Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Donna Rogers,
(O.1. File Number L-09-40336-9),

Petitioner
Vv.
The Inspector General.
Docket No. C-10-1014
Decision No. CR2320

Date: February 10, 2011

DECISION

Petitioner pro se Donna Rogers appeals a determination by the Inspector General (L.G.) to
exclude her from participating in Medicare, Medicaid, and all federal health care
programs until she regains her certification as a nurse assistant in the State of California.
For the reasons discussed below, I find that the I.G. is authorized to exclude Petitioner
pursuant to section 1128(b)(4)(A) of the Social Security Act (Act) and that the exclusion
must remain in effect until she regains her certification as a nurse assistant in the State of
California.

I. Procedural Background

By letter dated July 30, 2010, the I.G. notified Petitioner that she was being excluded
from participating in Medicare, Medicaid, and all federal health care programs until she
regained her license as a nurse assistant in California. The I.G. advised Petitioner that her
exclusion was imposed under section 1128(b)(4) of the Act and was due to the
revocation, suspension or loss of her nurse assistant license or the surrender of her license
while a formal disciplinary proceeding was pending before the California Department of
Public Health, Licensing and Certification, Investigation Section (state agency) for
reasons bearing on her professional competence, professional performance, or financial
integrity. Act, section 1128(b)(4); 42 C.F.R. § 1001.501. Petitioner requested a hearing
pursuant to 42 C.F.R. § 1005.2 on September 24, 2010.

I held a pre-hearing conference by telephone on October 28, 2010. Petitioner appeared
pro se. Linformed Petitioner that she had the right to retain counsel but that I could not
appoint counsel for her. Petitioner did not retain counsel during the course of this
proceeding. I also informed Petitioner that based on my review of the file it appeared
likely that the issues in the case could be addressed in summary fashion in the context of
a motion for summary disposition. I assured the parties that if any issues could not be
resolved in summary fashion I would schedule an evidentiary hearing to address them.

The L.G. filed a motion for summary disposition (I.G. Br.), accompanied by three exhibits
(I.G. Exs. 1-3). Petitioner filed an answer brief which she states is her “letter Exhibit A”
(P. Br.), accompanied by exhibits B and C (P. Exs. B and C) and an audiocassette tape.
The L.G. filed a reply (I.G. Reply), and Petitioner filed a final response (P. Response),
accompanied by what she has termed P. Ex. L and various attachments. I receive into
evidence I.G. Exs. 1-3 and P. Exs. B, C, and L.' Tretain the attachments submitted by
Petitioner in the record, although I do not admit them as exhibits. The I.G. objects to the
admissibility of the tape on the grounds such tape is irrelevant and immaterial and
constitutes oral testimony not given under oath. The I.G. also notes that Petitioner asserts
that her answer brief and P. Exs. B and C are to be found on the tape “for audio
listening,” and the tape is thus irrelevant and immaterial in light of the fact that it merely
repeats the written exhibits submitted by Petitioner. The I.G. moves to strike the tape
pursuant to 42 C.F.R. §§ 1005.16 and 1005.17.* Petitioner states in her response that she
“understand[s] that it is unnecessary to listen to my text on tape,” (P. Response at 1) and
she further suggests in her answer brief that I “please read and/or listen to my Exhibits for
the information is still the same.” P. Br. at 1. As the tape apparently repeats the content
of the written exhibits submitted by Petitioner, and Petitioner is not specifically

' P. Ex. L consists of a May 11, 2008 letter from Petitioner; a map of St. Joseph’s Health
and Retirement Center (St. Josephs); a September 18, 2008 letter from the state agency to
Petitioner; an October 29, 2008 letter from St. Josephs to Petitioner; the state agency’s
January 16, 2009 revocation of Petitioner’s nurse assistant certification; an employee
separation report with a separation date of January 19, 2009; an April 20, 2009 letter to
Petitioner from the state agency Office of Legal Services; a March 28, 2010 letter from
Lynne McConnell R.N.; a December 6, 2010 letter from Petitioner to the Administrator
of St. Josephs; and a January 23, 2011 document prepared by Petitioner headed “‘co-
workers, documented workers and, residents-certified.”

> The LG. states that it objects to the admission of two audiocassette tapes. However,
Petitioner filed only one tape with my office. As I do not admit this tape, I have not
required Petitioner to provide an explanation of this disparity.
requesting that I listen to the tape, I have not listened to it and have not admitted it into
evidence. However, I have retained the tape in the record file of the case.

II. Issues

The only issue in this case is whether the I.G. is authorized to exclude Petitioner pursuant
to section 1128(b)(4)(A) of the Act. If I find that the I.G. is so authorized, Petitioner’s
exclusion must continue until she regains her certification as a nurse assistant in the State
of California. Act, section 1128(c)(3)(E); 42 C.F.R. § 1001.501(b).

III. Controlling Statutes and Regulations

Section 1128(b)(4) of the Act authorizes that an individual be excluded from Medicare,
Medicaid and all federal health care programs when the individual’s “(A) . . . license to
provide health care has been revoked or suspended by any State licensing authority, or
who otherwise lost such a license or the right to apply for or renew such a license, for
reasons bearing on the individual’s . . . professional competence, professional
performance, or financial integrity, or (B) who surrendered such a license while a formal
disciplinary proceeding was pending before such an authority and the proceeding
concerned the individual’s . . . professional competence, professional performance, or
financial integrity.” Exclusion under section 1128(b)(4) of the Act is a discretionary
action taken by the I.G. on behalf of the Secretary of Health and Human Services. Where
a legal basis to exclude exists under section 1128(b) of the Act, however, an
Administrative Law Judge is without authority to review the I.G.’s decision to exercise
is discretion. 42 C.F.R. § 1005.4(c)(5). Ifthe I.G. exercises his discretion to proceed
with exclusion, section 1128(c)(3)(E) of the Act requires that the “period of exclusion
shall not be less than the period during which the individual’s . . . license to provide
ealth care is revoked, suspended, or surrendered . . . .”

The terms of 42 C.F.R. § 1001.2007(d) provide that in exclusion appeals:

When the exclusion is based on the existence of a criminal conviction or a civil

judgment imposing liability by [a] Federal, State or local court, a determination by
another Government agency, or any other prior determination where the facts were
adjudicated and a final decision was made, the basis for the underlying conviction,
civil judgment or determination is not reviewable and the individual or entity may
not collaterally attack it either on substantive or procedural grounds in this appeal.

The regulations governing my resolution of this case, set forth at 42 C.F.R. Part 1005, do
not specify summary disposition procedures, but summary disposition is explicitly
authorized by the terms of 42 C.F.R. § 1005.4(b)(12), and this forum looks to Fed. R.
Civ. P. 56 for guidance in applying that regulation.
Summary disposition is appropriate in an exclusion case when there are no disputed
issues of material fact and when the undisputed facts, clear and not subject to conflicting
interpretation, demonstrate that one party is entitled to judgment as a matter of law.
Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994);
Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992);
Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No.
1125 (1990). All the facts and the inferences reasonably to be drawn from those facts
must be viewed in the light most favorable to the nonmoving party. See Pollock v.
American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3rd Cir. 1986); Brightview Care
Center, DAB No. 2132 (2007); Madison Health Care, Inc., DAB No. 1927, at 5-7
(2004). When the undisputed material facts of a case support summary disposition, there
is no need for a full evidentiary hearing, and neither party has the right to one. Surabhan
Ratanasen, M.D., DAB No. 1138 (1990); John W. Foderick, M.D., DAB No. 1125.

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

Below, I find that there are no genuine issues of material fact in dispute and that
summary disposition is thus appropriate.

IV. Discussion

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

There are two essential elements necessary to support an exclusion based on section
1128(b)(4)(A) of the Act. First, the I.G. must prove that the license to provide health care
of the individual to be excluded has been revoked or suspended by a state licensing
authority. Second, the I.G. must prove that the license was revoked or suspended for
reasons bearing on the individual’s professional competence, professional performance,
or financial integrity. Leonard R. Friedman, M.D., DAB No. 1281 (1991); Thomas I.
DeVol, Ph.D., DAB CR1652 (2007); Sherry J. Cross, DAB CR1575 (2007); Michele R.
Rodney, DAB CR1332 (2005); Edmund B. Eisnaugle, D.O., DAB CR1010 (2003);
Marcos U. Ramos, M.D., DAB CR788 (2001); Allison Purtell, M.D., DAB CR781
(2001).

1. Petitioner’s certification to practice as a nurse assistant was revoked by a
state licensing authority for reasons bearing on her professional performance.
a. Petitioner’s certification to practice as a nurse assistant was revoked
by a state licensing authority.

The first essential element, the revocation of Petitioner’s nurse assistant certification, ° is
conclusively established by the records in evidence. Petitioner was certified as a nurse
assistant on June 30, 1989. LG. Ex. 2, at 1. On January 16, 2009, the state agency
notified Petitioner that it had made a determination to revoke her “Nurse Assistant
Certification, Number 271072.” The state agency indicated that unless Petitioner timely
requested a hearing, the revocation would be effective 21 business days from her receipt
of the January 16, 2009 letter. I.G. Ex. 3. Petitioner does not assert that she timely
requested such a hearing. In fact, she stated at P. Ex. B, at 22, that she was “ill when I
received my notice in January 2009, I wasn’t able to think through a hearing.” In her
response she states “January 16, 2009, I was completely broken down and sent back a
note to the State that I quit.” _P. Response at 2. Accordingly, I find that Petitioner did not
request a hearing and that her nurse assistant certification was revoked 21 days after her
receipt of the January 16, 2009 letter.

b. The loss of Petitioner’s nurse assistant certification was for reasons
bearing on her professional performance.

In its January 16, 2009 letter to Petitioner notifying her of the revocation of her nurse
assistant certification, the state agency wrote:

This action is based on the Department’s investigation concerning an allegation
that you slapped a female resident’s hand(s). The incident occurred on or about
05/11/08 at St. Joseph’s Health and Retirement Center in Ojai, California[.]

* The Act does not define what is meant by the term “license to provide health care” in
section 1128(b)(4). I find that the meaning of the term “license” in this section of the Act
is intended to apply to situations in which state certification or approval is a prerequisite
to performing work in the health care field. The state agency has jurisdiction over nurse
assistants in California. CAL. HEALTH & SAFETY CODE § 1337. Nurse assistants are
certified, not licensed, and certification of professional competence and training is a
necessary prerequisite for an individual to be employed as a nurse assistant. CAL.
HEALTH & SAFETY CODE § 1337.2(e). Such certification operates as a license limiting
the state’s permission to provide nurse assistant services to only those who meet
minimum competency and training standards. Certification as a nurse assistant in
California is thus the equivalent of a “license” because it has the same legal function as a
license to provide such health care. Eno Essien, DAB CR1714 (2007); Owen C. Gore,
DAB CR1070 (2003).

The Department has concluded that the allegation has been substantiated. Your
action constituted physical abuse sufficient to support a revocation of your
certificate pursuant to Health and Safety Code Section 1337.9(c)(1). Pursuant to
42 Code of Federal Regulations (CFR) Section 483.156(c), a finding of abuse will
be included on the State Nurse Assistant Registry.

1G. Ex. 3, at 1. This finding by the state agency that Petitioner physically abused a
resident in the facility where she was working as a nurse assistant plainly relates to her
professional performance. Nurse assistants are, quite obviously, neither expected nor
permitted to abuse residents under their care.

Petitioner argues in her submissions that she did not slap the resident, but only interceded
in an altercation between two residents to prevent one of the residents from being
assaulted. She argues that she was “using self defense to save someones (sic) life.” P.
Ex. C, at 12. Petitioner’s arguments are not relevant or material to the issues before me
because those arguments constitute a collateral attack on the state agency determination
which is the basis for Petitioner’s exclusion. I am precluded by regulation from
considering Petitioner’s arguments.* 42 C.F.R. § 1001.2007(d).

2. Petitioner’s exclusion is reasonable as a matter of law.

While the LG. has the discretion to exclude an individual pursuant to section
1128(b)(4)(A) of the Act, the I.G. has no discretion in determining the term of that
exclusion. Section 1128(c)(3)(E) of the Act provides that any exclusion imposed under
section 1128(b)(4) of the Act must be for no less than the period during which the
excluded individual’s license to provide health care is revoked, suspended, or
surrendered. Since I have found the I.G. authorized to exclude Petitioner pursuant to
section 1128(b)(4)(A) of the Act, an exclusion coterminous with the period during which
her certification to practice as a nurse assistant is revoked is mandated by law.

+ Petitioner argues also that her constitutional rights have been violated and that
“Miranda rights” were not extended to her. P. Ex. C, at 7. It is not clear from
Petitioner’s submissions and argument exactly how she believes her constitutional rights
have been violated. However, constitutional arguments are not relevant in this forum,
because as an Administrative Law Judge I am without the authority to entertain them.
Michael J. Rosen, M.D., DAB No. 2096, n.10 (2007); Keith Michael Everman, D.C.,
DAB No. 1880 (2003); Susan Malady, R.N., DAB No. 1816 (2002). I infer that where
Petitioner is referring to her “Miranda rights” she is referring to the standard and well-
known police practices developed following the decision in Miranda v. Arizona, 384 U.S.
436 (1966). It is not clear how Petitioner intends this as a defense in this proceeding, as it
appears from her argument that she believes “Miranda rights” should have been extended
to her during the state agency investigation. Such argument is not relevant in this forum.
V. Conclusion

For the reasons set forth above, the I.G.’s motion for summary disposition must be, and it
is, GRANTED. The LG. is authorized to exclude Petitioner until she regains her
certification to practice as a nurse assistant in the State of California.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Parkside Surgery Institute
(CCN: 05C0001455),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-11-110
Decision No. CR2319

Date: February 9, 2011

DECISION DISMISSING REQUEST FOR HEARING

I dismiss the hearing request of Petitioner, Parkside Surgery Center. Petitioner failed to
file a hearing request that conforms to the requirements of 42 C.F.R. § 498.40(b), did not
show good cause for its failure, and has not filed its hearing request timely even after
being afforded additional time to do so.

I. Background

Petitioner is an ambulatory surgery center that participated in the Medicare program. On
September 23, 2010, the Centers for Medicare and Medicaid Services (CMS) sent a
notice to Petitioner advising it that its participation in Medicare would be terminated
effective November 4, 2010. Petitioner was advised that the termination was being
effectuated because surveys of Petitioner’s facility completed on May 12 and July 28,
2010 had established that Petitioner had not complied with several enumerated conditions
of participation. The notice advised Petitioner of its appeal rights, telling it that it had 60
days from the date of receipt of the notice to file a hearing request. Petitioner was
specifically advised that:
Any such [hearing] request must identify the specific issues as well as the
findings of fact and conclusions of law with which you disagree and
explain the basis for contending that our findings and conclusions are
incorrect ....

The notice letter gave Petitioner explicit directions concerning where the hearing request
must be mailed.

On November 1, 2010, Robert M. Ross, an attorney then representing Petitioner filed a
letter with the San Francisco Regional Office of CMS. The letter purported to enclose a
“fully documented response” to the report of the July 28, 2010 survey and requested that
the Regional Office advise Mr. Ross whether the response addressed the concerns “set
forth in your correspondence and the CMS-2567.” Enclosed with the letter was a
massive collection of documents consisting of several hundred pages, many of which
appear to be facility records. The letter provided no narrative explaining what the
documents consisted of, why they were relevant, or how they answered the specific
allegations of noncompliance that were stated in CMS’s September 23, 2010 letter to
Petitioner. Indeed, it is unclear whether Mr. Ross’s letter and the enclosed documents
were written directly in response to the September 23, 2010 letter.

The San Francisco Regional Office evidently concluded that this letter and submission
constituted Petitioner’s hearing request and forwarded it to the Departmental Appeals
Board, where it was docketed as a hearing request and assigned to me for a hearing and a
decision. I reviewed the letter and the attached documents and concluded that it did not
constitute a hearing request in compliance with 42 C.F.R. § 498.40(b) because the
materials neither identified the issues that were being appealed nor did it explain why
CMS’s determinations of noncompliance were incorrect.

On November 29, 2010, I had a letter sent to Petitioner’s counsel advising him that the
submission was not a proper hearing request. I allowed Petitioner until December 15,
2010 to file a hearing request that conformed to regulatory requirements. On December
23, 2010, my office received an e-mail directly from Petitioner requesting that it be
resurveyed by CMS. At my direction, the staff attorney advised Petitioner by return
email at the email address provided by Petitioner, and with a copy to Petitioner’s counsel,
that I lacked the authority to order a resurvey. Although the deadline had passed, I
reminded Petitioner that a proper hearing request was due December 15, 2010.

I received nothing from Petitioner. On January 5, 2011, I sent an order to Petitioner
giving it until January 18, 2011 to show cause why I should not dismiss the case for
abandonment. I mailed the order directly to Petitioner as well as to its then-counsel. I
told Petitioner in that order that it must file a proper hearing request by the January 18
deadline if it wished to avoid dismissal.
Petitioner did not file a hearing request in response to my order to show cause. Instead,
my office received a submission from Petitioner’s new counsel. He asserts that
Petitioner’s former counsel failed to inform Petitioner about all of the deadlines in the
case and only informed Petitioner of the order to show cause on January 13, 2011.
Petitioner’s new counsel asserts that good cause exists for failing to file a hearing request
because Petitioner was misled by its previous counsel and was thereby prevented from
filing a proper and timely request for hearing. Petitioner’s new counsel claims that he has
yet to receive Petitioner’s entire records and, for that reason, is still unable to file a

earing request.

IL. Issue

The issue in this case is whether Petitioner has established good cause for its failure to
file a hearing request that conforms to the requirements of 42 C.F.R. § 498.40.

IIL. Findings of Fact and Conclusions of Law

The regulations governing a hearing in this case are at 42 C.F.R. Part 498. The
regulations provide that a party requesting a hearing must do so within 60 days of that
party’s receipt of a notice of adverse action from CMS. 42 C.F.R. § 498.40(a)(2). An
administrative law judge may dismiss any hearing request that is untimely filed where the
party requesting the hearing has not shown good cause for its failure to file the request.
42 C.F.R. § 498.70(c). The term “good cause” is not defined in the regulations, but it has
been held generally to include circumstances that are beyond a party’s ability to control
that prevent it from filing a hearing timely.

CMS sent its notice of adverse action to Petitioner on September 23, 2010. Allowing five
days for delivery of the notice meant that Petitioner’s hearing request was due no later
than the end of November 2010. Petitioner failed to file a hearing request. Although its
former counsel filed a mass of documents with the CMS San Francisco Regional Office,
that submission was not on its face a hearing request nor did it contain any of the
information that Petitioner was required to file as part of its hearing request. See 42
C.F.R. § 498.40(b). It was for that reason that I directed Petitioner to file a hearing
request with me if it wanted a hearing. I also accommodated Petitioner by granting it, on
my own motion, a two-week extension to file its request.

Petitioner failed to avail itself of that opportunity. Nor did Petitioner file a hearing
request in response to the order to show cause that I sent to it.

I have considered the argument of Petitioner’s new counsel that Petitioner was somehow
misled by its former counsel into not filing a hearing request. I find this argument to be

without merit for three reasons. First, Petitioner has offered no cogent explanation as to

what the former counsel said, or failed to say, that would have misled it into believing

that it did not have to file a hearing request by the deadline established by the regulations,
or the extended deadline that I granted to it on my own motion. The original notice letter
from CMS - which it mailed directly to Petitioner — was unambiguous. It told Petitioner
exactly what it must do to preserve its right to a hearing, including telling Petitioner what
its hearing request must contain and to whom it must be sent. Petitioner had that
information directly, and I do not comprehend how it could have been misled into
believing that it was not obligated to follow CMS’s instructions if it wanted a hearing.

Second, I find it inconceivable that Petitioner did not know of my order to show cause. I
sent that order to Petitioner’s former counsel and to Petitioner directly. Petitioner had
notice directly from me, even if its former counsel failed to bring the order to show cause
to Petitioner’s attention. The fact that Petitioner failed to act in response to the order to
show cause prior to January 13, 2011, when it finally informed its new counsel of the
order, is Petitioner’s fault and no one else’s.

Third, I still have not received a hearing request as of this date, now more than three
weeks after the deadline that I set in my order to show cause. Petitioner’s new counsel
offered as an excuse that it had not received documents from Petitioner that he needed to
review to file a hearing request. However, weeks have gone by since the due date in the
order to show cause, and counsel has still not filed a hearing request. I can conceive of
no legitimate excuse for such delay.

Accordingly, I dismiss this matter for cause pursuant to 42 C.F.R. § 498.70(c).

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Vikki L. Green, LMSW,
Petitioner
Vv.
Centers for Medicare and Medicaid Services.

Docket No. C-10-941
Decision No. CR2318

Date: February 7, 2011

DECISION

Petitioner, Vikki L. Green, Licensed Master Social Worker (LMSW), appeals the
determination of the Centers for Medicare and Medicaid Services (CMS) to deny her
enrollment application into the Medicare program as a clinical social worker.
Considering it is undisputed that Petitioner does not possess a Master’s Degree in Social
Work, as the Social Security Act (Act) and the implementing regulations require, | affirm
CMS’s denial. A legitimate legal basis exists for CMS to deny Petitioner’s application;
accordingly, I grant CMS’s motion for summary judgment.

I. Background

New Center Community Mental Health Services in Detroit, Michigan currently employs
Petitioner. CMS Memorandum in Support of Motion for Summary Disposition at 2 (Sept.
30, 2010) (CMS Memorandum). Although Petitioner was a licensed social worker at all
relevant times, New Center Community Mental Health Services could not bill Medicare
for payment for any clinical social work Petitioner rendered to Medicare beneficiaries.

On March 8, 2010, Petitioner attempted to enroll in the Medicare program and applied for
billing privileges. CMS Exhibit (Ex.) 1 at 19-49. As part of her application, Petitioner
provided copies of her graduate school diploma and transcript from Kent State University,
where she earned a Master’s of Education degree. CMS Ex. 1, at 15-16; CMS Ex. 2.

On April 1, 2010, Wisconsin Physician Services (WPS), a CMS contractor, denied
Petitioner’s enrollment request into Medicare. CMS Ex. | at 3-4. In its denial, WPS
explained that Petitioner did not meet the enrollment conditions to qualify as a clinical
social worker because she lacked a Master’s or Doctorate degree in social work,
pursuant to the requirement at 42 C.F.R. § 410.73. Jd. at 3. Petitioner subsequently
sought reconsideration on April 15, 2010 and admitted in her request that her Master’s
degree was in education. /d. at 1. On July 19, 2010, a Hearing Officer affirmed the
denial of Petitioner’s Medicare enrollment application on the grounds she did not satisfy
the regulatory requirements for a clinical social worker. CMS Ex. 3.

On August 23, 2010, Petitioner filed a hearing request to appeal the reconsideration
decision. This case was initially assigned to Departmental Appeals Board (Board)
Member Leslie A. Sussan pursuant to 42 C.F.R. § 498.44, which permits a Board
Member to hear appeals under part 498. An Acknowledgment and Pre-Hearing Order
was sent to the parties on August 31, 2010. On September 30, 2010, CMS submitted its
Motion for Summary Disposition, supporting CMS Memorandum, and four proposed
exhibits. Petitioner did not file any documents subsequent to her hearing request. On
October 25, 2010, the case was reassigned to me for hearing and decision. Absent any
objections to CMS’s submitted exhibits, I admit all four exhibits into the record.

II. Applicable Law and Regulations

A supplier’ who wishes to bill Medicare for clinical social worker services must be
enrolled in Medicare to have billing privileges. Specifically, Medicare Part B will pay
for services from clinical social workers who accept Medicare assignment. Act §
1842(b)(18)(A), (C)(iv); 42 C.F.R. § 410.150(b)(18). The Act and the regulations define
a “clinical social worker” as an individual who: (1) possesses a master’s degree or
doctorate in social work; (2) has performed at least two years of supervised clinical work
after receiving the degree; and (3) is licensed, or certified, in the state that the services are
performed. Act § 1861(hh)(1); 42 C.F.R. § 410.73(a).

Ill. Issue

The sole issue in this case is whether Petitioner satisfied the necessary requirements to
enroll into the Medicare Program as a clinical social worker.

' Medicare defines “supplier” to mean “a physician or other practitioner, a facility, or other entity
(other than a provider of services) that furnishes items or services.” Act § 1861(d), 42 U.S.C. §
1395x(d).
II. Discussion

A. Petitioner was Ineligible to Enroll in the Medicare Program as a Clinical
Social Worker because she did not have a Master’s Degree in Social Work,
as the Statute and Regulations Require.

In her hearing request, Petitioner described her extensive experience as a social worker as
evidenced by her attainment of a Social Workers license in 1986, a Professional
Counselor’s License in 2001, and her work at New Center Community Mental Health
Services for the past thirteen years. Petitioner’s Request for Hearing (HR). I accept as
true, for purposes of summary judgment, that Petitioner has all of the education and
experience that she states in her hearing request.

However, to enroll in Medicare as a clinical social worker, the language of the statute and
regulation is plain and clear. An individual must possess a Master’s Degree in Social
Work to qualify for enrollment in Medicare. Prior Administrative Law Judge (ALJ)
decisions reflect that CMS has consistently denied billing privileges under Medicare to
individuals similarly situated to Petitioner. See Jeanne E. Daly-McIntee, DAB CR2073
(2010), Elizabeth M. Prokay, DAB CR1860 (2008), Sherry K. Jose, LICSW, DAB
CRI1750 (2008), Dorothy Rose Hrynyk, DAB CR1444 (2006). Petitioner does not have a
Master’s Degree in Social Work and does not dispute this. In her request for hearing,
however, Petitioner argues that CMS should grant her enrollment request as a supplier of
clinical social worker services because her educational qualifications and work
experience ensure that Medicare beneficiaries will receive services from a competent
practitioner, as the statute and regulation intend.

othing in the Act or the regulations provides that an individual may qualify to provide
clinical social worker services with education or experience that fails to precisely satisfy
the criteria to participate as a clinical social worker with Medicare. Additionally, nothing
in the Act or the regulations permits the Secretary of the Department of Health and
Human Services (Secretary) to waive the statutory or regulatory qualifying criteria and
allow an individual to participate as a clinical social worker. Congress has not granted
the Secretary any discretion to accept a another degree as functionally equivalent to a
Master’s or Doctorate degree in social work. See McIntee, DAB CR2073 at 4-5; see also
Prokay, DAB CR1860 at 3-4 (holding Act does not allow for “functional equivalent”
exception to participation criteria), Rosalyn L. Olian, DAB CR1472 (2006) (rejecting
equivalency argument). Accordingly, the statute and regulations restrict me, and I lack
authority to direct CMS to make such an exception. A legitimate legal basis exists for
CMS to deny Petitioner’s enrollment request, and therefore I must affirm the denial.

B. Summary Judgment is Appropriate in This Case

CMS seeks summary disposition in the nature of summary judgment. The Board stated
the standard for summary judgment:

Summary judgment is appropriate when the record shows that there is no
genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. . .. The party moving for summary judgment
bears the initial burden of showing that there are no genuine issues of
material fact for trial and that it is entitled to judgment as a matter of

law. ... To defeat an adequately supported summary judgment motion, the
non-moving party may not rely on the denials in its pleadings or briefs, but
must furnish evidence of a dispute concerning a material fact — a fact that, if
proven, would affect the outcome of the case under governing law. . . . In
determining whether there are genuine issues of material fact for trial, the
reviewer must view the evidence in the light most favorable to the non-
moving party, drawing all reasonable inferences in that party’s favor.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (citations omitted). An
ALJ’s role in deciding a summary judgment motion differs from its role in resolving a
case after a hearing. The ALJ should not assess credibility or evaluate the weight of
conflicting evidence. Holy Cross Vill. at Notre Dame, Inc, DAB No. 2291 at 5 (2009).
The Board has further stated, “[i]n addition, it is appropriate for the tribunal to consider
whether a rational trier of fact could regard the parties’ presentation as sufficient to meet
their evidentiary burden under the relevant substantive law.” Dumas Nursing and
Rehab., L.P., DAB No. 2347, at 5 (2010).

In this case, Petitioner did not submit any facts beyond those set forth in her request for
hearing. I have accepted all of those facts as true. In addition, I have drawn all
reasonable inferences in her favor. However, no dispute exists that Petitioner lacks the
requisite degree required for enrollment into Medicare. Accordingly, summary judgment
is appropriate, and I grant CMS’s motion.

IV. Conclusion
I sustain CMS’s determination to deny Petitioner enrollment into Medicare because

Petitioner does not possess the requisite degree and does not satisfy the statutory and
regulatory requirements. Considering Petitioner had no Master’s Degree in Social Work,
CMS had a legitimate legal basis to deny her enrollment application. Accordingly, I
grant CMS’s motion for summary judgment.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

First Care Medical Equipment, LLC,
(Supplier No. 6156690001),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-10-922
Decision No. CR2316

Date: February 3, 2011

DECISION

The Centers for Medicare and Medicaid Services (CMS) revoked Petitioner’s supplier
number. Petitioner, First Care Medical Equipment, LLC, appeals, and CMS and
Petitioner have filed cross motions for summary judgment. As discussed below, the
uncontroverted facts compel revocation of Petitioner’s supplier billing number.
Therefore, I grant CMS’s motion for summary judgment.

I. Background

Petitioner is owned by Rosie and Arturo Valdez and was enrolled in the Medicare
program as a supplier of durable medical equipment, prosthetics, orthotics, and supplies
(DMEPOS). CMS Ex. 1, at 2. A CMS contractor from the National Supplier
Clearinghouse (NSC) attempted to conduct two site inspections at Petitioner’s location.
At the time of the two inspection attempts, Petitioner’s posted hours of operation were
Monday through Friday, from 8:30 a.m. to 4:30 p.m. Jd.; CMS Ex. 3, at 45,51. The
NSC inspector attempted the first site visit on February 16, 2010 at 9:15 a.m. CMS Ex.
1, at 2. He attempted a second site visit on February 24, 2010 at 1:45 p.m. Jd. The NSC
inspector could not complete either site visit because he found nobody at the site to let
him inside. Jd. On March 16, 2010, NSC, sent a letter notifying Petitioner that it was
revoking Petitioner’s supplier number effective February 24, 2010, the date CMS
determined that Petitioner was not operational. CMS Ex. 3, at 39-41.

The notice letter specifically stated that the basis for the revocation was that Petitioner
was in violation of 42 C.F.R. § 424.535(a)(5)(ii)' because it was closed during posted
hours of operation on February 16 and 24, 2010, when a NSC inspector attempted to
complete site inspections to verify Petitioner’s compliance with supplier standards. Id.
In addition, the notice letter informed Petitioner that it failed to comply with supplier
standard number ten, which requires liability insurance. Jd. at 40. On or about April 5,
2010, Petitioner submitted a Corrective Action Plan and also requested a reconsideration
decision. CMS Ex. 3, at 5-26. On May 7, 2010, Petitioner submitted additional
documentation, including documentation of liability insurance. CMS Ex. 2, at 1-15. On
June 23, 2010, the Hearing Officer issued an unfavorable decision, upholding the
revocation of Petitioner’s supplier number because Petitioner was not in compliance with
42 C.F.R. § 424.535(a)(5)(ii). CMS Ex. 1, at 1-3. However, the Hearing Officer found
that Petitioner was in compliance with supplier standard ten. Jd. at 2-3.

On August 19, 2010, Petitioner requested a hearing with the Civil Remedies Division of
the Departmental Appeals Board (Board). With its hearing request, Petitioner attached a
telephone bill for February 2010 and a schedule of hours for its receptionist. Although
Petitioner did not submit the telephone bill and schedule as properly marked exhibits
when it filed its motion for summary judgment, I accept them as part of the record and
mark them as Administrative Law Judge (ALJ) Exhibit (Ex.) 1 and ALJ Ex. 2. This case
was initially assigned to Board Member Leslie A. Sussan, pursuant to 42 C.F.R. §
498.44, which permits a Board Member to hear appeals for initial decision under 42
C.F.R. Part 498. It was subsequently transferred to me for decision, and the parties
accordingly were notified by letter dated October 25, 2010.

CMS filed its motion for summary judgment accompanied by four exhibits, CMS Exs.

' This section states: (a) Reasons for revocation. CMS may revoke a currently enrolled
provider or supplier’s Medicare billing privileges and any corresponding provider
agreement or supplier agreement for the following reasons: . . . (5) On-site review. CMS
determines, upon on-site review, that the provider or supplier is no longer operational to
furnish Medicare covered items or services, or is not meeting Medicare enrollment
requirements under statute or regulation to supervise treatment of or to provide Medicare
covered items or services for, Medicare patients. Upon on-site review, CMS determines
that -- . . . (ii) A Medicare Part B supplier is no longer operational to furnish Medicare
covered items or services, or the supplier has failed to satisfy any or all of the Medicare
enrollment requirements, or has failed to furnish Medicare covered items or services as
required by the statute or regulations.
1-4. CMS requested and was granted leave to supplement the administrative record by
submitting a fifth exhibit, CMS Ex. 5, the affidavit of Gina Bertram, a CMS-contracted
Fraud Analyst. Petitioner filed a cross motion for summary judgment and a response to
CMS’s motion for summary judgment (P. Br.), accompanied by six exhibits (P. Exs. 1-6).
By electronic mail dated November 17, 2010, CMS stated that it would not file a reply to
Petitioner’s motion for summary judgment.

II. Applicable Law

To receive Medicare payments for items furnished to a Medicare-eligible beneficiary, the
Secretary of the Department of Health and Human Services must issue a supplier number
toa DMEPOS supplier. Social Security Act (Act) § 1834(j)(1)(A). To receive such
billing privileges, a DMEPOS supplier must also meet and maintain each of the 25
supplier enrollments standards set forth in 42 C.F.R. §§ 424.57(c)(1)-(25). Among other
things, a DMEPOS supplier must permit CMS or its agent to conduct on-site inspections
to ascertain supplier compliance with each of these enrollment standards. 42 C.F.R. §
424.57(c)(8). A provider or supplier is operational if it “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
. .. to furnish these items or services.” 42 C.F.R. § 424.502. In addition, a DMEPOS
supplier “must be accessible during reasonable business hours to beneficiaries and to
CMS, and must maintain a visible sign and posted hours of operation.” 42 C.F.R. §
424.57(c)(8) CMS will revoke a currently-enrolled Medicare supplier’s billing
privileges if CMS or its agent determines that the supplier is not in compliance with any
supplier enrollment standard. See 42 C.F.R. § 424.57(d); A to Z DME, LLC, DAB No.
2303, at 3 (2010); see also 1866I1CPayday.com, DAB No. 2289, at 13 (2009) (“[FJailure
to comply with even one supplier standard is a sufficient basis to for revoking a
supplier’s billing privileges.”). If an on-site visit reveals that a supplier is no longer
operational, or otherwise fails to meet one of the supplier standards, CMS may revoke the
supplier’s Medicare billing privileges. 42 C.F.R. § 424.535(a)(5)(ii).

III. Issue

The issue is whether CMS is entitled to summary judgment because, when considering
the evidence in the light most favorable to the Petitioner, it is undisputed that CMS had a
legitimate basis to revoke Petitioner’s Medicare billing privileges.

IV. Analysis

My findings of fact and conclusions of law are set forth in italics and bold in the
discussion captions of this decision.
I. P. Exs. 1 and 2 are accepted into the record before me.

Petitioner has submitted two exhibits (P. Exs. | and 2) that were not offered to the
Hearing Officer during the reconsideration decisional process. Ifa supplier fails to
provide evidence before the contractor’s Hearing Officer issues a decision, the supplier is
precluded from introducing new evidence at higher levels of the appeal process. 42
C.F.R. § 405.874(c)(5).. However, an ALJ may consider new evidence if the supplier
demonstrates good cause for the late submission of the evidence. 42 C.F.R. § 498.56(e).
Petitioner’s first exhibit is a delivery ticket of items delivered to a beneficiary on
February 16, 2010. P. Ex. 1. Petitioner’s next exhibit is a facsimile dated February 16,
2010. P. Ex. 2. Both of Petitioner’s exhibits would be relevant to my determination of
whether Petitioner was in compliance with Medicare regulations. However, Petitioner
has not satisfactorily explained why this evidence was not presented to the Hearing
Officer. Nonetheless, because this determination is made in the context of summary
judgment, and because | do find these exhibits to be material to the outcome of the case, I
will afford Petitioner every reasonable opportunity to make its case in the evidentiary
record before me. Accordingly, I accept these two exhibits submitted for the first time at
this level of its appeal. See 1866/CPayday.com, L.L.C., DAB CR1976, at 9-11 (2009).

2. This case is appropriate for summary judgment.

CMS filed a Motion for Summary Judgment. The Board stated the standard for summary
judgment as follows:

Summary judgment is appropriate when the record shows that there is no
genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. ... The party moving for summary judgment
bears the initial burden of showing that there are no genuine issues 0
material fact for trial and that it is entitled to judgment as a matter of law
.... To defeat an adequately supported summary judgment motion, the
non-moving party may not rely on the denials in its pleadings or briefs, but
must furnish evidence of a dispute concerning a material fact — a fact that, if
proven, would affect the outcome of the case under governing law. ... In
determining whether there are genuine issues of material fact for trial, the
reviewer must view the evidence in the light most favorable to the non-
moving party, drawing all reasonable inferences in that party’s favor.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations omitted).
The role of an ALJ in deciding a summary judgment motion differs from the ALJ’s role
in resolving a case after a hearing. The ALJ should not assess credibility or evaluate the
weight of conflicting evidence. Holy Cross Vill. at Notre Dame, DAB No. 2291, at 4-5
(2009). The Board has further stated that, “[iJn addition, it is appropriate for the tribunal
to consider whether a rational trier of fact could regard the parties’ presentation as

sufficient to meet their evidentiary burden under the relevant substantive law.” Dumas
Nursing and Rehab., L.P., DAB No. 2347, at 5 (2010).

3. CMS had a legitimate basis to revoke Petitioner’s supplier number.

On February 16, 2010 at 9:15 a.m., the NSC inspector attempted to conduct an
unannounced site inspection on behalf of CMS at Petitioner’s location during its posted
hours of operation. When the inspector attempted the site visit, he found that he could
not enter because the door was locked, even though there was a sign stating “OPEN” and
“COME IN.” On February 24, 2010 at 1:45 pm, the inspector made a second attempt;
however, the door was locked again. During the second attempt, there was a sign stating
“OPEN,” “COME IN,” and also a sign saying “Will Return” with a clock indicating the
time 8:30. CMS Ex. 3, at 43-52; CMS Ex. 4, at 2. The inspector included date stamped
photographs with the site inspection report as evidence of this signage. CMS Ex. 1, at 2;
CMS Ex. 3, at 51-52. Petitioner does not dispute any of these facts.

Specifically, when one of the Petitioner’s owners, Ms. Valdez, submitted Petitioner’s
May 7, 2010 request for consideration, she explained:

We just recently hired our full time receptionist. For the last 2 years it has really
just been my husband and I running the business. . .. The 1“ time Medicare came
to visit we were out of the office. I was actually making sales calls and my
husband was out delivering. The second time Medicare came, my receptionist was
here and stepped out to Subway to grab lunch. When we submitted our
information for reconsideration, I attached a copy of her schedule and I can prove
that I did pay her for that day, so I am not sure how we would have missed the
Medicare personnel. However, since then, we have changed our hours, made a
permanent change on our door, and have notified Medicare in writing about our
change in hours of operation.” ?

CMS Ex. 2, at 2.

Although Petitioner does not dispute that no one was present during the attempted site
visits, Petitioner argues that it was still operational on both February 16 and 24, 2010.
Petitioner submitted several exhibits as evidence claiming that it was still operational.
With its hearing request, Petitioner submitted telephone records showing that telephone

> With its hearing request, Petitioner submitted a photograph of its door with its new
hours. The door now states that office hours are: Monday through Thursday, 9 a.m. - 5
p.m.; Friday, 9 a.m.-noon; and closed Saturday. The door has a sign stating it is closed
for lunch 12:00 p.m.-1:00 p.m. This photograph is irrelevant to this matter because it
does not show the hours of operation on the days at issue, the dates of the attempted site
visits.
calls were made from Petitioner’s location on both those dates. ALJ Ex. 1. I note,
however, that no telephone calls were made prior to 10:37 a.m. on the morning of
February 16, 2010. Jd. The facsimile, dated February 16, 2010, and the delivery ticket,
lated February 16, 2010, also do not establish that anyone was at Petitioner’s business
location at 9:15 a.m. on February 16, 2010, when the NSC inspector attempted a site
visit. P. Exs. 1, 2.

The telephone records also indicate that the last telephone call made on February 24,
2010 was at noon. ALJ Ex. 1. These records do not present a dispute of fact whether
anyone was present when the inspector attempted his on-site visit at 1:45 p.m. that day.
Petitioner also submitted a copy of its receptionist’s schedule. CMS Ex. 3, at 9; P. Ex. 3.
For purposes of summary judgment, I accept as true that Petitioner paid its receptionist
or the full day on February 24, 2010. Also, I accept as true that Petitioner’s receptionist
was scheduled to work from 9:00 a.m. to 5:00 p.m. on February 24, 2010. However,
these facts do not establish that any staff member was actually present at Petitioner’s
location at 1:45 p.m. on February 24, 2010. Petitioner admits that its receptionist left the
premises to go to lunch. Even though the inspector observed the clock sign on the door
that indicated someone “Will Return” at 8:30, I will accept as true for purposes of
summary judgment that the receptionist returned to the office after a reasonable lunch
break.

The August 25, 2010 Acknowledgment and Pre-hearing Order explicitly stated that a
party must exchange as a proposed exhibit the complete written direct testimony of any
proposed witness. Although Petitioner listed a number of proposed witnesses, it did not
submit written direct testimony for any witness. Petitioner has not claimed that anyone
was present during the time of the attempted second site visit, nor has Petitioner
submitted any evidence that establishes a dispute concerning a material fact.

The definition of “operational” clearly states that a supplier must be “open to the public
for the purpose of providing health care related services . . .and [be] properly staffed. . .
to furnish these services.” 42 C.F.R. § 424.502 (emphasis added). Among other things, a
DMEPOS supplier must permit CMS or its agent to conduct on-site inspections to
ascertain supplier compliance with each of the enrollment standards, and the supplier
must be “accessible during reasonable business hours to beneficiaries and to CMS.” 42
C.F.R. § 424.57(c)(8) (emphasis added). A supplier is neither “open to the public” nor
“accessible,” if the supplier location is closed due to staff making patient deliveries or
sales calls. It is incumbent on Petitioner to make whatever reasonable arrangements are
necessary to keep its business open while allowing for patient deliveries. “A Medicare
supplier differs from a strictly private business in that it is an integral part of a publicly
run program. The requirement that a supplier be open at all times during normal business
hours reflects CMS’s determination that a supplier be available to beneficiaries to meet
their needs and to alleviate their medical conditions.” A to Z DME, LLC, DAB CR1995,
at 6 (2009).
Petitioner argues that evidence suggesting that a business is customarily operational can
overcome evidence of a brief absence. The Board has held, however, that the supplier
standard “would have no meaning if suppliers could deviate from their posted hours of
operation on a regular basis.” Ita Udeobong, d/b/a/ Midland Care Med. Supply and
Equipment, DAB No. 2324, at 7 (2010). In Udeobong, the petitioner admitted that it was
closed from noon until 1:00 p.m. every day for lunch which was outside of its regularly
posted hours of 10 am to 5 pm, Monday through Friday. The Board further held that
“[t]his problem would not be cured even if . . . its employees posted temporary signs
when they left, stating when they would return.” Jd. CMS and its contractors have
limited resources and cannot be compelled to attempt multiple on-site inspections during
a supplier’s posted business hours to determine if a supplier is complying with all
Medicare requirements.

V. Conclusion

Considering the undisputed facts in the light most favorable to the Petitioner, I find the
Petitioner was not operational when it was not open and accessible on two separate
occasions during its posted hours of operation. I grant CMS’s motion for summary
judgment and sustain the revocation of Petitioner’s supplier billing number.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

West Miami CMHC, Inc.,
(NPI No. 1588765226),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-10-875
Decision No. CR2315

Date: January 23, 2011

DECISION

I sustain the determination of the Centers for Medicare and Medicaid Services (CMS) to
revoke the Medicare billing privileges of Petitioner, West Miami CMHC, Inc. I do so
because Petitioner has failed to show that it met Medicare enrollment requirements to
supervise treatment of, or to provide Medicare covered items or services for, Medicare
patients as required for all Community Mental Health Centers (CMHCs).

I. Background

Petitioner is a CMHC in Miami, Florida. On February 18, 2010, SafeGuard Services
(SGS) conducted an on-site investigation on behalf of CMS at Petitioner’s facility.
Thereafter, SGS recommended that First Coast Service Options (FCSO), a CMS
contractor, revoke Petitioner’s Medicare provider number. On March 27, 2010, FCSO
sent a letter notifying Petitioner that its Medicare provider number and billing privileges
ad been revoked effective February 18, 2010. CMS Ex. 16; P. Ex. 6. The March 27,
2010 revocation letter provided specific findings that Petitioner moved, or changed its
address, without providing proper notification to Medicare. P. Ex. 6.

2

On June 22, 2010, a Hearing Officer affirmed FCSO’s decision to revoke Petitioner’s
provider number. CMS Ex. 17; P. Ex. 9. This reconsideration decision, based on 42
C.F.R. § 424.535(a)(5)(i), held that Petitioner was not operational and not furnishing
services to Medicare beneficiaries. Specifically, it found that SGS determined that
Petitioner was not operational because no employees, except the owner, were present
during the on-site inspection, and no patients were receiving, or had received, Medicare
covered services since January 2010.' Further, it found Petitioner was not providing core
services that would qualify it as a CMHC. The reconsideration decision also explained
that Petitioner had not provided evidence that it employed the appropriate staff to furnish
Medicare covered services to Medicare beneficiaries on an ongoing basis. It further
stated that Petitioner’s owner had told the SGS investigators that she could not afford to
operate, and she had stopped providing services. Jd.

On July 28, 2010, Petitioner filed a hearing request with the Civil Remedies Division
(CRD) of the Departmental Appeals Board (Board) to appeal the reconsideration
decision. This case was initially assigned to Board Member Leslie A. Sussan pursuant to
42 C.F.R. § 498.44, which permits a Board Member to hear appeals under part 498. An
Acknowledgment and Pre-hearing Order was sent to the parties on August 4, 2010. On
August 25, 2010, the parties jointly requested a thirty-day extension of time from the pre-
hearing deadlines, which was granted, to explore possible settlement. The parties could
not reach a settlement agreement and proceeded to file submissions.

On October 4, 2010, CMS filed a prehearing brief (CMS Br.), accompanied by 26
exhibits (CMS Ex. 1-26) and provided written direct testimony for two proposed
witnesses. On November 17, 2010, Petitioner filed its brief (P. Br.), accompanied by 42
exhibits (P. Exs. 1-42). Petitioner did not list any proposed witnesses and accordingly
did not include any written direct testimony. On October 25, 2010, this case was
reassigned to me for hearing and decision.

On December 2, 2010, I convened a telephone conference. During the conference, I
noted that neither Petitioner nor CMS had requested cross-examination of any witnesses.
Thus, in accordance with Board Member Sussan’s Acknowledgment and Pre-Hearing
Order, this case would typically be ready for my decision on the written record without
an in-person hearing. However, I also noted that during the course of my review of the
materials submitted, certain issues required clarification.

'The date of January 2010 is an apparent typographical error. CMS provided evidence
that, at the time of the February 18, 2010 on-site visit, no patients had received Medicare
covered services since January 23, 2009, not 2010. CMS Ex. 23, at 11.
3

I first inquired of CMS counsel whether the revocation of Petitioner’s Medicare billing
privileges on the specific basis that Petitioner moved its practice location without proper
notification to CMS, as stated in the original revocation notice letter, remained at issue in
this case. CMS counsel verified that Petitioner’s change of address was no longer at
issue. I also stated it was necessary to ensure that both parties were reasonably apprised
of, and given an opportunity to address, all of the remaining issues in controversy. I
noted that the June 22, 2010 reconsideration decision set forth CMS’s argument that
Petitioner was not operational because Petitioner failed to provide the core services
required to qualify as a CMHC. However, it appeared that Petitioner did not receive
clarification that the basis of its revocation was not an address change until it received the
reconsideration decision. To ensure a complete and accurate record, I directed CMS to
submit a supplemental brief explaining how each requirement to provide core services as
a CMHC applies in this case, especially with regard to the new evidence that Petitioner
presented after the reconsideration decision. Accordingly, I gave Petitioner an
opportunity to respond. Order Following Telephone Conference and Order for
Supplemental Brief, December 3, 2010.

On December 17, 2010, CMS filed its supplemental brief (CMS Supp. Br.). On
December 29, 2010, Petitioner filed its response (P. Supp. Br.), accompanied by a
witness list and two additional exhibits, labeled P. Ex. 1 and 2. I have relabeled
Petitioner’s first exhibit, P. Ex. 1, as P. Ex. 43, and I have relabeled P. Ex. 2 as P. Ex. 44
to avoid confusion with Petitioner’s initial submission of exhibits. In its response,
Petitioner made a late request to cross-examine one of the SGS investigators, Rebekah
Paone. P. Supp. Br. at 3.

IL. Applicable Law

A CMHC must be certified to participate in the Medicare program to be able to claim,
and to receive reimbursement for, services that it provides to Medicare beneficiaries. A
CMHC is defined as an entity that:

(1) Provides outpatient services, including specialized outpatient
services for children, the elderly, individuals who are chronically
mentally ill, and residents of its mental health service area who have
been discharged from in-patient treatment at a mental health facility;
4
(2) Provides 24-hour-a-day emergency care services;

(3) Provides day treatment or other partial hospitalization services,
or psychosocial rehabilitation services;

(4) Provides screening for patients being considered for admission to
State mental health facilities to determine the appropriateness of this
admission; and

(5) Meets applicable licensing or certification requirements for
CMHCs in the State in which it is located.

42 CFR. § 410.2; see 42 U.S.C. § 300x-2(c)(1)(B)-(E).

Federal regulations provide for revocation of a provider or supplier’s Medicare billing
privileges for a variety of reasons including:

(5) On-site review. CMS determines, upon on-site review, that the
provider or supplier is no longer operational to furnish Medicare
covered items or services, or is not meeting Medicare enrollment
requirements under statute or regulation to supervise treatment of, or
to provide Medicare covered items or services for, Medicare
patients. Upon on-site review, CMS determines that —

(i) A Medicare Part A provider is no longer operational to
furnish Medicare covered items or services, or the provider
fails to satisfy any of the Medicare enrollment requirements.

42 CFR. § 424.535(a)(5)(i).

III. Issue

The issue in this case is whether CMS had a legitimate basis to revoke Petitioner’s
Medicare billing privileges.
IV. Discussion

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

1. Petitioner has received due process despite the defective revocation notice.

The specific findings of CMS’s March 27, 2010 revocation letter based the revocation of
Petitioner’s Medicare billing number and billing privileges on Petitioner’s failure to
report its change of address to CMS within 30 days. CMS’s June 22, 2010
reconsideration decision, instead, focused its determination on Petitioner’s non-
operational status pursuant to 42 C.F.R. § 424.535(a)(5)(i).

CMS now argues that Petitioner was not providing any of the four core CMHC services
since January 2009, and therefore it was no longer operational to furnish Medicare
covered services. CMS Br. at 1. In response, Petitioner asserted that it met the definition
of operational. 42 C.F.R. § 424.502; P. Br. at 2,4. Further, Petitioner explains that a
CMHC need not render “CMHC-PHP (partial hospitalization program) services at an
ever constant pace and timing” but that federal law “requires the facility only to be
‘operational’ and be ready willing and able to render CMHC Medicare covered services.”
P. Br. at 2. In addition, Petitioner expressly denied its failure to report its change of
address within 30 days and provided CMS’s August 24, 2009 letter approving
Petitioner’s change of address. P. Ex. 7. Petitioner argued that the issue of Petitioner’s
operational status was raised for the very first time in CMS’s June 22, 2010
Reconsideration decision. P. Br. at 3.

During the December 2, 2010 telephone conference, CMS explained that it no longer
based the revocation on Petitioner’s alleged failure to notify CMS of its change of
address within thirty days. In its supplemental brief, CMS argued that Petitioner’s
procedural due process rights were not violated and cited persuasive authority for the
proposition that, after an administrative appeal has been commenced, a federal agency
may assert and rely on new or alternative grounds for the challenged action or
determination as long as the non-federal party has notice of, and a reasonable opportunity
to respond to, the asserted new grounds during the administrative proceeding. See Green
Hills Enters., LLC, DAB No. 2199 (2008). See also Abercrombie v. Clarke, 920 F.2d
1351, 1360 (7th Cir. 1990), cert. denied, 520 U.S. 809 (1991) (holding that defects in
formal notice may be cured during the course of an administrative proceeding, and due

6

process is satisfied as long as the party is reasonably apprised of, and given opportunity
to address, the issues in controversy); St. Anthony Hosp. v. Sec’y, Dep't of Health and
Human Servs., 309 F.3d 680, 708 (10th Cir. 2002) (“To establish a due process violation
[in an administrative proceeding] , an individual must show he or she has sustained
prejudice as a result of the allegedly insufficient notice.”).

Petitioner responded that it was “not contending that CMS deprived Petitioner of its due
process rights” based on the faulty revocation letter. Petitioner’s Supp. Br. at 2. lam
now satisfied that CMS has provided Petitioner with proper notification of its revocation,
and, now that Petitioner is not objecting that it had a reasonable opportunity to respond,
Petitioner has received due process in this matter.

2. Iwill accept Petitioner’s exhibits into the record before me.

Petitioner has submitted 44 exhibits that may not have been offered to the Hearing
Officer during the reconsideration process. The regulation at 42 C.F.R. § 405.874(c)(5)
provides that if a provider or supplier fails to provide evidence before the contractor’s
Hearing Officer issues a decision, the provider or supplier is precluded from introducing
new evidence at higher levels of the appeal process. However, an Administrative Law
Judge (ALJ) may consider new evidence if the supplier demonstrates good cause for the
late submission of the evidence. 42 C.F.R. § 498.56(e). Although Petitioner does not
argue due process issues before me, I find that good cause exists to give Petitioner a
reasonable opportunity to respond to the asserted new grounds during this administrative
proceeding.

Petitioner’s exhibits are relevant to my determination of whether a legitimate basis exists
to support CMS’s determination to revoke Petitioner’s Medicare billing privileges. In its
supplemental brief, CMS objected to the authenticity of Plaintiff's Exhibits 13, 19, 20,
21, 22, and 24 because Petitioner did not provide these exhibits to the SGS investigators
at the time of the on-site investigation, even though the investigators requested them.
CMS Supp. Br. at 5-6. CMS also objected to Plaintiff's Exhibit 15 and Plaintiff's
Exhibits 25-42 on relevance and materiality grounds because the exhibits are dated after
the date of the on-site visit and because the exhibits demonstrate other types of services
not included in the four core areas required to qualify as a CMHC. CMS Supp. Br. at 6-
7. Considering the defects involving CMS’s original revocation notice to Petitioner, I
will accept all of Petitioner’s exhibits as relevant to the showing of the nature of services
Petitioner may have provided. Nevertheless, I may only consider what CMHC core
services Petitioner may have been providing up until CMS’s on-site visit, and effective
7

date of revocation, February 18, 2010. Accordingly, I admit P. Exs. 1-44 and CMS Exs.
1-26 into the record.

3. Petitioner was not operational because it was not actively providing all
CMHC core services to patients on an ongoing basis.

42 C.F.R. § 424.535 provides:

(a) Reasons for revocation. CMS may revoke a currently enrolled
provider or supplier’s Medicare billing privileges and any
corresponding provider agreement or supplier agreement for the
following reasons:

sR

(5) On-site review. CMS determines, upon on-site review, that the
provider or supplier is no longer operational to furnish Medicare
covered items or services, or is not meeting Medicare enrollment
requirements under statute or regulation to supervise treatment of, or
to provide Medicare covered items or services for, Medicare
patients. Upon on-site review, CMS determines that—

(i) A Medicare Part A provider is no longer operational to furnish
Medicare covered items or services, or the provider fails to satisfy
any of the Medicare enrollment requirements.

The parties dispute the interpretation of this regulation. CMS argues that this regulation
requires that a CMHC must continue to provide the four cores services listed in 42 U.S.C.
§ 300x-2(c)(1)(B)-(E) and 42 C.F.R. § 410.2 on an ongoing basis. Petitioner chose not to
address its recent dearth of patient care and, instead, asserts that it is enough for a CMHC
to be ready and willing to render these four core services, even if it is not providing them
currently. P. Br. at 2.

CMS has made a prima facie case that Petitioner was not operational and provided the
written direct testimony of SGS Investigators Marisela Garrido and Rebekah Paone that
the owner of Petitioner, Ms. Nancy Saavedra, reportedly admitted that the facility had not
provided CMHC services since January 2009. CMS Ex. 14, at 3; CMS Ex. 15, at 2.
8

Ms. Garrido stated that all the medical records she had reviewed were old, dating back to
2008. CMS Ex. 15, at 2. When Ms. Saavedra was specifically asked for more recent
records, Ms. Garrido reported that Ms. Saavedra responded that there were no records
beyond January 2009 because no services were rendered since that time. Jd.

Petitioner has not provided the written direct testimony of any of its witnesses, including
Ms. Saavedra, to dispute Ms. Garrido’s testimony. Also supportive of the investigator’s
testimony is the fact that Petitioner has not submitted any Medicare reimbursement
claims with a date of service to a beneficiary after January 2009. CMS Exs. 23-25. The
most recent date of Medicare service that Petitioner provided was January 23, 2009,
according to the provider reimbursement database. CMS Ex. 23, at 11.

Petitioner’s exhibits also confirm this clear lack of recent patient care with regard to two
of the specific CMHC core services. Petitioner Exhibit 23, which is a chart entitled
“Claims Billed and Appealed,” shows that Petitioner has not provided any partial
hospitalization or psychosocial rehabilitation services since January 23, 2009. Petitioner
Exhibit 13 entitled “Billing Summary 2009-2010” also shows that the last date of
services for partial hospitalization services prior to the February 18, 2010 on-site visit
was January 23, 2009, a period of approximately thirteen months before Petitioner’s on-
site visit and effective revocation date. Petitioner submitted only one exhibit as evidence
of actually providing partial hospitalization services. P. Ex. 32. However, it does not
assist Petitioner because it is a medical record of purported partial hospitalization services
rendered after the on-site visit date of February 18, 2010. The only evidence that
Petitioner submitted to show that it provides the core service of screening for patients
being considered for admission to State mental health facilities is a screening services
agreement with Citrus Health Network. P. Ex. 24.

Prior ALJ decisions have held that a CMHC will not qualify to participate in Medicare if
it only establishes that it has the capability to provide the necessary services but fails to
establish that it actually provides such services. See e.g., Grandview Behavioral Health
Ctr., DAB CR998 (2003); Psychstar of America, DAB CR645 (2000), Counseling and
Therapeutics Ctr., L.L.C., DAB CR696 (2000). A CMHC must provide all of the
services required in the regulation. Allowing facilities that claim to have the capacity to
provide the services of a CMHC to participate in Medicare, without actually proving that
they are providing the services, would allow entities that are not CMHCs to participate in
Medicare. Grandview Behavioral Health Ctr., DAB CR998, at 9 (2003). A facility must
provide “active, consistent, and ongoing patient services” to receive Medicare
certification as a CMHC. Comprehensive Behavioral Healthcare, DAB CR890 (2002).
9

These requirements are consistent with the State Operations Manual (SOM), CMS’s
guidance to surveyors and contractors. The SOM provides that a CMHC must provide
the core services at the same time of certification, not at some future time. SOM §
2250G. As a precondition to certification, in a three-month period, the CMHC must have
served at least ten non-Medicare patients, and, for a minimum of three patients, the
records must show that the CMHC provided the core services of screening services for
admission to State mental health facilities and day treatment, or other partial
hospitalization or psychosocial rehabilitation services. Jd. Further, a CMHC is expected
to continue to provide the core services once it has been approved for Medicare
participation. “Providing the [core services] . . . is ongoing and not a one time qualifying
event for Medicare participation.” Jd. CMS considers an on-site inspection that reveals
the failure of a CMHC to provide two or more of the core services a “most egregious”
CMHC program offender suitable for termination. SOM § 22520.

Considering all of the interpretative guidance from prior ALJ decisions and the SOM, I
find it reasonable for CMS to have concluded, when CMS decided to uphold Petitioner’s
revocation, that Petitioner was not operational with regard to the CMHC core service of
partial hospitalization services, or psychosocial rehabilitation services, because it had not
provided any relevant patient treatment within approximately thirteen months of the on-
site visit. Further, with regard to the other required CMCH core service of patient
screening, I find it is not enough to establish operational status by only showing
agreements to provide this service without showing any recent patient treatment, or any
patient treatment at all, as the case was here. I see no need to make any judgment on the
efficacy of the agreements themselves without any treatment records. Considering
Petitioner has not made an acceptable showing that it provided the other core CMHC
services, and considering that a CMHC is required to provide all four core areas of
service, I decline to determine whether Petitioner was providing outpatient services” and
24-hour a day emergency care services, as it would be immaterial to the outcome of this
decision. Further, I deny Petitioner’s request to cross-examine one of the SGS
investigators. Despite her testimony, the undisputed and determinative fact remains that,
at the time of the on-site visit, Petitioner had not provided patient services in two of the
four CMHC core service areas since, at latest, January 2009.

°This was the one CMHC core service area for which Petitioner appears to have provided
actual treatment records within a relevant time period. P. Exs. 19-20.
10
V. Conclusion

I sustain CMS’s determination to revoke Petitioner’s billing privileges on the basis that it
was not operational as a CMHC because it was not actually providing all required core
services to patients.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Athanasios Mastrokostas
(O.L. File No. 2-03-40227-9),

Petitioner
Vv.

The Inspector General
Department of Health and Human Services.

Docket No. C-11-112
Decision No. CR2313

Date: January 24, 2011

DECISION

The request for hearing of Petitioner, Athanasios Mastrokostas, is dismissed pursuant to
42 CFR. § 1005.2(e)(1).

I. Background

The Inspector General (I.G.) notified Petitioner by letter dated August 31, 2005, that he
was being excluded from participation in Medicare, Medicaid, and all federal health care
programs for a minimum period of thirteen years pursuant to section 1128(a)(4) of the
Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(4)). The I.G. cited as the basis for
Petitioner’s exclusion his felony conviction in the Kings County Supreme Court, State of
New York, of a criminal offense related to the unlawful, manufacture, distribution,
prescription, or dispensing of a controlled substance. The I.G. further notified Petitioner
that his period of exclusion was extended to thirteen years based on two aggravating
factors. I.G. Exhibit (I.G. Ex.) 1.
On November 22, 2010, the Secretary of Health and Human Services (the Secretary),
received a letter from Petitioner in which he requested that Secretary Sebelius reduce his
period of exclusion to five years. The request was treated as a request for hearing and
forwarded to the Departmental Appeals Board (DAB) for assignment to an administrative
law judge (ALJ). On December 15, 2010, I convened a prehearing conference by
telephone, the substance of which is memorialized in my order dated December 16, 2010.
During the prehearing conference, the I.G. asserted that I have no jurisdiction as
Petitioner’s request for hearing was not timely filed. Petitioner did not deny that his
request for hearing was not filed within sixty days of his receipt of the I.G. notice that he
was being excluded. Accordingly, I set a briefing schedule to permit resolution of the
jurisdictional issue raised by the L.G.

On January 4, 2011, the L.G. filed a motion to dismiss the request for hearing on grounds
that the request for hearing was not timely filed. The I.G. also filed IG. Exs. | through 6.
On January 10, 2011, Petitioner filed his brief in opposition to the I.G.’s motion to
dismiss (P. Br.) with Petitioner’s Exhibit (P. Ex.) 1. On January 19, 2011, the I.G. filed a
motion for leave to file a reply brief with the reply brief attached. The I.G.’s motion is
granted, and the LG. reply brief is accepted. No objections have been made to any of the
offered exhibits and LG. Exs. 1 through 6 and P. Ex. | are admitted as evidence.

II. Discussion
A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights to a
hearing by an ALJ and judicial review of the final action of the Secretary. The Secretary
has provided by regulation that an excluded individual or entity must request a hearing in
writing to the DAB, signed by the petitioner or counsel, within sixty days after receiving
the notice of exclusion. The regulation also provides that receipt of the notice of
exclusion is presumed to be five days after the date on the notice, unless there is a
reasonable showing to the contrary. 42 C.F.R. § 1005.2(c). I am required to dismiss a
request for hearing that is not filed timely. 42 C.F.R. § 1005.2(e)(1).

B. Issue

Whether Petitioner’s request for hearing must be dismissed because it was not
filed timely.

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

My conclusions of law are set forth in bold followed by the pertinent findings of fact and
analysis.
1. Petitioner’s request for hearing was not filed timely.
2. Petitioner’s request for hearing must be dismissed.

Petitioner does not deny that the I.G. notice of exclusion was dated August 31, 2005. He
also does not dispute that he received the notice of exclusion by not later than September
6, 2005. ' Petitioner does not deny that the I.G.’s notice letter had an attachment that
advised him of his right to file a request for hearing within sixty days of receipt of the
notice. Petitioner does not deny that his request for hearing had to be mailed not later
than November 7, 2005” to be timely. There is also no dispute that Petitioner did not file
a request for hearing before November 7, 2005.°

Petitioner states in his response to the motion to dismiss, that when he received the notice
of exclusion he sent it to his attorney who advised Petitioner to wait until the end of the
minimum five-year period of exclusion to request that the period of exclusion be reduced.
The evidence supports Petitioners assertion as it shows that Petitioner made two requests
to the I.G. for a reduction of the exclusion to five years, the first dated September 11,
2009 and the second July 8, 2010. Both requests were denied by the LG. I.G. Exs. 3-6.

Petitioner implies that he was unaware of the requirement to file a request for hearing
within sixty days. Petitioner argues that the I.G. notice was not clear regarding the time
limit for requesting a hearing. P. Br. at 1-2. Petitioner’s arguments are not credible and
without merit.* Petitioner indicates in his request for hearing that he previously had a

' The fifth day after the I.G.’s August 31, 2005 notice falls on September 5, 2005, which
was a legal holiday that the federal government observed. The delivery of the I.G. notice
is presumed to have occurred the next business day, which is September 6, 2005. 42
C.F.R. § 1005.12(b).

> Because the sixtieth day following the presumed receipt of the I.G. notice fell on
Saturday, November 5, 2005, Petitioner had until the next business day, Monday,
November 7, 2005, to file his request for an ALJ hearing. 42 C.F.R. § 1005.12(a).

> | infer that the Petitioner’s undated request to Secretary Sebelius was not submitted
before November 7, 2005, as Secretary Sebelius was appointed Secretary after that date.

* Petitioner also argues that the I.G. notices are unclear as to when he could file a request
for reinstatement. P. Br. at 2. However, whether or not the language in the I.G. notices
related to reinstatement is clear or not does not negatively impact my conclusion that the
language that advised Petitioner of his right to request a hearing in writing within sixty
days is clear and unequivocal.
license to practice pharmacy in the State of New York. Considering the facts that
Petitioner was a licensed pharmacist, the complexity of his letter to the LG. (LG. Ex. 5),
the complexity of his request for hearing, and his ability to participation in the prehearing
conference, I find Petitioner to be of at least average intelligence or higher and capable of
understanding the I.G. notice. The I.G.’s August 31, 2005 notice of exclusion
specifically states that Petitioner’s appeal rights are set forth in the enclosure to the
notice. The enclosure to the LG. notice clearly states:

If you disagree with this action, you may request a
hearing before an administrative law judge in
accordance with 42 CFR 1001.2007. Such a request
must be made in writing within 60 days of your
receiving the OIG’s letter of exclusion ....

1.G. Ex. 1, at 2-3. The language is clear and unequivocal and I infer that Petitioner had
the ability to understand the language given his level of intelligence. Neither Petitioner
nor his counsel may credibly argue that the requirement to request a hearing in writing
within sixty days of receipt of the notice of exclusion was not clearly stated and
understandable. Rather, Petitioner admits that a tactical judgment was made by him and
counsel to not file a request for hearing but to seek other relief near to the end of the first
five years of the period of exclusion.

Petitioner asserts that he sent a letter to the Office of Personnel Management (OPM),
regarding an OPM notice of debarment, and he argues that letter should be treated as his
request for hearing. P. Br. at 2-3; P. Ex. 1. The OPM letter offered as evidence by
Petitioner is dated December 2, 2007 and refers to Petitioner’s November 14, 2005 letter
contesting the OPM notice dated October 20, 2005 that proposed to debar Petitioner. P.
Ex. 1. Even if I considered Petitioner’s November 14, 2005 letter to OPM as his request
or a hearing, it is untimely as it was dated after the November 7, 2005 deadline for
requesting a hearing. Furthermore, the August 31, 2005 I.G. notice of exclusion clearly
advised Petitioner that a request for hearing had to be mailed to the Civil Remedies
Division of the DAB. The requirement to file the request for hearing with the DAB was a
matter within Petitioner’s ability to comprehend. Thus, Petitioner’s suggestion that he
was unaware that a request for hearing had to be filed with the DAB and not OPM is not
credible.

Petitioner has failed to show that he sent a written request for a hearing to the DAB
within sixty days of his receipt of the August 31, 2005 notice of exclusion. I have no
authority to extend the period to request a hearing even for good cause or to waive the
late filing. Accordingly, I must dismiss the request for hearing pursuant to 42 C.F.R.
§ 1005.2(e)(1).
Il. Conclusion

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

/s/

Keith W. Sickendick
Administrative Law Judge