does not contain all required information
or because not all required supporting documents are submitted. Rejection of an
enrollment application does not trigger the right to appeal or request a hearing. 42 C.F.R.
§ 424.525(d). If.an application is rejected, the prospective provider or supplier may
submit the complete enrollment application without any waiting period. 42 C.F.R. §
424.525(c).

CMS may deny a supplier’s enrollment application if a supplier is not in compliance with
Medicare enrollment requirements. 42 C.F.R. § 424.530(a)(1). An incomplete
application is not one of the grounds listed for denial. A supplier 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. CMS’s contractor notifies a supplier in writing when it denies enrollment and
explains the reasons for the determination and information regarding the supplier’s right
to appeal. 42 C.F.R. § 498.20(a). The supplier may submit a written request for
reconsideration to CMS. 42 C.F.R. § 498.22(a). CMS 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. 42 C.F.R. § 498.25.
If the CMS decision on reconsideration is unfavorable to the supplier, the Act and
regulations provide for a hearing by an ALJ and judicial review. Act § 1866(j); 42 C.F.R.

* Currently, if enrollment is approved, a supplier is issued a National Provider
Identifier (NPI) to use for billing Medicare and a Provider Transaction Access Number
(PTAN), an identifier for the supplier for inquiries. Medicare Program Integrity Manual
(MPIM), Chapter 10 — Healthcare Provider/Supplier Enrollment, § 6.1.1. In this case it is
sufficient to understand that Petitioner’s billing number and related billing privileges
were revoked.
4

§ 424.545, 498.5. A prospective provider or supplier that is denied enrollment may not
submit a new application until its right to review or appeal has lapsed or expired or until it
receives notice that the denial was upheld on appeal. 42 C.F.R. § 424.530(b).

C. Analysis

Petitioner alleges in its request for hearing that it was advised of the initial denial of its
application to enroll in Medicare by letters from the Medicare contractor dated February
5, 2008 (P. Ex. 1, at 1) and March 12, 2008 (P. Exs. 1, at 3). Petitioner alleges that its
request for reconsideration dated April 8, 2008 (P. Ex. 6), supplemented by a letter dated
May 20, 2008 (P. Ex. 7), was denied by the Medicare contractor, although Petitioner
agrees it never received a notice to that effect. Request for Hearing at 1-3; Petitioner’s
Prehearing Exchange at 1. CMS argues as grounds for dismissal of Petitioner’s request
for hearing that there was no initial determination to deny Petitioner’s application; there
was no reconsideration decision adverse to Petitioner; therefore, Petitioner has no right to
a hearing; and I have no jurisdiction to review and decide this case.’ CMS Motion at 1, 5-
9; CMS Reply at 1. Because the CMS motion to dismiss is meritorious this case must be
dismissed and it is not necessary to address the cross-motions for summary judgment.

Petitioner filed its first application to enroll in Medicare, a Form CMS-855B, on October
18, 2007. P. Ex. 2. The Medicare contractor notified Petitioner by letter dated November
6, 2007, that Petitioner’s application was received but the application was returned
because it did not reflect that Petitioner was functioning as an IDTF, that technicians were
available at the site, and that equipment was calibrated and ready for use. The Medicare
contractor listed specific information that must be included when the application was
resubmitted after Petitioner officially opened for business. P. Ex. 3. Petitioner
resubmitted its enrollment application on January 22, 2008. P. Response at 4-6. The
Medicare contractor advised Petitioner by letter dated February 5, 2008, the letter
Petitioner alleges constituted the initial denial, that Petitioner’s application was received
but it was “not processable at this time” because the application did not include
information regarding an audiologist.’ The contractor further advised Petitioner that it

* It is not disputed that on July 30, 2008, the contractor notified Petitioner that its
enrollment in Medicare was effective May 22, 2008. CMS Ex. 1.

® The parties argue extensively in their briefs regarding whether or not an
audiologist was actually required to perform testing Petitioner intended to perform.
Whether or not dismissal of the request for hearing is required does not turn on resolution
of the issue of whether or not the Medicare contractor was correct in its determination
(continued...)
5

could resubmit its application to a specific individual on the contractor’s staff when the
information regarding the audiologist was provided. P. Ex. 1, at 1. The Medicare
contractor’s March 12, 2008 letter to Petitioner, the second letter Petitioner alleges
constituted an initial denial, contained a further discussion of the basis for the contractor’s
conclusion that a qualified audiologist was required for some of the testing Petitioner
intended to perform. P. Ex. 1, at 3. Petitioner asserts in its letter to the Medicare
contractor dated April 8, 2008, that it was requesting reconsideration of the initial denial
of its enrollment reflected by the contractor’s letters dated February 5 and March 12,
2008; that Petitioner did not consider either of the contractor’s letters to state that
Petitioner’s enrollment application was rejected and, thus, Petitioner elected to treat the
letters as an initial determinations denying enrollment; and that as initial determinations
the letters did not meet the notice requirements of 42 C.F.R. § 498.20(a).

My review of the correspondence from the Medicare contractor to Petitioner reveals that
no determination was made that Petitioner was not eligible to participate in Medicare and,
thus, Petitioner’s enrollment application was not denied. Rather, the Medicare
contractor’s letter clearly advised Petitioner that its application was not processed due to
missing information and that the application could be resubmitted as soon as the missing
information was provided. The letters show that the Medicare contractor rejected
Petitioner’s application within the meaning of 42 C.F.R. §§ 424.502 and 424.525.
Accordingly, I conclude that Petitioner had no right to request reconsideration or to a
hearing by an ALJ. 42 C.F.R. § 424.525(d).

Ill. Conclusion

For the foregoing reasons discussed, Petitioner’s request for hearing is dismissed.

/s/
Keith W. Sickendick
Administrative Law Judge

°(...continued)
that Petitioner needed an audiologist for some of its tests. I will not render an advisory
opinion on an issue not properly before me for resolution due to a lack of jurisdiction.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)

Caremed LLC, ) Date: February 27, 2009
)
Petitioner, )
)

-Vv.- ) Docket No. C-09-98
) Decision No. CR1910
Centers for Medicare & Medicaid )
Services. )
)
DECISION

I grant summary judgment to the Centers for Medicare & Medicaid Services (CMS)
sustaining revocation of the supplier number of Petitioner, Caremed LLC.

I. Background

Petitioner is a Michigan-based pharmacy which has participated in the Medicare program
as a supplier of items to Medicare beneficiaries. On July 23, 2008, Petitioner was notified
on behalf of CMS that its supplier number was being revoked because Petitioner had been
found to be out of compliance with Medicare participation requirements governing
suppliers. Petitioner requested reconsideration of this determination and on September
30, 2008 a Medicare hearing officer issued a decision affirming the revocation of
Petitioner’s supplier number. Then, Petitioner asked for a hearing and the case was
assigned to me for a hearing and a decision.

I instructed the parties to file pre-hearing exchanges consisting of briefs and their
proposed exhibits including the written direct testimony of any proposed witnesses. CMS
complied with my order and, with its submission, it filed a motion for summary judgment.
2

Petitioner requested an extension of time for it to reply to the motion, which I granted.
However, Petitioner did not file a reply or a pre-hearing exchange. Instead, on February
17, 2009, it faxed a letter to my office. For reasons which I discuss below, I conclude that
this letter is not responsive to my pre-hearing order or to CMS’s motion.

CMS submitted 14 proposed exhibits with its pre-hearing exchange which it designated as
CMS Ex. 1 - CMS Ex. 14. Petitioner submitted no proposed exhibits. I am receiving all
of CMS’s exhibits into the record of this case and I cite to them in this decision as is
appropriate. I note, however, that Petitioner has not disputed any of the facts that CMS
alleges.

II. Issue, findings of fact and conclusions of law
A. Issue

The issue in this case is whether there is a basis for CMS to revoke Petitioner’s Medicare
supplier enrollment number.

B. Findings of fact and conclusions of law

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

1. CMS is authorized to revoke a supplier’s Medicare enrollment number
where the supplier has failed to satisfy any Medicare enrollment
requirement.

The regulatory authority for revoking a supplier’s Medicare enrollment number is set
forth at 42 C.F.R. § 424.535(a)(5)(ii). That section provides that a supplier’s enrollment
number may be revoked where, among other things, the supplier has failed to satisfy any
or all of the Medicare enrollment requirements governing suppliers.

Supplier Medicare enrollment requirements include standards which are contained at 42
C.F.R. § 424.57(c). There are 25 separate standards set forth in this regulation.
Noncompliance by a supplier with any of them is noncompliance with an enrollment
requirement and is, thus, a basis for CMS to revoke the supplier’s Medicare enrollment
number.
3

2. The undisputed material facts establish that Petitioner failed to satisfy
Medicare enrollment requirements. Therefore, CMS is authorized to
revoke Petitioner’s Medicare enrollment number.

The facts in this case are undisputed. Petitioner is a pharmacy. On May 8, 2008, a site
visit inspector attempted to perform a site inspection of Petitioner’s premises. CMS Ex.
2. However, when the inspector arrived at the premises in Centerline, Michigan that
Petitioner had listed as its business location address and the location where it stored its
patients’ medical records, she was advised by a person at the premises that Petitioner had
moved its patient files and pharmaceutical inventory to another address in Flint,
Michigan. /d., at 6. In subsequent communications Petitioner averred that it had
temporarily transferred its services to premises in Flint that are the site of an affiliated
pharmacy. Petitioner acknowledged additionally that it had obtained a pharmacy license
and Drug Enforcement Administration license for the Flint location. Moreover, it
admitted that it had posted a sign on the Flint location with Petitioner’s name and hours of
operation. CMS Ex. 5, at 2 - 3.'

The undisputed facts establish that Petitioner contravened three standards governing
supplier participation in Medicare as a consequence of its moving its operations from
Centerline to Flint without notifying CMS or its representative of its action. These
standards are at 42 C.F.R. § 424.57(c)(2), (7), (8), and (9). Standard (2) requires a
supplier to report any change in information supplied on its supplier enrollment
application within 30 days of the change. Petitioner contravened this requirement by not
informing CMS or its representative of its move from Centerline to Flint within 30 days
of the move. Standard (7) requires a supplier to maintain a physical location at an
appropriate site. Petitioner violated this requirement by moving its operations,
unannounced, to another site. Consequently, the site that Petitioner had listed with CMS
as its center of operations was no longer functional as of May 8, 2008.

Standard (8) requires a supplier to permit CMS or its agents to conduct on-site inspections
to ascertain supplier compliance. Petitioner failed to comply with this requirement
because, on May 8, 2008, it was not doing business at its Centerline location. Therefore,
the inspector was unable to perform an on-site inspection at the site that Petitioner listed
as its business location. Standard (9) requires a supplier to maintain a primary business

' In its February 17, 2009 communication to me, Petitioner averred that it had
made a decision “to return all facets of . . . [its] business to the permanent address located
... [in] Centerline, Michigan.” I take this statement as an admission by Petitioner that it
had moved its operations away from the Centerline address for a time and that it is now in
the process of returning them to that address.
4

telephone listed under the name of the business locally or toll-free for beneficiaries.
Petitioner was not complying with this requirement as of May 8 because its primary
business telephone number was not listed with directory assistance.

An additional basis exists for revoking Petitioner’s supplier enrollment. A supplier is
required to remain operational in order to furnish Medicare covered items or services.
42 C.F.R. § 424.535(a)(5)(ii). The term “operational” means that a supplier has a
qualified physical practice location, is open to the public for the purposes of providing
health care related services, is prepared to submit valid Medicare claims, and is properly
staffed, equipped, and stocked, in order to furnish covered items or services. 42 C.F.R.
§ 424.502. But, although Petitioner had told CMS that it would be operating its business
from the Centerline location, it was not in fact doing so. The Centerline location did not
meet any of the criteria for an operational Medicare supplier.

The principal argument that Petitioner made at reconsideration of the determination to
revoke its enrollment number was that the move to Flint was only a temporary move
which did not necessitate a notification of an address change. But, in fact, there is
nothing in the regulations that excuses a supplier from having to provide information
concerning even a temporary relocation of its operations. Consequently, the temporary
status of Petitioner’s relocation — which evidently has persisted for several months — is
not a justification for its failure to comply with supplier enrollment requirements.”

/s/
Steven T. Kessel
Administrative Law Judge

> Petitioner’s February 17, 2009 communication suggests that it has only now
decided to return to its Centerline location, more than nine months after the May 8, 2008
site inspection.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Michael Fish, ) Date: March 9, 2009
)
Petitioner, )
)
-Vv.- ) Docket No. C-08-620
) Decision No. CR1909
The Inspector General. )
)
DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Michael Fish
(Petitioner), from participation in Medicare, Medicaid, and all federal health care
programs for a period of five years. For the reasons discussed below, I find that the I.G.
is authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Social Security
Act (Act), and that the statute mandates a minimum five-year exclusion.

I. Background

By letter dated May 30, 2008, the I.G. notified Petitioner that he was being excluded for a
period of five years from participating in the Medicare, Medicaid, and all federal health
care programs. The I.G. informed Petitioner specifically that he was being excluded
pursuant to section 1128(a)(1) of the Act based on his conviction in the Monmouth
County Superior Court of the State of New Jersey, of a criminal offense related to the
delivery of an item or service under the Medicare or state health care program, including
the performance of management or administrative services relating to the delivery of
items or services, under any such program. By letter dated July 17, 2008, Petitioner
timely appealed the I.G.’s decision. In his request, Petitioner asked that the proposed
exclusion not be imposed and instead, that his State-imposed debarment that began in
April 2007 be allowed to serve as the penalty, or in the alternative, that the exclusion run
concurrently with the State debarment.
2

This case was assigned to me for hearing and decision. A telephone prehearing
conference was scheduled for August 20, 2008, but then rescheduled to September 23,
2008, to accommodate Petitioner’s request. During the conference, I advised the parties
that the issues I may review are whether the I.G. has the authority to exclude Petitioner,
and, if so, whether the period imposed is reasonable. The parties agreed that there did not
appear to be a need for an in-person hearing. With the parties’ concurrence, I set a
briefing schedule. See Summary of Prehearing Conference and Order dated September
23, 2008 (Order).

On October 28, 2008, the I.G. submitted an initial brief with seven proposed exhibits
attached (I.G. Exs. 1-7). By letter dated November 13, 2008, Petitioner’s counsel advised
me that Petitioner had insufficient funds to retain his firm for representation in this matter
and that Petitioner would be proceeding on a pro se basis. Petitioner’s counsel attached
to his letter a Substitution of Attorney, dated November 17, 2008, signed by himself and
Petitioner, stating that Petitioner would represent himself in this matter.

na letter dated November 23, 2008, which was accompanied by copies of the above-
mentioned November 13, 2008 letter and the Substitution of Attorney, Petitioner advised
me that he was choosing to represent himself. He stated that he would like the
opportunity to present an oral argument as to why his request should be granted.
Petitioner stated further that he “know[s] [he] cannot argue any of the facts or
circumstances that led to my pleading to an accusation and that is not my intention.”
Petitioner’s letter dated November 23, 2008.

Pursuant to my September 23, 2008 Order, Petitioner had until December 3, 2008, to file
a response, and supporting evidence, if any. Petitioner failed to file a response brief. On
December 17, 2008, I issued an “Order to Show Cause” to Petitioner. The Order to Show
Cause directed Petitioner to file his response brief by January 2, 2009, and advised that
failure to file a brief by the deadline would result in this case being dismissed for
abandonment.

On December 24, 2008, Petitioner submitted his response brief without any exhibits. The
LG. did not file a reply brief. In the absence of any objections, I admit into evidence I.G.
Exs. 1-7.
Il. Issues
The legal issues before me are set out at 42 C.F.R. § 1001.2007(a)(1). They are:

1. Whether the I.G. has a basis for excluding Petitioner from participating in
Medicare, Medicaid, and all other federal health care programs pursuant to
section 1128(a)(1) of the Act; and

2. Whether the proposed five-year period of exclusion is unreasonable.

As I shall explain below, both issues must be resolved in favor of the I.G.’s position. I
find that the I.G. has a basis for excluding Petitioner from program participation.
Moreover, because an exclusion under section 1128(a)(1) must be for a minimum period
of five years, the reasonableness of the length of the exclusion is not an issue.

Ill. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), requires the mandatory
exclusion from participation in Medicare, Medicaid, and all other federal health care
programs of any “individual or entity that has been convicted of a criminal offense related
to the delivery of an item or service under title X VIII or under any State health care
program.” The terms of section 1128(a)(1) are restated in regulatory language at 42
C.F.R. § 1001.101(a). This statutory provision makes no distinction between felony
convictions and misdemeanor convictions as predicates for mandatory exclusion.

The Act defines “conviction” as including those circumstances “when a judgment of
conviction has been entered against the individual... bya... State... court, regardless
of... whether the judgment of conviction or other record relating to criminal conduct has
been expunged,” section 1128(i)(1) of the Act; “when there has been a finding of guilt
against the individual... bya... State... court,” section 1128(i)(2) of the Act; or
“when a plea of guilty or nolo contendere by the individual ... has been accepted bya...
State ... court,” section 1128(i)(3) of the Act. 42 U.S.C. § 1320a-7(i)(1)-(3). These
definitions are repeated at 42 C.F.R. § 1001.2.

An exclusion based in section 1128(a)(1) is mandatory, and the I.G. must impose it fora
minimum period of five years. Section 1128(c)(3)(B) of the Act, 42 U.S.C. § 1320a-
7(c)(3)(B). The regulatory language of 42 C.F.R. § 1001.102(a) affirms the statutory
provision.
IV. Discussion

A, Petitioner must be excluded for five years because he was convicted of a
criminal offense related to the delivery of an item or service under a state health
care program, within the meaning of section 1128(a)(1) of the Social Security
Act.'

Section 1128(a)(1) of the Act requires that the Secretary of Health and Human Services
(Secretary) 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. Individuals excluded under section
1128(a)(1) of the Act must be excluded for a period of not less than five years. Act,
section 1128(c)(3)(B).

On February 7, 2007, Petitioner was charged by Accusation filed in the Superior Court of
New Jersey, County of Monmouth, with one count of Medicaid fraud in the third degree,
in violation of N.J. STAT. ANN. § 30:4D-17(c)(1). Specifically, the accusation charged
that Petitioner

from on or about October 8, 1999, to February 20, 2002, ... knowingly did solicit
or receive a kickback in connection with the furnishing of services for which
payment was made in whole or in part under the New Jersey Medical Assistance
and Health Services Act, ... (“Medicaid”), in that [Petitioner], as principal of
Pharmacy Consultants, LLC, received kickbacks from Michael Stavitski, Jr., Mick,
Inc., d/b/a. Belmar Hometown Pharmacy, in the aggregate amount of at least
$88,693, said kickbacks being made in connection with pharmacy services
provided to the Dayton Woods Health Care Center residents by .. . Belmar
Hometown Pharmacy and said pharmacy services paid for by Medicaid contrary to
the provisions of N.J.S.A. 30:4D-17(c)(1)....

LG. Ex. 4, at 1.

' My findings of fact and conclusions of law are set forth, in italics and boldface,
in the discussion headings of this decision.

> The term “state health care program” includes a state’s Medicaid program. Act,
section 1128(h)(1).
5

Petitioner appeared with counsel in Monmouth County Superior Court on February 7,
2007, and pleaded guilty to the one-count accusation charging him with third degree
Medicaid fraud. I.G. Exs. 2,3, and 5. The court accepted Petitioner’s guilty plea, found
him guilty, and entered judgment of conviction on April 20, 2007. IG. Ex. 2. On that
day, Petitioner was sentenced to one year of probation, payment of certain assessments
and penalties, and payment of restitution to the State of New Jersey in the amount of
$88,693. I.G. Exs. 2, 6. Petitioner further agreed to comply with the terms of a Consent
Order dated April 20, 2007, in which he agreed to be debarred from the New Jersey
Medicaid program for five years and to voluntarily divest his ownership interests in four
Medicaid providers within 90 days. I.G. Ex. 7.

Petitioner does not dispute that he has been convicted of a criminal offense, and the fact
of his conviction is conclusively established by the court records. The court’s acceptance
of his guilty plea, finding of guilt, and the entry of a judgment of conviction, constitute a
“conviction” within the meaning of sections 1128(i)(1), 1128(i)(2), and 1128(i)(3) of the
Act, and 42 C.F.R. § 1001.2.

Petitioner also does not dispute that the offense for which he was convicted related to the
delivery of an item or service under the New Jersey Medicaid program. In describing his
unlawful conduct to the judge, Petitioner stated:

I accepted payments from Belmar Hometown Pharmacy to open doors, bring
facilities to them so that they can provide their pharmacy services to these
facilities. These facilities had residents that were on Medicaid, and they paid me
money to introduce or open the door of these facilities so that they can come in and
service them. They paid me more money than would be reasonably, reasonable in
the course of doing that kind of business.

1G. Ex. 5, at 10. In response to further questioning by the judge, Petitioner confirmed
that he knew that Medicaid patients were at these facilities.’ Jd. Moreover, in his
response brief, Petitioner conceded that he pleaded guilty to Medicaid fraud and admitted
his wrongdoing, stating “[b]y my accepting money from a pharmacy chain to introduce
them to facilities I had contacts with, one of which I had a 10% ownership in was

> Although the nursing home facility stated in the Accusation is “Dayton Woods
Health Care Center” (1.G. Ex. 4, at 1), Petitioner stated before the judge that the facility
is called “Dayton Manor Retirement Center.” IG. Ex. 5, at 10.
6

considered a kickback.” Petitioner’s response brief at 1-2. Petitioner has thus admitted
that he received kickbacks from Belmar Hometown Pharmacy in exchange for referring
Dayton Woods Health Care Center’s Medicaid residents to the pharmacy for the
furnishing of items or services that would be reimbursable by Medicaid.

As a matter of law, it is a settled principle that conviction of a criminal offense for
knowingly and willfully accepting a kickback related to services or items under the
Medicaid or Medicare programs is a crime that falls within the scope of section
1128(a)(1) of the Act. Boris Lipovsky, M.D., DAB No. 1363 (1992); Jose Grau, M.D.,
DAB CR930 (2002); Efstathios Mark Varidin, D.O., DAB CR971 (2002); Jitrenda C.
Shah, M.D., DAB CR720 (2000). Petitioner’s conviction in this case is clearly program-
related. Accordingly, I conclude that there is a basis for Petitioner’s exclusion, and the
exclusion is required by section 1128(a)(1) of the Act.

B. Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of
exclusion under section 1128(a)(1) is five years.

An exclusion under section 1128(a)(1) of the Act must be for a minimum mandatory
period of five years. As set forth in section 1128(c)(3)(B) of the Act:

Subject to subparagraph (G), in the case of an exclusion under subsection
(a), the minimum period of exclusion shall be not less than five years... .

When the I.G. imposes an exclusion for the minimum mandatory five-year period, the
reasonableness of the length of the exclusion is not an issue. 42 C.F.R.
§ 1001.2007(a)(2).

C. [have no authority to order Petitioner’s exclusion be made retroactive.

Petitioner asks that the I.G.’s exclusion not be imposed, and instead, that his five-year
debarment from the New Jersey Medicaid program serve as the penalty; or, in the
alternative, that the exclusion be made retroactive to April 20, 2007, the date his five-year
debarment from the New Jersey Medicaid program began. Petitioner’s hearing request;
Petitioner’s response brief. Petitioner contends that the I.G. notified him of the five-year
exclusion on May 30, 2008, and that this “[b]asically add[ed] 13 months to [his]
exclusion [from the New Jersey Medicaid program].” Petitioner’s response brief at 2.
Petitioner argues that it is not reasonable or fair that it took 13 months for the exclusion to
be imposed; he would have reevaluated his plea agreement had he been aware of this

7

result; and that his debarment from the NJ Medicaid program “accomplished the same
thing as the ban on the Federal level.” Jd.at 4. Petitioner contends that the delay in the
imposition of the exclusion presents a hardship on him and that the law does not “forbid”
his exclusion being made retroactive to April 20, 2007. Jd. at 2,5.

The relief Petitioner is seeking is beyond my power to grant. The Departmental Appeals
Board (the Board) has held that the Act and regulations implementing the Act do not
authorize an administrative law judge (ALJ) or the Board to retroactively adjust the
beginning date of an exclusion. Thomas Edward Musial, DAB No. 1991, at 4-5 (2005)
(citing Douglas Schram, R. Ph., DAB No. 1372, at 11 (1992); David D. DeFries, D.C.,
DAB No. 1317, at 6 (1992); Samuel W. Chang, M.D., DAB No. 1198, at 10 (1990));
Kailash C. Singhvi, M.D., DAB No. 2138, at 4-5 (2007); Lisa Alice Gantt, DAB No.
2065, at 2-3 (2007); Kevin J. Bowers, DAB No. 2143, at 6-7 (2008); Randall Dean Hopp,
DAB No. 2166, at 3-4 (2008). The Board and I are bound by the Act and the Secretary’s
regulations implementing the Act.

Further, I do not have the authority to review the timing of Petitioner’s exclusion.
Kailash C. Singhvi. M.D., DAB No. 2138, at 4-5 (2007); Randall Dean Hopp, DAB No.
2166, at 5; Kevin J. Bowers, DAB No. 2143, at 6-7. In Singhvi, the Board cited court
decisions that declined to modify exclusions based on plaintiffs’ complaints of delay in
the notification or imposition of exclusions, and which held that the Act and the
implementing regulations set no deadlines for the I.G. to act. DAB No. 2138, at 6-7
(citing Seide v. Shalala, 31 F. Supp. 2d 466, 469 (E.D. Pa. 1998) (affirming Charles
Seide, DAB CR525 (1998)); Steven R. Caplan, R.Ph. v. Thompson, Civ. No. 04-00251
(D. Haw. Dec. 17, 2004) (affirming Steven R. Caplan, R.Ph., DAB CR1112 (2003)). The
Board in Singhvi also noted another decision, Connell v. Sec’y of Health and Human
Servs., No. 05-cv-4122-JPG, 2007 WL 1266575 (S.D. Ill. Apr. 30, 2007), in which the
court acknowledged that the regulations do not permit an ALJ to consider questions
regarding the timing of exclusions, but nevertheless remanded to the Secretary for fact-
finding as to the reasons for a 35-month delay between Connell’s criminal conviction and
his exclusion pursuant to section 1128(a)(1) of the Act.* The Board in Singhvi concluded
that Connell did not compel either reversal of Petitioner Singhvi’s exclusion or findings
on whether the delay in imposing his exclusion was reasonable. DAB No. 2138, at 5-7.

* On remand, Connell was dismissed pursuant to a motion to withdraw his hearing
request. See DAB No. 2138, at 6 n.8.
8

Accordingly, despite Petitioner’s arguments in the case at hand, there is nothing in either
the Act or the regulations that would have precluded the I.G. from excluding Petitioner
when he did, and I have no authority to review the I.G.’s exercise of discretion in this
area.

Although Petitioner was represented by counsel initially, he later chose to appear pro se
in these proceedings. For this reason, I have taken additional care in reading his
submissions. In doing so, I have been guided by the Board’s reminders that pro se
litigants should be offered “some extra measure of consideration” in developing their
records and their cases. Louis Mathews, DAB No. 1574 (1996); Edward J. Petrus, Jr.,
M.D., et al., DAB No. 1264 (1991). Ihave searched for any arguments or contentions
that might raise a valid defense to the proposed exclusion. I have found nothing that
could be so construed.

Resolution of a case by summary disposition is particularly appropriate when settled law
can be applied to undisputed material facts. Michael J. Rosen, M.D., DAB No. 2096
(2007); Thelma Walley, DAB No. 1367 (1992). Summary disposition is authorized by the
terms of 42 C.F.R. § 1005.4(b)(12). This forum looks to FED. R. CIV. P. 56 for guidance
in applying that regulation. Robert C. Greenwood, DAB No. 1423 (1993). The material
facts in this case are undisputed and unambiguous. They support summary disposition as
a matter of settled law, and this Decision issues accordingly.

V. Conclusion

For the reasons set out above, I sustain the I.G.’s exclusion of Petitioner from
participation in Medicare, Medicaid, and all other federal health care programs for a
period of five years, pursuant to the terms of section 1128(a)(1) of the Act.

/s/
Alfonso J. Montano
Administrative Law Judge