Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

The Inspector General of the Social Security Administration,’
v.
Chester Davis,
Respondent.
Docket No. C-13-728
ALJ Ruling No. 2014-8

Date: October 28, 2013

ORDER OF DISMISSAL

The Inspector General (I.G.) of the Social Security Administration determined that
Respondent, Chester Davis, violated 42 U.S.C. § 1320a-8, and proposed to impose a civil
monetary penalty on Respondent. Respondent filed a request for hearing (RFH) before
an administrative law judge. Because Respondent failed to timely respond to the I.G.’s
June 18, 2013 discovery request and August 14, 2013 Motion to Dismiss, and my August
20, 2013 Order, I dismiss Respondent’s RFH for abandonment.

I. Background

By letter dated February 26, 2013, the LG. stated that he proposed to impose a total civil
monetary penalty of $30,000 on Respondent pursuant to 42 U.S.C. § 1320a-8.
Respondent timely filed a RFH with the Departmental Appeals Board, Civil Remedies
Division. In a May 7, 2013 letter, the Director of the Civil Remedies Division informed
the parties that I scheduled a telephonic prehearing conference for June 5, 2013. Because
the I.G. had a scheduling conflict, I set May 22, 2013, as the new date for the conference.

' I modified the caption in this case to conform it to the regulations. See 20 C.F.R.
§ 498.202(b); see also 20 C.F.R. § 498.101 (definition of Inspector General).
2

Respondent appeared pro se at the May 22 prehearing conference and asked if his sister,
Ms. Wanda Davis Cooks, could assist him in the preparation of document production
requests. Counsel for the I.G. indicated that she had no objection to Respondent
receiving assistance from his sister. I stated that Respondent should carefully review and
sign any documents prepared by Ms. Wanda Davis Cooks and Respondent should send
his written requests for documents to the I.G. as soon as possible. May 24, 2013 Order
Scheduling Submission of Briefs and Documents § 4. (May 24 Order).

During the prehearing conference, I provided Respondent with information concerning
the proceedings in this case, and established a schedule for discovery and the submission
of briefs, proposed exhibits, and witness lists. In regard to discovery, the parties had until
July 2, 2013, to produce any documents requested by the other party. May 24 Order § 7.

On July 12, 2013, the I.G. submitted to me and served on Respondent, via certified mail,
a Motion to Dismiss Respondent’s RFH. The I.G. asserted that on June 18, 2013, the I.G.
served on Respondent a Request for the Production of Documents, but that Respondent
had not responded to the request or contacted the counsel for the LG. to request
clarification or explain when he could provide the requested documents. The I.G. sought
dismissal of the RFH due to abandonment. See 20 C.F.R. § 498.202(f)(2). In the
alternative, the I.G. requested that I impose a sanction on Respondent. See id. § 498.214.

In an unsigned letter dated July 24, 2013, Respondent asserted that he did not abandon
his RFH. Respondent indicated that his inability to comply with the deadline for
discovery was due to health issues and the use of medications that allegedly made it
difficult to communicate. Respondent stated that his health had improved and that he
“can be punctual and on time from now on to get this hearing finished.”

On August 14, 2013, the LG. renewed its Motion to Dismiss. The I.G. asserted that
Respondent still had not submitted any documents to the I.G. and that “there is no
indication Respondent intends to comply with any, or part, of the document request.”
On August 20, 2013, I issued an Order requiring Respondent to submit documentation
supporting his response to the I.G.’s July 12 Motion to Dismiss. I provided 10 days for
Respondent to submit this documentation and indicated that after receipt of the
documentation, I would rule on the I.G.’s Motion to Dismiss. I also stated that if
Respondent failed to timely respond to my Order, I may dismiss his RFH for
abandonment. The Civil Remedies Division has not received any documentation from
Respondent in response to my August 20 Order.
IL. Issue
Whether Respondent’s RFH should be dismissed for abandonment.
III. Discussion

Unlike most of the Social Security Administration’s proceedings, which are informal and
nonadversarial, proceedings under 42 U.S.C. § 1320a-8 are adversarial. Compare

20 C.F.R. §§ 404.900(b), 405.1(c), 408.1000(b), 416.1400(b) with 20 C.F.R. §§ 498.203,
498.205, 498.208, 498.215. Discovery is often permitted in adversarial proceedings and
the parties to cases arising under 42 U.S.C. § 1320a-8 may “[c]onduct discovery of
documents” by making “a request to another party for production of documents which are
relevant and material to the issues before the [administrative law judge].” Jd.

§§ 498.203(a)(3), 498.207(a). Further, a party receiving a discovery request may seek a
protective order from the administrative law judge. Jd. § 498.207(d). The administrative
law judge may impose sanctions on a party who refuses to provide or permit discovery.
42 U.S.C. § 1320a-8(b)(4)(A); 20 C.F.R. § 498.214.

In the present case, I discussed discovery with the parties at the May 22 prehearing
conference and established July 2, 2013, as the date by which the parties must complete
discovery. May 24 Order. However, it is uncontested that Respondent did not respond to
the I.G.’s discovery request. Although Respondent stated in his July 24 response that he
is now able to proceed with the case, Respondent has not filed any other documents in
this case.

A ruling on the I.G.’s July 12 and August 14 Motions to Dismiss is now ripe. 20 C.F.R.
§ 498.213(c), (d). Respondent has failed to comply with a discovery request made
pursuant to the regulations and my May 24, 2013 Order. By itself, this is probably
insufficient to dismiss an RFH. See 42 U.S.C. § 1320a-8(b)(4)(A); 20 C.F.R.

§ 498.214(b)(1). However, Respondent has also failed to respond to the I.G.’s August 14
Motion to Dismiss and to comply with my August 20 Order for Respondent to provide
support for his July 24 response to the I.G.’s July 12 Motion to Dismiss. An
administrative law judge “shall dismiss a hearing request where . . . [t]he respondent
withdraws or abandons respondent’s request for a hearing.” 20 C.F.R. § 498.202(f)(2).
Because it appears that Respondent has decided to abandon his RFH, I must dismiss his
RFH.
IV. Conclusion
The I.G.’s Motion to Dismiss is granted and Respondent’s RFH is dismissed.

It is so ordered.

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Ian Smalling, N.P.,
(NPI: 1114971033),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-13-1016
Decision No. CR2971

Date: October 28, 2013

DECISION

Petitioner, Ian Smalling, N.P., is a family nurse practitioner who applied for enrollment in
the Medicare program. The Centers for Medicare & Medicaid Services (CMS) granted
his application, effective October 9, 2012. Petitioner now challenges that effective date.

For the reasons set forth below, I find that CMS appropriately granted Petitioner’s
enrollment effective October 9, 2012.

Background

Petitioner is a family nurse practitioner and member of the Oakbend Medical Group. On
December 27, 2011, he submitted an enrollment application (form CMS 855R) to the
(then) Medicare contractor, Trailblazer Health Enterprises, LLC, and asked that his
benefits be reassigned to the group practice. CMS Ex. 1. The application was signed by
Petitioner and by Donna Ferguson, as the “authorized official” for the group practice, i.e.,
the individual whose signature legally and financially binds that supplier. CMS Ex. 1 at
4. However, according to the contractor’s records, Donna Ferguson was not the
practice’s authorized official. She had tried to add her name to the supplier’s approved
list, but the form she signed and submitted to the contractor was outdated and therefore

unacceptable. For this reason, and because the contractor had not received some
additional requested information, the contractor denied the application, although it
offered Petitioner the opportunity to submit a corrective action plan. CMS Ex. 9.

Petitioner submitted a second application (form CMS 855R), which the current
contractor, Novitas Solutions, Inc., received on October 9, 2012. CMS Ex. 2. The
practice’s regional practice manager signed as the authorized official. CMS Ex. 2 at 9.
The contractor approved this application, with an effective date of October 9, 2012.

Petitioner sought reconsideration challenging that effective date. In a reconsidered
determination dated May 17, 2013, a contractor hearing specialist affirmed the October 9
effective date. CMS Ex. 3. Petitioner requested a hearing before an administrative law
judge (ALJ), and the matter was assigned to me. | issued a prehearing order directing the
parties to submit written briefs, lists of proposed witnesses and proposed exhibits. I
directed the parties to include, as an exhibit, the written direct testimony of any proposed
witness. Acknowledgment and Pre-hearing Order (July 18, 2013). With its brief, CMS
submitted nine exhibits (CMS Exs. 1-9). CMS listed no witnesses and provided no
witness declarations.

In the absence of any objections, I admit into evidence CMS Exhibits 1-9.

Petitioner submitted three exhibits (P. Exs. 1-3), including the written declaration of one
proposed witness (P. Ex. 3). CMS has objected to my admitting Petitioner’s Exhibits |
and 2, because these documents were not submitted at the contractor level of review.
Under the regulations governing these proceedings, I may admit new documentary
evidence only if I find good cause for the Petitioner’s submitting the evidence for the first
time at the ALJ level. 42 C.F.R. §498.56(e). Ineed not rule on the good cause question,
iowever, because the regulations also direct me to admit only evidence that is relevant
and material; I find that Petitioner’s proposed exhibits are not relevant or material.

42 C.F.R. 498.60. Petitioner’s Exhibits | and 3 challenge the contractor’s denial of
Petitioner’s December 27, 2011 enrollment application. As discussed below, I have no
authority to review that determination.

Petitioner’s Exhibit 2 is a list of claims for services the practice provided before the
effective date of Petitioner’s (and his colleagues’) Medicare enrollments. That he may
ave provided otherwise-reimbursable services to Medicare beneficiaries for which the
practice will not be reimbursed is irrelevant. A prospective supplier is simply not entitled
to Medicare payment for those services because he was not enrolled in the program when
e provided them. See US Ultrasound, DAB No. 2302, at 8 (2010).

I therefore decline to admit Petitioner’s Exhibits 1-3.
Because there are no witnesses to cross-examine, an in-person hearing would serve no
purpose, I close the record and decide the case. See Acknowledgment and Pre-hearing
Order at 6 Ff 10-11.

Discussion

I. CMS properly determined the effective date for
Petitioner’s Medicare enrollment, because the evidence
establishes that he submitted his subsequently-approved
enrollment application on October 9, 2012, and his
effective date can be no earlier than the date he filed that
enrollment application.'

To receive Medicare payments for services furnished to program beneficiaries, a
Medicare supplier must be enrolled in the Medicare program. 42 C.F.R. § 424.505.
“Enrollment” is the process used by CMS and its contractors to: 1) identify the
prospective supplier; 2) validate the supplier’s eligibility to provide items or services to
Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location;
and 4) grant the supplier Medicare billing privileges. 42 C.F.R. § 424.502. To enroll in
Medicare, a prospective supplier must complete and submit an enrollment application.

42 C.F.R. §§ 424.510(d)(1), 424.515(a). An enrollment application is either a CMS-
approved paper application or an electronic process approved by the Office of
Management and Budget. 42 C.F.R. § 424.502.

When CMS determines that a physician or nonphysician practitioner meets the applicable
enrollment requirements, it grants him Medicare billing privileges, which means that he
can submit claims and receive payments from Medicare for covered services provided to
program beneficiaries. For physicians and nonphysician practitioners, the effective date
for billing privileges “‘is the /ater of the date of filing” a subsequently approved
enrollment application or “the date an enrolled physician or nonphysician practitioner
first began furnishing services at a new practice location.” 42 C.F.R. § 424.520(d)
(emphasis added).”

Thus, pursuant to 42 C.F.R. 424.520(d), Petitioner’s effective date of enrollment is
October 9, 2012, the date he filed the application.

' My findings of fact/conclusions of law are set forth, in italics and bold, in the
discussion captions of this decision.

> Ifa physician meets all program requirements, CMS allows him to bill retrospectively
for up to “30 days prior to their effective date if circumstances precluded enrollment in
advance of providing services to Medicare beneficiaries.” 42 C.F.R. § 424.521(a)(1).
2. I have no authority to review the contractor’s denial of Petitioner’s
December 27, 2011 application, because Petitioner did not request
reconsideration of that denial, and I may only review reconsidered
determinations.

Petitioner nevertheless argues that, when his December 2011 application was signed and
filed, Donna Ferguson was, in fact, the duly appointed authorized or delegated official.
According to Petitioner, the contractor should therefore have approved that application,
which would have made Petitioner’s Medicare enrollment effective December 27, 2011.
But Petitioner has waived his right to challenge the contractor’s denial of his December
27 application, because he did not timely appeal that determination.

CMS’s determination to deny a supplier’s Medicare enrollment is an “initial
determination” that is subject to review under the procedures set forth in 42 C.F.R. Part
498. 42 C.F.R. §§ 498.3(a)(1), (b)(17). An initial determination is binding unless
reconsidered or otherwise reversed or modified. 42 C.F.R. § 498.20(b).

A supplier or prospective supplier dissatisfied with an initial determination may request
reconsideration by filing a written request within 60 days from receipt of the notice of the
initial determination. 42 C.F.R. §§ 498.5(d)(1), 498.5(I)(1), 498.22. If CMS (or its
contractor) receives a properly-filed request for reconsideration, it makes a reconsidered
determination affirming or modifying the initial determination. 42 C.F.R. § 498.24(c). A
supplier or prospective supplier dissatisfied with a reconsidered determination is entitled
to a hearing before an ALJ. 42 C.F.R. §§ 498.5(d)(2), 498.5(1)(2). The regulations do
not provide for a hearing in the absence of a reconsidered determination. Denise A.
Hardy, D.P.M., DAB No. 2464, at 4-5 (2012); Hiva Vakil, DAB No. 2460, at 4-5 (2012).

In its February 28, 2012 notice, which advised Petitioner that his application was denied,
the contractor also told Petitioner that, if he disagreed, he could request reconsideration
before a contractor hearing officer. It warned that “[flailure to timely request a
reconsideration is deemed a waiver of all rights to further administrative review.” CMS
Ex. 9. Petitioner did not request reconsideration. The contractor’s denial of his
December 2011 application is therefore binding and not reviewable in this forum.

Conclusion

Because Petitioner’s approved enrollment application was filed on October 9, 2012, the
contractor properly granted his Medicare enrollment effective that date.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Neb Group of Arizona LLC,
(Supplier No.: 5340910002; NPI 1871551903),
Petitioner,
v.
Centers for Medicare & Medicaid Services.

Docket No. C-13-705
Decision No. CR2970

Date: October 25, 2013

DECISION

The Medicare enrollment and billing privileges of Petitioner, Neb Group of Arizona
LLC, are revoked pursuant to 42 C.F.R. §§ 424.57(d) and 424.535(a)(5)(ii),! effective
December 4, 2012.

I. Background

The Supplier Audit and Compliance Unit (SACU) of the National Supplier
Clearinghouse, operated by Palmetto GBA (Palmetto), a Medicare contractor, notified

' References are to the 2012 revision of the Code of Federal Regulations (C.F.R.), unless
otherwise indicated.

> ‘The National Supplier Clearinghouse is the contractor responsible for enrollment and
re-enrollment of Durable Medical Equipment, Orthotics, Prosthetics, and Supplies
(DMEPOS) suppliers. 42 C.F.R. § 424.57(a).
Petitioner by letter dated January 4, 2013, that Petitioner’s DMEPOS supplier number*
was revoked effective December 4, 2012. Palmetto advised Petitioner that its DMEPOS
supplier number was revoked pursuant to 42 C.F.R. § 424.535(a)(1) and (5)(ii) based on
noncompliance with supplier standard 42 C.F.R. § 424.57(c)(7). Palmetto advised
Petitioner that, pursuant to 42 C.F.R. § 424.535(g), the effective date of revocation was
December 4, 2012, the date on which CMS determined that Petitioner’s practice location
was not operational. Palmetto advised Petitioner that it was subject to a two year ban on
re-enrollment pursuant to 42 C.F.R. § 424.535(c). Palmetto further advised Petitioner
that it could request reconsideration of the revocation. CMS Exhibit (CMS Ex.) | at 30-
35, 63-65.

Petitioner requested reconsideration on February 15, 2013.* CMS Ex. | at 37. The
reconsideration decision dated March 22, 2013, upheld the revocation of Petitioner’s
billing privileges. The Medicare hearing officer concluded that Petitioner failed to show
compliance with Supplier Standard 7 (42 C.F.R. § 424.57(c)(7)). CMS Ex. 1 at 1-5.

Petitioner timely filed a request for a hearing before an administrative law judge (ALJ) o
April 29, 2013, and included evidence related to its CAP. On May 7, 2013, the case was
assigned to me for hearing and decision and an Acknowledgement and Prehearing Order
(Prehearing Order) was issued at my direction. CMS filed a combined prehearing brief
and motion for summary judgment (CMS Br.) with CMS Exs. | and 2 on June 6, 2013.
Petitioner filed a responsive pleading (P. Br.) with no exhibits on July 13, 2013. CMS
advised me by letter dated August 5, 2013, that it waived filing a reply brief. Petitioner

5

> Palmetto referred to revocation of Petitioner's “supplier number,” also known as a
“billing number,” but it is the revocation of Petitioner’s billing privileges associated with
its billing or supplier number that is at issue. A DMEPOS supplier must have a supplier
number, which conveys billing privileges, in order to be paid by Medicare for the
delivery of a Medicare-covered item to a Medicare eligible beneficiary. 42 C.F.R. §
424.57(b)(2). Revocation of a DMEPOS supplier’s billing or supplier number is
revocation of the supplier’s billing privileges and ends the supplier’s participation in
Medicare until such time as the supplier can again qualify to participate. 42 C.F.R. §§
424.57(d); 424.502; 424.535(a) and (c).

* Petitioner submitted a Corrective Action Plan (CAP) on January 21, 2013. CMS Ex. 1
at 39-74. Palmetto notified Petitioner by letter dated February 4, 2013, that Petitioner’s
CAP was being returned because Petitioner failed to request reconsideration of the initial
determination to revoke Petitioner’s billing privileges. CMS Ex. | at 38. However, as
discussed hereafter, no right of review is triggered by the rejection or denial of the CAP,
and I have no authority to review the contractor’s actions related to the CAP.

did not object to my consideration of CMS Exs. | and 2 which are admitted and
considered as evidence. Evidence submitted by Petitioner with its request for hearing
related to its CAP is not admitted and considered as evidence, as it is not relevant to any
issue that I may decide or duplicates and is cumulative of CMS evidence.

IL. Discussion
A. Statutory and Regulatory Program Requirements

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

The Act requires the Secretary of Health and Human Services (Secretary) to issue
regulations that establish a process for the enrollment in Medicare of providers and
suppliers, including the right to a hearing and judicial review of certain enrollment
determinations such as revocation of enrollment and billing privileges. Act § 1866(j)
(42 U.S.C. § 1395ce(j)).

Pursuant to 42 C.F.R. §§ 424.57 and 424.505, a DMEPOS supplier such as Petitioner
must be enrolled in the Medicare program to be reimbursed for DME or POS sold or
rented to Medicare beneficiaries. Participation in Medicare imposes obligations upon a
supplier. Suppliers must submit complete, accurate and truthful responses to all
information requested in the enrollment application. 42 C.F.R. § 424.510(d)(2).

> A “supplier” furnishes services under Medicare and includes 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) (42 U.S.C.

§ 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(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. A DMEPOS supplier generally
sells or rents durable medical equipment (DME), prosthetics orthotics, or supplies (POS)
as defined by section 1861(n) of the Act. 42 C.F.R. § 424.57(a).
Pursuant to 42 C.F.R. §§ 424.502 and 424.510(d)(3), a supplier’s application to enroll in
Medicare must be signed by an authorized official, i.e., one with authority to bind the
provider or supplier both legally and financially. The regulation provides that the
signature attests to the accuracy of information provided in the application. The signature
also attests to the fact that the provider or supplier is aware of and abides by all
applicable statutes, regulations, and program instructions. 42 C.F.R. § 424.510(d)(3).
DMEPOS suppliers have additional conditions imposed by 42 C.F.R. § 424.54(b) to be
eligible for payment from Medicare for DMEPOS provided to Medicare-eligible
beneficiaries: (1) the supplier must have submitted a completed application and
enrollment form for each separate physical location it uses to furnish DMEPOS, except
those used solely as warehouses or repair facilities; (2) the DMEPOS item for which
reimbursement is sought must have been furnished to the Medicare beneficiary on or
after the date CMS granted the supplier billing privileges as reflected by the supplier
number, with one supplier number issued for each of the supplier’s locations; (3) billing
privileges must not have been revoked and the supplier not excluded from Medicare
during the period when the DMEPOS item was furnished; (4) the supplier has a state
issued license to dispense drugs if the DMEPOS requires administration of a drug; and
(5) the supplier provides CMS all information and documents necessary to process the
claim. A DMEPOS supplier must also meet at the time of application and continue to
meet thereafter the 30 supplier certification standards established by 42 C.F.R.

§ 424.57(c). Once enrolled, the supplier receives billing privileges and is issued the
billing or supplier number that is required to receive payment for DMEPOS furnished to
a Medicare beneficiary. There is no issue in this case that Petitioner was enrolled in
Medicare as a DMEPOS supplier.

The Secretary has delegated authority to CMS or its Medicare contractor to revoke an
enrolled provider or supplier’s Medicare enrollment and billing privileges and any
provider or supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535.
Noncompliance with enrollment requirements, such as those established by 42 C.F.R.

§ 424.57 for DMEPOS suppliers, is a basis for revocation of billing privileges and
enrollment in Medicare. 42 C.F.R. § 424.535(a)(1). Revocation is also authorized when
CMS determines, based on an on-site review, that a provider or supplier is no longer
operational to furnish Medicare covered items or services or is not meeting Medicare
enrollment requirements. 42 C.F.R. § 424.535(a)(5).

A provider or supplier that has been denied enrollment or whose enrollment and billing
privileges have been revoked has a right to request a hearing by an ALJ and further
review by the Departmental Appeals Board (Board). 42 C.F.R. §§ 424.545, 498.3(b)(17),
498.5. A hearing on the record, also known as an oral hearing, is required under the Act.
Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-751 (6th Cir. 2004). The
provider or supplier bears the burden to demonstrate that it meets enrollment
requirements with documents and records. 42 C.F.R. § 424.545(c).
B. Issues
Whether summary judgment is appropriate; and

Whether there was a basis for revocation of Petitioner’s billing privileges and
enrollment in Medicare.

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 has 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 373 F.3d at 748-51. 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 a 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 Board have long recognized the
availability of summary judgment in 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 the 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’l 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); //. 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 a 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, i.e., the movant’s evidence, would be sufficient to meet that party’s
evidentiary burden. Dumas Nursing & Rehab., L.P., DAB No. 2347, at 5 (2010); Zi.
Knights Templar Home, DAB No. 2274, at 8.

In deciding that summary judgment is appropriate in this case, I note that Petitioner
offered no affidavit or declaration in support of its response to CMS’s motion for
summary judgment. Nor did Petitioner challenge the sufficiency of the investigator’s
declaration (CMS Ex. 1, at 20) and CMS’s other evidence. In fact, Petitioner admitted in
its response to the CMS motion that it was not in compliance with the Medicare
requirements during the two site-visits. P. Br. at 1. I conclude, as discussed hereafter,
that there is no dispute as to any material fact in this case 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 and application of the law to the undisputed facts of this case. The
issues in this case must be resolved against Petitioner as a matter of law as discussed
hereafter. Accordingly, I conclude summary judgment is appropriate and the decision on
summary judgment is dispositive of all issues in this case obviating the need for a
hearing.

2. There is a basis for revocation of Petitioner’s billing privileges
pursuant to 42 C.F.R. § 424.57(d) for noncompliance with 42 C.F.R.
§ 424.57(c)(7) (Supplier Standard 7).

3. There is a basis for revocation of Petitioner’s billing privileges
pursuant to 42 C.F.R. § 424.535(a)(5).

a. Facts

The facts are undisputed. On Monday, December 3, 2012, at approximately 9:10 a.m., a
SACU inspector attempted to conduct an unannounced site inspection at Petitioner’s
facility located at 8260 E. Raintree Dr., Suite 119, Scottsdale, Arizona 85260-2516.
CMS Ex. 1, at 15. The attempt was made during Petitioner’s posted hours of operation,
which were Monday through Wednesday, 9:00 a.m. to 5:00 p.m., Thursdays, 9:00 a.m. to
3:00 p.m., and closed Fridays and Saturdays. CMS Ex. | at 16. The inspector found that
she could not enter Petitioner premises. The inspector concluded that no one was at the
premises. CMS Ex. 1, at 20. On the entrance door was a sign stating:

Just Stepped Out
Be Back Soon!

If you need immediate attention

® The regulation uses the phrase “application certification standards” rather than
“supplier standards.” 42 C.F.R. § 424.57(c). CMS uses the phrase “supplier standards”
in its Medicare Program Integrity Manual, CMS pub. 100-08, § 15.24.9 (rev. 463, May
17, 2013). “Supplier Standard” as used in this decision refers to the 30 standards listed in
42 CFR. § 424.57(c).
please call 480.595.7272 ext.8 and
someone will be able to help you.

CMS Ex. | at 20, 25, 28.

On Tuesday, December 4, 2012, at approximately 1:44 p.m., the SACU inspector made a
second attempt to enter Petitioner’s premises. She noticed that the same sign she
observed on December 3 was posted on the door. The inspector took date-stamped
photographs on both days of both the front door and the posted hours of operation with
the posted out-of-office sign. CMS Ex. | at 20, 25, 28.

Palmetto notified Petitioner that its billing privileges were revoked by letter dated
January 4, 2013.

b. Analysis

CMS argues that revocation is appropriate in this case on two grounds: (1) Petitioner was
not in compliance with the supplier standards established by 42 C.F.R. § 424.57(c); and
(2) Petitioner was not incompliance with the Medicare enrollment requirement
established by 42 C.F.R. § 424.535(a)(5)(ii). CMS Br. at 2.

Supplier Standard 7 requires that a DMEPOS supplier maintain a physical facility that,
among other things, is accessible and staffed during posted hours of operation. 42 C.F.R.
§ 424.57(c)(7)(i)(C). Pursuant to 42 C.F.R. § 424.57(d), CMS is required to revoke a
DMEPOS supplier’s billing privileges if the supplier is found not to meet the standards
established by 42 C.F.R. § 424.57(b) or (c). The regulation provides that the revocation
is effective 15 days after the supplier is sent notice of the revocation.’ The language of
the regulation indicates that revocation is mandatory when there is noncompliance with
the supplier standards and there is no requirement that the supplier be given the
opportunity to submit a CAP.

Pursuant to 42 C.F.R. § 424.535(a)(5), CMS may revoke a supplier’s billing privileges if
CMS determines that the supplier is no longer operational to furnish Medicare covered
items or services, or has failed to satisfy any or all of the Medicare enrollment
requirements. 42 C.F.R. § 424.535(a)(5)(ii). The regulation requires that a supplier or

7 The regulation states that “[t]he revocation is effective 15 days after the entity is sent
notice of the revocation, as specified in § 405.875 of this subchapter.” There is, however,
no 42 C.F.R. § 405.875 and the regulatory reference is ignored. The requirements for
notice of an initial determination are set forth at 42 C.F.R. § 498.20 and for a
reconsideration determination at 42 C.F.R. § 498.25.
provider be given an opportunity to correct the deficient compliance before a final
determination to revoke billing privileges, except when the basis for revocation is 42
C.F.R. § 424.535(a)(2), (a)(3), or (a)(5), which provide generally as follows: (a)(2) the
provider or supplier or certain specified officers, owners, or employees are excluded,
debarred or suspended from participating in Medicare, Medicaid, or other federal health
care programs; (a)(3) the owner or the provider or supplier has a felony conviction within
a specified period; or (a)(5) based upon an on-site review, CMS determines that a
provider or supplier is no longer operational to furnish Medicare covered items and
services, or has failed to meet Medicare enrollment requirements, or has failed to furnish
Medicare covered items or services as required by law, which is the provision applicable
in this case. 42 C.F.R. § 424.535(a)(1).

The effective date of revocation of billing privileges of suppliers and providers
established by 42 C.F.R. § 424.535(g) is different from the effective date of revocation
for DMEPOS suppliers under 42 C.F.R. § 424.57(d). Generally, revocation is effective
30 days after CMS or the contractor mails the notice of revocation except in those
instances specified by 42 C.F.R. § 424.535(a)(2), (a)(3), and (a)(5). In the case of 42
C.F.R. § 424.535(a)(5), the revocation is effective the date the supplier is no longer
operational as determined by CMS.

The parties were advised by my Prehearing Order § LIC that the issue before me is:

Whether Petitioner met the requirements for participation in
Medicare when the reconsideration decision was made. 73
Fed. Reg. 36,448, 36,452 (June 27, 2008).

The formulation of the issue is based on the discussion in the Federal Register of the
scope of review available to a provider or supplier whose Medicare enrollment is denied
or revoked. The pertinent discussion is as follows:

When a Medicare contractor makes an adverse enrollment
determination (for example, enrollment denial or revocation
of billing privileges), providers and suppliers are afforded
appeal rights. However, these appeal rights are limited to
provider or supplier eligibility at the time the Medicare
contractor made the adverse determination. Thus, if a
Medicare contractor determines that a provider or supplier
does not meet State licensure requirements on June 1, 2007, it
is the provider’s responsibility to demonstrate during the
appeals process that State licensure requirements were met on
June 1, 2007. Conversely, if a provider only can demonstrate
that State licensure requirements were met on a later date;
such as, August 16, 2007, we believe that the contractor made

the correct determination, and that the provider or supplier
may reapply for Medicare billing privileges. Accordingly, a
provider or supplier is required to furnish the evidence that
demonstrates that the Medicare contractor made an error at
the time an adverse determination was made, not that the
provider or supplier is now in compliance. Thus, we believe
that it is essential that providers and suppliers submit
documentation that supports their eligibility to participate in
the Medicare program during the reconsideration step of the
provider enrollment appeals process. This will allow a
hearing officer to review and make a decision using all
applicable facts. Moreover, the early presentation of
evidence will help to ensure an efficient and effective
administrative appeals process.

Id. (emphasis added). This regulatory history could be interpreted to mean that a
provider or supplier must show that it was in compliance with enrollment requirements as
of the date of the initial determination by CMS or its contractor. But such specific
language was not used by the drafters. Rather, the language chosen by the drafters refers
to “the adverse determination.” In this case the Medicare contractor, Palmetto, issued
both an adverse initial determination and an adverse reconsideration determination. CMS
Ex. | at 1-5, 30-35, 63-65. The Federal Register discussion does not specify which
adverse Medicare contractor decision should be the focus at hearing. It may also be
argued that the focal point of a hearing should be the effective date of the revocation
rather than the initial determination date. The example cited by the drafters focuses on
the date of the revocation, i.e., the date on which a supplier no longer met state licensure
requirements, which would necessarily be a date prior to any adverse determination by
CMS or its contractor. The regulation specifically lists several grounds for revocation,
such as license suspension or revocation, conviction of a felony, or ceasing operations,
when the date of revocation may be earlier than the date of the initial determination.

42 C.F.R. § 424.535(g). In this case, the effective date of revocation is the date on which
Petitioner was found to be closed or not operational and not the date of either the adverse
initial or reconsideration determinations.

I conclude based on my review of the regulations and the regulatory history, that the
regulatory history is incorrect in stating that “appeal rights are limited to provider or
supplier eligibility at the time the Medicare contractor made the adverse determination.”
What is really at issue in this case is whether or not there was a basis for revocation of
Petitioner’s billing privileges on the effective date of the revocation. A related issue in
this case is whether or not the effective date was determined consistent with the
regulations. There is no challenge to the adequacy of the notice in this case and no
assertion the notice failed to satisfy 42 C.F.R. § 498.20.
The undisputed facts in this case establish that Petitioner’s practice location was not open
and available to the public, or for the SACU inspector to conduct an inspection, on either
December 3 or 4, 2012, during posted office hours. Petitioner concedes in its brief that
its office was not open when the SACU inspector attempted to inspect Petitioner’s
facility on December 3, 2012 and again on December 4, 2012; and that it was not in
compliance with Supplier Standard 7 on those dates. P. Br. at 1. Accordingly, I conclude
that CMS has made a prima facie showing that Petitioner was not in compliance with
Supplier Standard 7, specifically 42 C.F.R. § 424.57(c)(7)(i)(C), because it is admitted
and undisputed that the Petitioner’s practice location was not accessible and staffed
during posted hours of operation. Petitioner has not rebutted the prima facie showing or
presented an affirmative defense. Section 424.57(d) of Title 42 provides that “CMS will
revoke” the billing privileges of a supplier that is found not to meet the standards
established by 42 C.F.R. § 424.57(c). Thus, CMS has no discretion not to revoke
Petitioner’s billing privileges because there is an admitted violation of 42 C.F.R.

§ 424.57(c)(7)(i)(C).

Pursuant to 42 C.F.R. § 424.57(d), the effective date of the revocation based on the
failure to comply with 42 C.F.R. § 424.57(c)(7)(i)(C) would be 15 days after notice of the
revocation, i.e., approximately January 19, 2013. However, in this case CMS revoked
Petitioner’s billing privileges effective December 4, 2012, which would be an effective
date authorized by 42 C.F.R. § 424.535(g) under the limited circumstances specified by
that regulation. Therefore, it is necessary to consider whether there was a basis for CMS
to conclude that Petitioner was not operational as of December 4, 2012.

Operational means the provider or supplier has a qualified
physical practice location, is open to the public for the
purpose of providing health care related services, is prepared
to submit valid Medicare claims, and is properly staffed,
equipped, and stocked (as applicable, based on the type of
facility or organization, provider or supplier specialty, or the
services or items being rendered), to furnish these items or
services.

42 C.F.R. § 424.502 (emphasis in original). Again, there is no dispute that the SACU
investigator found on December 3 and 4, 2012, that Petitioner’s practice location was not
opened during posted hours of operation. Accordingly, CMS had a legitimate basis to
determine that Petitioner was not operational within the meaning of 42 C.F.R. § 424.502
as of December 4, 2012, and there is a basis for revocation pursuant to 42 C.F.R.

§ 424.535(a)(5)(ii). Although Petitioner has argued that it implemented a CAP, and there
is evidence that it did so, Petitioner has not presented evidence to permit me to determine
when Petitioner was last operational prior to or after the times the surveyor visited on
December 3 and 4, 2012. I conclude that Petitioner has not met its burden to rebut the
prima facie case of a basis for revocation by showing that it was operational.

Accordingly, I conclude that CMS and Palmetto had legitimate bases to revoke
Petitioner’s billing privileges and participation in Medicare as a DMEPOS supplier based
on a violation of both 42 C.F.R. §§ 424.57(c)(7)(i)(C) and 424.535(a)(5)(ii). also
conclude that revocation effective December 4, 2012, was correctly determined pursuant
to 42 C.F.R. § 424.535(g), as there was a proper basis for revocation pursuant to 42
CFR. § 424.535(a)(5)(ii).

4. There is no regulatory requirement that a supplier be granted an
opportunity to submit a CAP or correct deficient compliance prior to
revocation pursuant to 42 C.F.R. § 424.57(d).

5. Petitioner had no right to review of the contractor’s rejection or
denial of Petitioner’s CAP and I have no authority to grant such
review.

6. Ihave no authority to grant equitable relief.

Petitioner argues in its request for hearing and brief, and there is evidence, that Petitioner
created and implemented a CAP. In this case, the CAP has no impact on the decision.

Pursuant to 42 C.F.R. § 424.57(d), CMS is required to revoke a DMEPOS supplier’s
billing privileges if the supplier is found not to meet the standards established by 42
C.F.R. § 424.57(b) or (c). The language of the regulations indicates that revocation is
mandatory when there is noncompliance with the supplier standards and there is no
requirement that the supplier be given the opportunity to submit a CAP. When
revocation is pursuant to 42 C.F.R. § 424.535(a)(5), the regulations specify that a
provider or supplier need not be given an opportunity to correct deficient compliance
prior to the final determination to revoke billing privileges. 42 C.F.R. § 424.535(a)(1).
The Board has also determined in prior cases that no right to ALJ or Board review is
triggered by the rejection or denial of a CAP. DMS Imaging, Inc., DAB No. 2313, at 7-
10 (2010) citing 72 Fed. Reg. 9,479, at 9,483 (March 2, 2007) (carrier’s refusal to
reinstate billing privileges based on the submission of a CAP is not an initial
determination subject to ALJ review) and 73 Fed. Reg. 36,448, at 36,452 (June 27, 2008).
Finally, neither an ALJ nor the Board have the authority to grant equitable relief but are
limited to determining whether or not CMS had a legal basis to revoke a provider’s or
supplier’s billing privileges. Letania Bussell, M.D., DAB No. 2196, at 12-13 (2008).
Therefore, Petitioner’s request for probationary status and consideration of extenuating
circumstances (P. Br. at 1-2), may not be granted.

II. Conclusion

For the foregoing reasons, Petitioner’s Medicare enrollment and billing privileges were
properly revoked effective December 4, 2012, due to noncompliance with 42 C.F.R.
§§ 424.57(c)(7)(i)(C) and 424.535(a)(5)(ii).

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Pranav Shukla, M.D.,
(NPI: 1578735130),
Petitioner,
v.
Centers for Medicare & Medicaid Services.

Docket No. C-13-1022
ALJ Ruling No. 2014-7

Date: October 25, 2013

DISMISSAL

Petitioner, Pranav Shukla, challenges the effective date of his participation in the
Medicare program. The Centers for Medicare & Medicaid Services (CMS) moves to
dismiss his appeal. CMS argues that Petitioner has no right to a hearing before an
administrative law judge (ALJ), because he has not obtained an initial determination.

For the reasons set forth below, I grant CMS’s motion and dismiss this case pursuant to
42 CFR. § 498.70(b).

Background

Petitioner is an emergency room physician and member of the Oakbend Medical Group.
In an application (CMS-855R) dated October 9, 2012, he applied for enrollment in the
Medicare program and asked that his benefits be reassigned to the group practice. CMS
Ex. 1. Apparently, other members of the practice filed similar applications at about the
same time.
In a letter dated June 17, 2013, the Medicare contractor, Novitas Solutions, Inc., advised
Petitioner that his enrollment application had been rejected because Novitas “requested
new signature in section 4A and 4B of the CMS-855R application.” CMS Ex. 2. The
notice advised him that, “[i]f you would like to resubmit an application, you must
complete a new Medicare enrollment application(s),” and that “providers and suppliers
are required to submit complete application(s) and all supporting documentation within
30 calendar days from the postmark date of the contractor request for missing/incomplete
information.” CMS Ex. 2. It is not clear from the record whether Petitioner attempted to
cure the defects in his enrollment application. The notice did not establish an effective
date for Petitioner’s billing privileges.

Apparently, one of Petitioner’s medical group colleagues, Ian Smalling, NP, had earlier
received a letter approving his Medicare application. He disagreed with the effective date
and requested reconsideration on January 15, 2013, which was well before the contractor
issued its rejection of Petitioner’s application. CMS Ex. 4. Petitioner (along with other
members of the medical practice) attempted to join Mr. Smalling’s reconsideration
request. However, Petitioner could not then validly request reconsideration, because the
contractor had not issued an initial determination. See 42 C.F.R. §§ 498.5(d)(1);
498.5(1)(1); 498.22, and discussion below.

In a letter dated May 17, 2013, the contractor’s hearing specialist issued its reconsidered
determination in Mr. Smalling’s case. CMS Ex. 5. Although the letter refers to similar
initial determinations issued to other members of the practice, it states that “‘a formal
decision is not rendered in this letter for [those] providers.” CMS Ex. 5 at 1.

In a letter dated June 20, 2013, Petitioner requested an ALJ hearing to challenge the
effective date of his enrollment. CMS now moves to dismiss that hearing request.

Discussion

To receive Medicare payments for services furnished to program beneficiaries, a
Medicare supplier must be enrolled in the Medicare program. 42 C.F.R. § 424.505. To
enroll in Medicare, a prospective supplier must complete and submit an enrollment
application. 42 C.F.R. §§ 424.510(d)(1); 424.515(a). When CMS determines that a
supplier meets the applicable enrollment requirements, it grants him Medicare billing
privileges.

CMS’s determination as to the effective date of enrollment is an “initial determination”
that is subject to review under the procedures set forth in 42 C.F.R. Part 498. 42 C.F.R.
§§ 498.3(1), (b)(15). An initial determination is binding unless reconsidered or otherwise
reversed or modified. 42 C.F.R. § 498.20(b).
An affected provider or supplier may only request reconsideration of an enumerated
initial determination, which it may do by filing a written request within 60 days from
receipt of the notice of the initial determination. 42 C.F.R. §§ 498.5(d)(1); 498.5(D(1);
498.22. If CMS (or its contractor) receives a properly-filed request for reconsideration, it
makes a reconsidered determination affirming or modifying the initial determination. 42
C.F.R. § 498.24(c). A supplier or prospective supplier dissatisfied with a reconsidered
determination is entitled to a hearing before an ALJ. 42 C.F.R. §§ 498.5(d)(2);
498.5(1)(2). The regulations do not provide for a hearing in the absence of a reconsidered
determination. Denise A. Hardy, D.P.M., DAB No. 2464 at 4-5 (2012); Hiva Vakil, DAB
No. 2460 at 4-5 (2012).

Petitioner criticizes the Medicare contractor for not including his claim in the Smalling
determination. I find this wholly without merit (and not reviewable by me). A Medicare
contractor is certainly free to consider individual applications individually. Moreover,
there was no initial determination for Petitioner that the contractor could reconsider.

Petitioner also argues that “[w]hile Novitas was aware of the consolidated request for
reconsideration, Novitas failed to send proper notice to [Petitioner’s counsel] of the
different letters and notices addressed to the rest of the providers.” P. Supp. Resp. and
Opp. at 2. Petitioner’s counsel argues that if he received notice (which his client actually
did, see CMS Ex. 3, at 1), he would have filed a separate reconsideration request on
Petitioner’s behalf. That argument is not relevant here because Petitioner never received
an initial determination for which Petitioner’s counsel could request reconsideration.

I am authorized to dismiss a hearing request if the party requesting review does not have
aright to a hearing. 42 C.F.R. § 498.70(b).

Conclusion

Because neither CMS nor its contractor issued an initial determination in this case,
Petitioner does not have a right to an ALJ hearing. I therefore dismiss his hearing request
pursuant to 42 C.F.R. 498.70(b).

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Wasim Sheikh, M.D.,
(NPI: 1407883788),
Petitioner,
v.
Centers for Medicare & Medicaid Services.

Docket No. C-13-1021
ALJ Ruling No. 2014-6

Date: October 25, 2013

DISMISSAL

Petitioner, Wasim Sheikh, challenges the effective date of his participation in the
Medicare program. The Centers for Medicare & Medicaid Services (CMS) moves to
dismiss his appeal. CMS argues that Petitioner has no right to a hearing before an
administrative law judge (ALJ), because he has not obtained an initial determination.

For the reasons set forth below, I grant CMS’s motion and dismiss this case pursuant to
42 CFR. § 498.70(b).

Background

Petitioner is an emergency room physician and member of the Oakbend Medical Group.
In an application (CMS-855R) dated October 9, 2012, he applied for enrollment in the
Medicare program and asked that his benefits be reassigned to the group practice. CMS
Ex. 1. Apparently, other members of the practice filed similar applications at about the
same time.
In a letter dated June 17, 2013, the Medicare contractor, Novitas Solutions, Inc., advised
Petitioner that his enrollment application had been rejected because a “new signature
[was] requested for section 4A and 4B.” CMS Ex. 2. The notice advised him that, “[i]f
you would like to resubmit an application, you must complete a new Medicare enrollment
application(s),” and that “providers and suppliers are required to submit complete
application(s) and all supporting documentation within 30 calendar days from the
postmark date of the contractor request for missing/incomplete information.” CMS Ex.

2. It is not clear from the record whether Petitioner attempted to cure the defects in his
enrollment application. The notice did not establish an effective date for Petitioner’s
billing privileges.

Apparently, one of Petitioner’s medical group colleagues, Ian Smalling, NP, had earlier
received a letter approving his Medicare application. He disagreed with the effective date
and requested reconsideration on January 15, 2013, which was well before the contractor
issued its rejection of Petitioner’s application. CMS Ex. 4. Petitioner (along with other
members of the medical practice) attempted to join Mr. Smalling’s reconsideration
request. However, Petitioner could not then validly request reconsideration, because the
contractor had not issued an initial determination. See 42 C.F.R. §§ 498.5(d)(1);
498.5(1)(1); 498.22, and discussion below.

In a letter dated May 17, 2013, the contractor’s hearing specialist issued its reconsidered
determination in Mr. Smalling’s case. CMS Ex. 5. Although the letter refers to similar
initial determinations issued to other members of the practice, it states that “‘a formal
decision is not rendered in this letter for [those] providers.” CMS Ex. 5 at 1.

In a letter dated June 20, 2013, Petitioner requested an ALJ hearing to challenge the
effective date of his enrollment. CMS now moves to dismiss that hearing request.

Discussion

To receive Medicare payments for services furnished to program beneficiaries, a
Medicare supplier must be enrolled in the Medicare program. 42 C.F.R. § 424.505. To
enroll in Medicare, a prospective supplier must complete and submit an enrollment
application. 42 C.F.R. §§ 424.510(d)(1); 424.515(a). When CMS determines that a
supplier meets the applicable enrollment requirements, it grants him Medicare billing
privileges.

CMS’s determination as to the effective date of enrollment is an “initial determination”
that is subject to review under the procedures set forth in 42 C.F.R. Part 498. 42 C.F.R.
§§ 498.3(1), (b)(15). An initial determination is binding unless reconsidered or otherwise
reversed or modified. 42 C.F.R. § 498.20(b).
An affected provider or supplier may only request reconsideration of an enumerated
initial determination, which it may do by filing a written request within 60 days from
receipt of the notice of the initial determination. 42 C.F.R. §§ 498.5(d)(1); 498.5(D(1);
498.22. If CMS (or its contractor) receives a properly-filed request for reconsideration, it
makes a reconsidered determination affirming or modifying the initial determination. 42
C.F.R. § 498.24(c). A supplier or prospective supplier dissatisfied with a reconsidered
determination is entitled to a hearing before an ALJ. 42 C.F.R. §§ 498.5(d)(2);
498.5(1)(2). The regulations do not provide for a hearing in the absence of a reconsidered
determination. Denise A. Hardy, D.P.M., DAB No. 2464 at 4-5 (2012); Hiva Vakil, DAB
No. 2460 at 4-5 (2012).

Petitioner criticizes the Medicare contractor for not including his claim in the Smalling
determination. I find this wholly without merit (and not reviewable by me). A Medicare
contractor is certainly free to consider individual applications individually. Moreover,
there was no initial determination for Petitioner that the contractor could reconsider.

Petitioner also argues that “[w]hile Novitas was aware of the consolidated request for
reconsideration, Novitas failed to send proper notice to [Petitioner’s counsel] of the
different letters and notices addressed to the rest of the providers.” P. Supp. Resp. and
Opp. at 2. Petitioner’s counsel argues that if he received notice (which his client actually
did, see CMS Ex. 3, at 1), he would have filed a separate reconsideration request on
Petitioner’s behalf. That argument is not relevant here because Petitioner never received
an initial determination for which Petitioner’s counsel could request reconsideration.

I am authorized to dismiss a hearing request if the party requesting review does not have
aright to a hearing. 42 C.F.R. § 498.70(b).

Conclusion

Because neither CMS nor its contractor issued an initial determination in this case,
Petitioner does not have a right to an ALJ hearing. I therefore dismiss his hearing request
pursuant to 42 C.F.R. 498.70(b).

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Steven Randolph, M.D.,
(NPI: 1710901442),
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-13-1019
ALJ Ruling No. 2014-5

Date: October 25, 2013

DISMISSAL

Petitioner, Steven Randolph, challenges the effective date of his participation in the
Medicare program. The Centers for Medicare & Medicaid Services (CMS) moves to
dismiss his appeal. CMS argues that Petitioner has no right to a hearing before an
administrative law judge (ALJ), because he has not obtained a reconsidered
determination.

For the reasons set forth below, I grant CMS’s motion and dismiss this case pursuant to
42 CFR. § 498.70(b).

Background

Petitioner is an emergency room physician and member of the Oakbend Medical Group.
In applications (CMS-855R) dated October 9, 2012 and December 27, 2012, he applied
for enrollment in the Medicare program and asked that his benefits be reassigned to the

group practice. CMS Exs. 1-2. Apparently, other members of the practice filed similar
applications at about the same time.
In a letter dated February 7, 2013, the Medicare contractor, Novitas Solutions, Inc.,
advised Petitioner that his enrollment application had been approved with an effective
date of September 15, 2012. The notice advised him that, if he disagreed with the
established effective date, he could request reconsideration before a contractor hearing
officer. It warned that “[fJailure to timely request a reconsideration is deemed a waiver
of all rights to further administrative review.” CMS Ex. 3. Petitioner did not request
reconsideration.

Apparently, one of Petitioner’s medical group colleagues, Ian Smalling, NP, had earlier
received a similar letter approving his Medicare application. He disagreed with the
effective date and requested reconsideration on January 15, 2013, which was well before
the contractor issued its initial determination on Petitioner’s application. CMS Ex. 4.
Petitioner (along with other members of the medical practice) attempted to join Mr.
Smalling’s reconsideration request. However, Petitioner could not then validly request
reconsideration, because the contractor had not issued an initial determination. See 42
C.F.R. §§ 498.5(d)(1); 498.5(1)(1); 498.22, and discussion below.

In a letter dated May 17, 2013, the contractor’s hearing specialist issued its reconsidered
determination in Mr. Smalling’s case. CMS Ex. 5. Although the letter refers to similar
initial determinations issued to other members of the practice, including Petitioner, it
states that “a formal decision is not rendered in this letter for [those] providers.” CMS
Ex. 5 at 1.

In a letter dated June 20, 2013, Petitioner requested an ALJ hearing to challenge the
effective date of his enrollment. CMS now moves to dismiss that hearing request.

Discussion

To receive Medicare payments for services furnished to program beneficiaries, a
Medicare supplier must be enrolled in the Medicare program. 42 C.F.R. § 424.505. To
enroll in Medicare, a prospective supplier must complete and submit an enrollment
application. 42 C.F.R. §§ 424.510(d)(1); 424.515(a). When CMS determines that a
supplier meets the applicable enrollment requirements, it grants him Medicare billing
privileges. For physicians, the effective date for billing privileges “is the /ater of the date
of filing” a subsequently approved enrollment application or “the date an enrolled
physician . . . first began furnishing services at a new practice location.” 42 C.F.R. §
424.520(d) (emphasis added).

CMS’s determination as to the effective date of enrollment is an “initial determination”
that is subject to review under the procedures set forth in 42 C.F.R. Part 498. 42 C.F.R.
§§ 498.3(1), (b)(15). An initial determination is binding unless reconsidered or otherwise
reversed or modified. 42 C.F.R. § 498.20(b).

A supplier or prospective supplier dissatisfied with an initial determination may request
reconsideration by filing a written request within 60 days from receipt of the notice of the
initial determination. 42 C.F.R. §§ 498.5(d)(1); 498.5(1)(1); 498.22. If CMS (or its
contractor) receives a properly-filed request for reconsideration, it makes a reconsidered
determination affirming or modifying the initial determination. 42 C.F.R. § 498.24(c). A
supplier or prospective supplier dissatisfied with a reconsidered determination is entitled
to a hearing before an ALJ. 42 C.F.R. §§ 498.5(d)(2); 498.5(1)(2). The regulations do
not provide for a hearing in the absence of a reconsidered determination. Denise A.
Hardy, D.P.M., DAB No. 2464 at 4-5 (2012); Hiva Vakil, DAB No. 2460 at 4-5 (2012).

Petitioner criticizes the Medicare contractor for not including his claim in the Smalling
determination. I find this wholly without merit (and not reviewable by me). A Medicare
contractor is certainly free to consider individual applications individually.

Petitioner also claims that “[a]t no point were Petitioners informed by Novitas that they
needed to file separate and individual requests for reconsideration. ...” P. Resp. and
Opp. to CMS’s Motion to Dismiss at 2. This is not accurate. The contractor’s February 7
notice letter advised Petitioner that, unless he requested reconsideration of that
determination, he waived all rights to further administrative review.

Finally, Petitioner argues that “[w]hile Novitas was aware of the consolidated request for
reconsideration, Novitas failed to send proper notice to [Petitioner’s counsel] of the
different letters and notices addressed to the rest of the providers.” P. Supp. Resp. and
Opp. at 2. Petitioner’s counsel argues that if he received notice (which his client actually
did, see CMS Ex. 3, at 1), he would have filed a separate reconsideration request on
Petitioner’s behalf. That argument is not properly before me, but should have been made
to Novitas, pursuant to 42 C.F.R. § 498.22(d), which permits CMS or its contractor to
extend the time for filing a reconsideration request.

I am authorized to dismiss a hearing request if the party requesting review does not have
aright to a hearing. 42 C.F.R. § 498.70(b).

Conclusion

Because neither CMS nor its contractor issued a reconsidered determination in this case,
Petitioner does not have a right to an ALJ hearing. I therefore dismiss his hearing request
pursuant to 42 C.F.R. 498.70(b).

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Mohammad Hussain, M.D.,
(NPI: 1326019555),
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-13-1018
ALJ Ruling No. 2014-4

Date: October 25, 2013

DISMISSAL

Petitioner, Mohammad Hussain, challenges the effective date of his participation in the
Medicare program. The Centers for Medicare & Medicaid Services (CMS) moves to
dismiss his appeal. CMS argues that Petitioner has no right to a hearing before an
administrative law judge (ALJ), because he has not obtained a reconsidered
determination.

For the reasons set forth below, I grant CMS’s motion and dismiss this case pursuant to
42 CFR. § 498.70(b).

Background

Petitioner is an emergency room physician and member of the Oakbend Medical Group.
In applications (CMS-855R and CMS-855]) dated October 15, 2012, he applied for
enrollment in the Medicare program and asked that his benefits be reassigned to the
group practice. CMS Exs. 1-2. Apparently, other members of the practice filed similar
applications at about the same time.
Ina letter dated February 14, 2013, the Medicare contractor, Novitas Solutions, Inc.,
advised Petitioner that his enrollment application had been approved with an effective
date of September 15, 2012. The notice advised him that, if he disagreed with the
established effective date, he could request reconsideration before a contractor hearing
officer. It warned that “[fJailure to timely request a reconsideration is deemed a waiver
of all rights to further administrative review.” CMS Ex. 3. Petitioner did not request
reconsideration.

Apparently, one of Petitioner’s medical group colleagues, Ian Smalling, NP, had earlier
received a similar letter approving his Medicare application. He disagreed with the
effective date and requested reconsideration on January 15, 2013, which was well before
the contractor issued its initial determination on Petitioner’s application. CMS Ex. 4.
Petitioner (along with other members of the medical practice) attempted to join Mr.
Smalling’s reconsideration request. However, Petitioner could not then validly request
reconsideration, because the contractor had not issued an initial determination. See 42
C.F.R. §§ 498.5(d)(1); 498.5(1)(1); 498.22, and discussion below.

In a letter dated May 17, 2013, the contractor’s hearing specialist issued its reconsidered
determination in Mr. Smalling’s case. CMS Ex. 5. Although the letter refers to similar
initial determinations issued to other members of the practice, including Petitioner, it
states that “a formal decision is not rendered in this letter for [those] providers.” CMS
Ex. 5 at 1.

In a letter dated June 20, 2013, Petitioner requested an ALJ hearing to challenge the
effective date of his enrollment. CMS now moves to dismiss that hearing request.

Discussion

To receive Medicare payments for services furnished to program beneficiaries, a
Medicare supplier must be enrolled in the Medicare program. 42 C.F.R. § 424.505. To
enroll in Medicare, a prospective supplier must complete and submit an enrollment
application. 42 C.F.R. §§ 424.510(d)(1); 424.515(a). When CMS determines that a
supplier meets the applicable enrollment requirements, it grants him Medicare billing
privileges. For physicians, the effective date for billing privileges “is the /ater of the date
of filing” a subsequently approved enrollment application or “the date an enrolled
physician . . . first began furnishing services at a new practice location.” 42 C.F.R. §
424.520(d) (emphasis added).

CMS’s determination as to the effective date of enrollment is an “initial determination”
that is subject to review under the procedures set forth in 42 C.F.R. Part 498. 42 C.F.R.
§§ 498.3(1), (b)(15). An initial determination is binding unless reconsidered or otherwise
reversed or modified. 42 C.F.R. § 498.20(b).

A supplier or prospective supplier dissatisfied with an initial determination may request
reconsideration by filing a written request within 60 days from receipt of the notice of the
initial determination. 42 C.F.R. §§ 498.5(d)(1); 498.5(1)(1); 498.22. If CMS (or its
contractor) receives a properly-filed request for reconsideration, it makes a reconsidered
determination affirming or modifying the initial determination. 42 C.F.R. § 498.24(c). A
supplier or prospective supplier dissatisfied with a reconsidered determination is entitled
to a hearing before an ALJ. 42 C.F.R. §§ 498.5(d)(2); 498.5(1)(2). The regulations do
not provide for a hearing in the absence of a reconsidered determination. Denise A.
Hardy, D.P.M., DAB No. 2464 at 4-5 (2012); Hiva Vakil, DAB No. 2460 at 4-5 (2012).

Petitioner criticizes the Medicare contractor for not including his claim in the Smalling
determination. I find this wholly without merit (and not reviewable by me). A Medicare
contractor is certainly free to consider individual applications individually.

Petitioner also claims that “[a]t no point were Petitioners informed by Novitas that they
needed to file separate and individual requests for reconsideration. ...” P. Resp. and
Opp. to CMS’s Motion to Dismiss at 2. This is not accurate. The contractor’s February
14 notice letter advised Petitioner that, unless he requested reconsideration of that
determination, he waived all rights to further administrative review.

Finally, Petitioner argues that “[w]hile Novitas was aware of the consolidated request for
reconsideration, Novitas failed to send proper notice to [Petitioner’s counsel] of the
different letters and notices addressed to the rest of the providers.” P. Supp. Resp. and
Opp. at 2. Petitioner’s counsel argues that if he received notice (which his client actually
did, see CMS Ex. 3, at 1), he would have filed a separate reconsideration request on
Petitioner’s behalf. That argument is not properly before me, but should have been made
to Novitas, pursuant to 42 C.F.R. § 498.22(d), which permits CMS or its contractor to
extend the time for filing a reconsideration request.

I am authorized to dismiss a hearing request if the party requesting review does not have
aright to a hearing. 42 C.F.R. § 498.70(b).

Conclusion

Because neither CMS nor its contractor issued a reconsidered determination in this case,
Petitioner does not have a right to an ALJ hearing. I therefore dismiss his hearing request
pursuant to 42 C.F.R. 498.70(b).

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Alan Hand, M.D.,
(NPI: 1851391114),
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-13-1015
ALJ Ruling No. 2014-3

Date: October 25, 2013

DISMISSAL

Petitioner, Alan Hand, challenges the effective date of his participation in the Medicare
program. The Centers for Medicare & Medicaid Services (CMS) moves to dismiss his
appeal. CMS argues that Petitioner has no right to a hearing before an administrative law
judge (ALJ), because he has not obtained an initial determination.

For the reasons set forth below, I grant CMS’s motion and dismiss this case pursuant to
42 CFR. § 498.70(b).

Background

Petitioner is an emergency room physician and member of the Oakbend Medical Group.
In an application (CMS-855R) dated October 9, 2012, he applied for enrollment in the
Medicare program and asked that his benefits be reassigned to the group practice. CMS
Ex. 1. Apparently, other members of the practice filed similar applications at about the
same time.
In a letter dated June 17, 2013, the Medicare contractor, Novitas Solutions, Inc., advised
Petitioner that his enrollment application had been rejected because there were “new
signatures on section 4A and 4B of the CMS-855R application.” CMS Ex. 2. The notice
advised him that, “[i]f you would like to resubmit an application, you must complete a
new Medicare enrollment application(s),” and that “providers and suppliers are required
to submit complete application(s) and all supporting documentation within 30 calendar
days from the postmark date of the contractor request for missing/incomplete
information.” CMS Ex. 2. It is not clear from the record whether Petitioner attempted to
cure the defects in his enrollment application. The notice did not establish an effective
date for Petitioner’s billing privileges.

Apparently, one of Petitioner’s medical group colleagues, Ian Smalling, NP, had earlier
received a letter approving his Medicare application. He disagreed with the effective date
and requested reconsideration on January 15, 2013, which was well before the contractor
issued its rejection of Petitioner’s application. CMS Ex. 4. Petitioner (along with other
members of the medical practice) attempted to join Mr. Smalling’s reconsideration
request. However, Petitioner could not then validly request reconsideration, because the
contractor had not issued an initial determination. See 42 C.F.R. §§ 498.5(d)(1);
498.5(1)(1); 498.22, and discussion below.

In a letter dated May 17, 2013, the contractor’s hearing specialist issued its reconsidered
determination in Mr. Smalling’s case. CMS Ex. 5. Although the letter refers to similar
initial determinations issued to other members of the practice, it states that “‘a formal
decision is not rendered in this letter for [those] providers.” CMS Ex. 5 at 1.

In a letter dated June 20, 2013, Petitioner requested an ALJ hearing to challenge the
effective date of his enrollment. CMS now moves to dismiss that hearing request.

Discussion

To receive Medicare payments for services furnished to program beneficiaries, a
Medicare supplier must be enrolled in the Medicare program. 42 C.F.R. § 424.505. To
enroll in Medicare, a prospective supplier must complete and submit an enrollment
application. 42 C.F.R. §§ 424.510(d)(1); 424.515(a). When CMS determines that a
supplier meets the applicable enrollment requirements, it grants him Medicare billing
privileges.

CMS’s determination as to the effective date of enrollment is an “initial determination”
that is subject to review under the procedures set forth in 42 C.F.R. Part 498. 42 C.F.R.
§§ 498.3(1), (b)(15). An initial determination is binding unless reconsidered or otherwise
reversed or modified. 42 C.F.R. § 498.20(b).
An affected provider or supplier may only request reconsideration of an enumerated
initial determination, which it may do by filing a written request within 60 days from
receipt of the notice of the initial determination. 42 C.F.R. §§ 498.5(d)(1); 498.5(D(1);
498.22. If CMS (or its contractor) receives a properly-filed request for reconsideration, it
makes a reconsidered determination affirming or modifying the initial determination. 42
C.F.R. § 498.24(c). A supplier or prospective supplier dissatisfied with a reconsidered
determination is entitled to a hearing before an ALJ. 42 C.F.R. §§ 498.5(d)(2);
498.5(1)(2). The regulations do not provide for a hearing in the absence of a reconsidered
determination. Denise A. Hardy, D.P.M., DAB No. 2464 at 4-5 (2012); Hiva Vakil, DAB
No. 2460 at 4-5 (2012).

Petitioner criticizes the Medicare contractor for not including his claim in the Smalling
determination. I find this wholly without merit (and not reviewable by me). A Medicare
contractor is certainly free to consider individual applications individually. Moreover,
there was no initial determination for Petitioner that the contractor could reconsider.

Petitioner also argues that “[w]hile Novitas was aware of the consolidated request for
reconsideration, Novitas failed to send proper notice to [Petitioner’s counsel] of the
different letters and notices addressed to the rest of the providers.” P. Supp. Resp. and
Opp. at 2. Petitioner’s counsel argues that if he received notice (which his client actually
did, see CMS Ex. 3, at 1), he would have filed a separate reconsideration request on
Petitioner’s behalf. That argument is not relevant here because Petitioner never received
an initial determination for which Petitioner’s counsel could request reconsideration.

I am authorized to dismiss a hearing request if the party requesting review does not have
aright to a hearing. 42 C.F.R. § 498.70(b).

Conclusion

Because neither CMS nor its contractor issued an initial determination in this case,
Petitioner does not have a right to an ALJ hearing. I therefore dismiss his hearing request
pursuant to 42 C.F.R. 498.70(b).

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Chinh Pham, M.D.,
(NPI: 1619148715),
Petitioner,
v.
Centers for Medicare & Medicaid Services.

Docket No. C-13-1014
ALJ Ruling No. 2014-2

Date: October 25, 2013

DISMISSAL

Petitioner, Chinh Pham, challenges the effective date of his participation in the Medicare
program. The Centers for Medicare & Medicaid Services (CMS) moves to dismiss his
appeal. CMS argues that Petitioner has no right to a hearing before an administrative law
judge (ALJ), because he has not obtained a reconsidered determination.

For the reasons set forth below, I grant CMS’s motion and dismiss this case pursuant to
42 CFR. § 498.70(b).

Background

Petitioner is an emergency room physician and member of the Oakbend Medical Group.
In applications (CMS-855R) dated October 9, 2012 and December 27, 2012, he applied
for enrollment in the Medicare program and asked that his benefits be reassigned to the

group practice. CMS Exs. 1-2. Apparently, other members of the practice filed similar
applications at about the same time.
In a letter dated May 17, 2013, the Medicare contractor, Novitas Solutions, Inc., advised
Petitioner that his enrollment application had been approved with an effective date of
September 15, 2012. The notice advised him that, if he disagreed with the established
effective date, he could request reconsideration before a contractor hearing officer. It
warned that “[fJailure to timely request a reconsideration is deemed a waiver of all rights
to further administrative review.” CMS Ex. 3. Petitioner did not request reconsideration.

Apparently, one of Petitioner’s medical group colleagues, Ian Smalling, NP, had earlier
received a similar letter approving his Medicare application. He disagreed with the
effective date and requested reconsideration on January 15, 2013, which was well before
the contractor issued its initial determination on Petitioner’s application. CMS Ex. 4.
Petitioner (along with other members of the medical practice) attempted to join Mr.
Smalling’s reconsideration request. However, Petitioner could not then validly request
reconsideration, because the contractor had not issued an initial determination. See 42
C.F.R. §§ 498.5(d)(1); 498.5(1)(1); 498.22, and discussion below.

In a letter dated May 17, 2013, the contractor’s hearing specialist issued its reconsidered
determination in Mr. Smalling’s case. CMS Ex. 5. Although the letter refers to similar
initial determinations issued to other members of the practice, it states that “‘a formal
decision is not rendered in this letter for [those] providers.” CMS Ex. 5 at 1.

In a letter dated June 20, 2013, Petitioner requested an ALJ hearing to challenge the
effective date of his enrollment. CMS now moves to dismiss that hearing request.

Discussion

To receive Medicare payments for services furnished to program beneficiaries, a
Medicare supplier must be enrolled in the Medicare program. 42 C.F.R. § 424.505. To
enroll in Medicare, a prospective supplier must complete and submit an enrollment
application. 42 C.F.R. §§ 424.510(d)(1); 424.515(a). When CMS determines that a
supplier meets the applicable enrollment requirements, it grants him Medicare billing
privileges. For physicians, the effective date for billing privileges “is the /ater of the date
of filing” a subsequently approved enrollment application or “the date an enrolled
physician . . . first began furnishing services at a new practice location.” 42 C.F.R. §
424.520(d) (emphasis added).

CMS’s determination as to the effective date of enrollment is an “initial determination”
that is subject to review under the procedures set forth in 42 C.F.R. Part 498. 42 C.F.R.
§§ 498.3(1), (b)(15). An initial determination is binding unless reconsidered or otherwise
reversed or modified. 42 C.F.R. § 498.20(b).

A supplier or prospective supplier dissatisfied with an initial determination may request
reconsideration by filing a written request within 60 days from receipt of the notice of the
initial determination. 42 C.F.R. §§ 498.5(d)(1); 498.5(1)(1); 498.22. If CMS (or its
contractor) receives a properly-filed request for reconsideration, it makes a reconsidered
determination affirming or modifying the initial determination. 42 C.F.R. § 498.24(c). A
supplier or prospective supplier dissatisfied with a reconsidered determination is entitled
to a hearing before an ALJ. 42 C.F.R. §§ 498.5(d)(2); 498.5(1)(2). The regulations do
not provide for a hearing in the absence of a reconsidered determination. Denise A.
Hardy, D.P.M., DAB No. 2464 at 4-5 (2012); Hiva Vakil, DAB No. 2460 at 4-5 (2012).

Petitioner criticizes the Medicare contractor for not including his claim in the Smalling
determination. I find this wholly without merit (and not reviewable by me). A Medicare
contractor is certainly free to consider individual applications individually.

Petitioner also claims that “[a]t no point were Petitioners informed by Novitas that they
needed to file separate and individual requests for reconsideration. ...” P. Resp. and
Opp. to CMS’s Motion to Dismiss at 2. This is not accurate. The contractor’s May 17
notice letter advised Petitioner that, unless he requested reconsideration of that
determination, he waived all rights to further administrative review.

Finally, Petitioner argues that “[w]hile Novitas was aware of the consolidated request for
reconsideration, Novitas failed to send proper notice to [Petitioner’s counsel] of the
different letters and notices addressed to the rest of the providers.” P. Supp. Resp. and
Opp. at 2. Petitioner’s counsel argues that if he received notice (which his client actually
did, see CMS Ex. 3, at 1), he would have filed a separate reconsideration request on
Petitioner’s behalf. That argument is not properly before me, but should have been made
to Novitas, pursuant to 42 C.F.R. § 498.22(d), which permits CMS or its contractor to
extend the time for filing a reconsideration request.

I am authorized to dismiss a hearing request if the party requesting review does not have
aright to a hearing. 42 C.F.R. § 498.70(b).

Conclusion

Because neither CMS nor its contractor issued a reconsidered determination in this case,
Petitioner does not have a right to an ALJ hearing. I therefore dismiss his hearing request
pursuant to 42 C.F.R. 498.70(b).

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Sandra Marie Lubinski,

(O.I. File No. H-12-4-1352-9)
Petitioner,

v.

The Inspector General.

Docket No. C-13-715
Decision No. CR2968

Date: October 24, 2013

DECISION

Petitioner, Sandra Marie Lubinski, was a registered nurse licensed in the State of
Arizona. The Arizona State Board of Nursing (Nursing Board) investigated numerous
complaints against her relating primarily to her substance abuse. Petitioner Lubinski
surrendered her license to practice nursing while facing disciplinary proceedings relating
to those complaints. Pursuant to section 1128(b)(4) of the Social Security Act (Act), the
Inspector General (I.G.) has excluded her from participation in Medicare, Medicaid, and
all federal health care programs until she regains her license. Petitioner now appeals the
exclusion.

For the reasons set forth below, I find that Petitioner Lubinski surrendered her nursing
license while a formal disciplinary proceeding involving her professional competence or
performance was pending before the Nursing Board. The I.G. therefore appropriately
excluded her from program participation.
Background

In a letter dated February 28, 2013, the I.G. advised Petitioner Lubinski that she was
excluded from participation in Medicare, Medicaid, and all federal health care programs
because she had surrendered her license to practice nursing while a formal disciplinary
proceeding, bearing on her professional competence, professional performance, or
financial integrity, was pending before the Arizona State Board of Nursing. The letter
explained that section 1128(b)(4) authorizes the exclusion. 1.G. Ex. 1. Petitioner
Lubinski timely requested review.

The parties have submitted briefs (I.G. Br.; P. Br.). The I.G. also submitted five exhibits
(LG. Exs. 1-5), and a reply brief (1.G. Reply). Petitioner submitted six exhibits (P. Exs.
1-6). In the absence of any objections, I admit into evidence I.G. Exs. 1-5 and P. Exs. 1-
6.

I directed the parties to indicate in their briefs whether an in-person hearing would be
necessary and, if so, to explain why any witness’s “proposed testimony does not
duplicate something that is already stated in an exhibit.” June 10, 2013 Email Providing
Petitioner's Informal Brief, Attachment | (Informal Brief of Petitioner § II). The LG.
indicates that a hearing is not necessary and submits no declarations from proposed
witnesses. I.G. Br. at 9. Petitioner argues that a hearing is “appropriate in establishing
credibility of witnesses, demonstrating trustworthiness of Petitioner, and helpful in
deciding this case.” P. Br. at 12. Petitioner submits two declarations from proposed
witnesses, and a report from one of the declarants.! See P. Br. at 12; P. Exs. 2-4.
Petitioner fails to demonstrate how the testimony of her proposed witnesses would
deviate from that which is already stated in exhibits; indeed, Petitioner affirms that it
would not. See P. Br. at 12. There are no questions of witness credibility in this case.
The L.G. did not express an interest in cross-examining any of Petitioner’s proposed
witnesses. I.G. Br. at 9; 1.G. Reply at 7-8. I therefore decline to schedule a hearing that
would serve no purpose.

' Petitioner submits two declarations, Petitioner’s Exhibits 2-3. Petitioner’s Exhibit 2 is
the declaration of Katherine Busby, J.D., who provides an authoritative interpretation of
how Arizona state law defines a “formal disciplinary proceeding.” See P. Ex. 2. Arizona
law, however, is irrelevant in determining whether a formal disciplinary proceeding was
pending in this case. See P. Ex. 2. Petitioner’s Exhibit 3 is the declaration of a Michel A.
Sucher, M.D., who evaluated Petitioner and determined that she did not abuse
prescription drugs. P. Ex. 3, at 1. Petitioner’s Exhibit 4 is Dr. Sucher’s full evaluation of
the Petitioner. Dr. Sucher’s statements and evaluation constitute a collateral attack on the
Board’s findings and I cannot consider them. 42 C.F.R. § 1001.2007(d); Roy Crosby
Stark, DAB No. 1746 (2000); George Iturralde, M.D., DAB No. 1374 (1992); Leonard
R. Friedman, M.D., DAB No. 1281 (1991).
Discussion

Because Petitioner Lubinski surrendered her license to practice nursing while a
formal disciplinary proceeding bearing on her professional competence or
performance was pending, the I.G. may appropriately exclude her from
participation in Medicare, Medicaid, and other federally funded health care
programs.
The Act authorizes the Secretary of Health and Human Services to exclude from program
participation an individual who surrendered her license to provide health care while a
formal disciplinary proceeding was pending before any state licensing authority, if the
proceeding concerned the individual’s professional competence, professional
performance, or financial integrity. Act § 1128(b)(4); accord 42 C.F.R. § 1001.501(a).

The parties agree that Petitioner Lubinski voluntarily surrendered her nursing license.
1.G. Br. at 3; P. Br. at 4. Petitioner argues, however, that a formal disciplinary
proceeding was not pending against her when she voluntarily agreed to surrender her
license. P. Br. at 2-6. In fact, the Nursing Board’s documents — the Consent for Entry of
Voluntary Surrender (Consent Order) and the Board Meeting Overview (Overview) — say
otherwise. I.G. Exs. 2, 4.

Petitioner argues that under Arizona law, “a [Nursing] Board meeting is not a formal
disciplinary proceeding,” and that “[iJn Arizona, disciplinary proceedings are initiated
when the Notice of Charges is served.” P. Br. at 6; P. Ex. 2, at 1-2. I find Petitioner’s
arguments unavailing and adopt the reasoning of numerous other ALJ’s who have held
that “the interpretation of a federal statute or regulation is a question of federal, not state,
law.” Chester A. Bennett, M.D., DAB CR64, at 7 (1990) (citing United States v.
Allegheny Cnty., 322 U.S. 174, 183 (1944)); Maurice Labbe, DAB CR488 (1997);
Dillard P. Enright, DAB CR138, at 9 (1991); see also Henry L. Gupton, DAB No. 2058,
at 8 (2007), aff'd, Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008) (explaining,
in a different context, that federal definitions must trump the state’s in order to assure that
statutory goals are met).

A formal disciplinary proceeding is a proceeding that “places a party's license in jeopardy
and which provides that party with an opportunity to defend against charges which might
result in a license suspension or revocation... .” John W. Foderick M.D., DAB No.
1125, at 5 (1990) (quoting DAB CR43 (1989)). A “formal disciplinary proceeding” can
involve different stages, and is not, therefore, limited to a formal hearing. Foderick,
DAB No. 1125, at 6.

> T make this one finding of fact/conclusion of law.
The Nursing Board’s Overview demonstrates that a “formal disciplinary proceeding”
began when the Nursing Board initiated its investigation of Petitioner as a result of the
charges made against her and was pending against Petitioner when she voluntarily
surrendered her license. See I.G. Ex. 4; Foderick, DAB No. 1124, at 6-7. Petitioner
concedes that the Nursing Board investigated her based on complaints made against her.
P. Ex. 6, at 14. The investigation put Petitioner on notice of that charges were filed
against her. I.G. Ex. 4, at 1 (“The investigator . . . interviews the subject of the
complaint[s] . . . and then compiles the findings into an investigative report.”). The
Overview establishes that two of the possible outcomes of Board investigations, such as
the one conducted on Petitioner Lubinski, are revocation and suspension. IG. Ex. 4, at 2.
Because the Board initiated an investigation of Petitioner that could lead to the revocation
or suspension of her license, the first requirement for a “formal disciplinary proceeding”
is met.

The second requirement for a “formal disciplinary proceeding” is met because Petitioner
had an opportunity to defend herself from the charges made against her, and Petitioner
would have had an additional opportunity had she not voluntarily surrendered her license.
The Nursing Board gave Petitioner the opportunity to “give a verbal presentation (up to 5
minutes), to provide [Nursing] Board members with information [she] feel[s] is pertinent
for their consideration.” I.G. Ex. 4, at 1. Petitioner declined that opportunity. P. Ex. 6,
at 3. The Nursing Board voted unanimously to offer Petitioner a Consent Agreement
“based upon the findings of fact and statute/rule violations identified in the investigative
report....” IG. Ex. 3, at 3. The Nursing Board ordered a Notice of Charges to be
issued if Petitioner rejected the Consent Agreement. I.G. Ex. 3, at 3.

Petitioner voluntarily gave up an additional opportunity to defend herself from the
complaints made against her in a formal hearing. Petitioner surrendered her license,
which prevented the formal disciplinary proceedings from advancing to the next stage, a
formal hearing. P. Br. at 2-3; LG. Ex. 4, at 2; see A.R.S. § 32-1663(C), (F)(3). Petitioner
cannot voluntarily surrender her right to a formal hearing and then claim she did not have
an opportunity to defend herself in a formal hearing. See LG. Ex. 2, at 4; P. Ex. 6, at 47
(“In lieu of a formal hearing on these issues, [Petitioner] . . . waives all rights to a

earing, rehearing, appeal or judicial review related to this matter.”). The ultimate
outcome of the Board’s decision to offer Petitioner a Consent Agreement or,
alternatively, issue a Notice of Charges, was that Petitioner would have had the chance to
offer a fuller defense of the charges against her. P. Br. at 2-3; 1.G. Ex. 4, at 2; see A.R.S.
§ 32-1663(C), (F)(3). Petitioner’s voluntary surrender of her license was the sole reason
Petitioner did not advance to a formal hearing. I.G. Reply at 3-4; P. Br. at 4; LG. Ex. 4,
at 2. The second requirement for a “formal disciplinary proceeding” is thus met.
Petitioner, therefore, surrendered her license while a “formal disciplinary proceeding”
was pending against her.

Petitioner Lubinski also argues that she did not surrender her license for reasons
concerning her professional competence and performance. P. Br. at 6-11. The Consent
Order, agreed to and signed by Petitioner Lubinski, demonstrates otherwise. P. Ex. 6, at
44-50; LG. Ex. 2. In the Consent Order, Petitioner “admits the [Nursing] Board’s
Findings of Fact, Conclusions of Law.” P. Ex. 6, at 47; LG. Ex. 2, at 4. The Nursing
Board determined that “the admissions in the Findings of Fact are conclusive evidence of
a violation of the Nurse Practice Act....” P. Ex. 6, at 47; LG. Ex. 2, at 4. Specifically,
the Nursing Board concluded as a matter of law that Petitioner Lubinski violated rules
concerning “[a] pattern of failure to maintain minimum standards of acceptable and
prevailing nursing” and “[a] pattern of using or being under the influence of alcohol,
drugs, or a similar substance to the extent that judgment may be impaired and nursing
practice detrimentally affected, or while on duty in any health care facility, school,
institution, or other work location[.]” P. Ex. 6, at 46; I.G. Ex. 2, at 3. Where, as here, a
formal disciplinary proceeding involved whether an individual’s conduct demonstrates
that she failed to maintain even the minimum standards governing her profession, it is a
proceeding that concerns the individual’s professional competence or performance, and
the I.G. may appropriately exclude her from program participation under section
1128(b)(4) of the Act.

Petitioner submits evidence concerning her moral character and the impact that her
exclusion will have on her employer. P. Ex. 6, at 5, 31-33, 41-42. As the Departmental
Appeals Board observed in Donna Rogers, such arguments and evidence are not relevant.
DAB No. 2381 (2011). I may not review the I.G.’s decision to impose an exclusion
under section 1128(b)(4) “on the ground that the excluded person is a good person or
well-thought of in the profession... .” Rogers, DAB No. 2381, at 6.

Petitioner also submits evidence attempting to demonstrate that the complaints against
her, which the Board investigated and found sufficient to justify disciplinary action, came
from a disgruntled former co-worker. P. Ex. 6, at 23-30. I cannot, however, consider
collateral attacks on the underlying basis of the Board’s Consent Order. 42 C.F.R.

§ 1001.2007(d); Stark, DAB No. 1746; Iturralde, M.D., DAB No. 1374; Friedman, M.D.,
DAB No. 1281.

The statute requires that Petitioner Lubinski’s period of exclusion “shall not be less than
the period during which the individual’s . . . license... is. . . revoked, suspended, or
surrendered ....” Act § 1128(c)(3)(E); see also 42 C.F.R. § 1001.501(b)(1).
Conclusion

For the above reasons, I conclude that the I.G. properly excluded Petitioner Lubinski
from participation in Medicare, Medicaid, and all other federal health care programs for
so long as her license is suspended.

/s/
Carolyn Cozad Hughes
Administrative Law Judge