Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

The Inspector General of the Social Security Administration,
Petitioner,
v.
Denisse Del Pilar Bonilla,
Respondent.
Docket No. C-14-1678
Decision No. CR4435

Date: November 17, 2015

DECISION

Respondent, Denisse Del Pilar Bonilla, was awarded Social Security disability insurance
benefits in April 2008. In July 2013, she responded to a series of questions the Social
Security Administration (SSA) posed about her impairments and her abilities. The
Inspector General (IG) for SSA now charges that she violated section 1129 of the Social
Security Act (Act) because, in her responses, she knowingly made false statements and
misrepresentations of material fact regarding her alleged disability, functional abilities,
and activities. SSA proposes imposing against her a $20,000 civil money penalty (CMP).

For the reasons set forth below, I agree that Respondent Denisse Bonilla knowingly
misrepresented material facts to SSA for its use in determining her continuing eligibility
for disability insurance benefits, and I consider $20,000 a reasonable penalty.

Background

Section 1129(a)(1) of the Act subjects to penalty any person (including an organization,
agency, or other entity) who:
(A) makes, or causes to be made, a statement or representation of a
material fact, for use in determining any initial or continuing right to or the
amount of monthly insurance benefits under title II . . . that the person
knows or should know is false or misleading, '

(B) makes such a statement or representation for such use with knowing
disregard for the truth, or

(C) omits from a statement or representation for such use, or otherwise
withholds disclosure of, a fact which the person knows or should know is
material to the determination of any initial or continuing right to or the
amount of monthly insurance benefits under title II . . . if the person knows,
or should know, that the statement or representation with such omission is
false or misleading or that the withholding of such disclosure is

misleading ....

See also 20 C.F.R. § 498.102(a) (authorizing the IG to impose a penalty against any
person who has made a statement or representation of a material fact for use in
determining any initial or continuing right to or amount of title II benefits, and who

new, or should have known, that the statement or representation was false or misleading,
or who omitted a material fact, or who made such a statement with “knowing disregard
for the truth.”)

The Act defines a material fact as one that “the Commissioner of Social Security may
consider in evaluating whether an applicant is entitled to benefits under title Il... .” Act
§ 1129(a)(2); 20 C.F.R. § 498.101.

The Commissioner of Social Security has delegated to the IG the authority to impose
penalties under section 1129. See 20 C.F.R. § 498.102.

In this case, the IG contends that, in responding to the continuing-disability-review
questions posed by SSA, Respondent Denisse Bonilla and her husband, Javier,
deliberately and repeatedly misrepresented her functional abilities so that she could
continue receiving Social Security disability insurance benefits.” By letter dated June 5,
2014, the IG advised Respondent Denisse Bonilla of his determination and the proposed
penalty. SSA Ex. 8. Respondent requested a hearing.

' Title II of the Act governs the Social Security disability insurance program.

> Javier Bonilla’s appeal, docketed as C-14-1677, was heard in tandem with this case.
On April 28, 2015, I heard jointly this appeal and the related appeal of Javier Bonilla (C-
14-1677). Ms. Erin Justice appeared, representing the SSA IG. Respondent Denisse
Bonilla and her husband, Javier, represented themselves. We convened via video
teleconference from the offices of the Departmental Appeals Board in Washington, D.C.
Ms. Justice, the parties, and their witnesses appeared from Tampa, Florida.

The parties have filed pre-hearing briefs (SSA Br.; R. Br.) and post-hearing briefs (SSA
Post-hrg. Br.; R. Post-hrg. Br.). I have admitted into evidence SSA Exhibits (SSA Exs.)
1-19 and Respondent’s Exhibits (R. Exs.) 1-3. Order Following Prehearing Conference
at 2 (March 20, 2015); Transcript (Tr.) at 6.

Issues
The issues before me are:

1. Did Respondent Denisse Bonilla make, or cause to be made, to SSA a statement or
representation of a material fact that she knew or should have known was false or
misleading, for SSA’s use in determining her right to Social Security Disability
Insurance benefits (title II) and/or the amount of those benefits, or did she omit a
material fact or make such a statement with knowing disregard for the truth; and

2. if so, is the $20,000 proposed penalty reasonable?
Discussion

I. Respondent Denisse Bonilla violated section 1129 of the
Act because she knowingly made false statements and
representations to SSA for its use in determining her
ongoing eligibility for Social Security disability insurance
benefits.*

To satisfy the basic definition of “disability,” an individual must have a severe medically
determinable physical or mental impairment that makes her unable to perform her past
relevant work or any other substantial gainful work. 20 C.F.R. § 404.1505.

In April 2008, Respondent Denisse Bonilla was awarded disability insurance benefits,
effective April 2006. SSA Ex. 2.

* My findings of fact/conclusions of law are set forth, in italics and bold, in the
discussion captions of this decision.
After finding someone disabled, SSA must occasionally reevaluate the individ
impairments to determine if she is still eligible for benefits, a process referred
“continuing disability review.” If medical or other evidence establishes that t

ual’s
toasa
e recipient

is no longer disabled, her benefits will end. 20 C.F.R. §§ 404.1589, 404.1590. In this
case, on July 10, 2013, SSA sent Denisse Bonilla two forms: a Continuing Disability
Review Report and a Function Report. SSA Exs. 3, 4. The agency directed her to

complete the documents and return them to SSA, which she did, completing t
July 9 and August 26, 2013. SSA Ex. 3 at 12; SSA Ex. 4 at 1. Among her
representations were the following:

e forms on

e She claimed that she could not concentrate and was afraid of the outside world.

SSA Ex. 4 at 1.

e She said that, from the time she woke up until she went to bed, she
home. SSA Ex. 4 at 2.4

stayed

e She claimed that she was afraid to go outside because she had panic attacks

and that she went out only once or twice a month. SSA Ex. 4 at 4.

e Although she initially checked that she could drive, she scratched out that

response and indicated that she did not walk, drive, or take public
transportation, but could only ride in a car. SSA Ex. 4 at 4.

mn

x. 4 at 4.

e said that she shopped by computer with the assistance of her husband. SSA

e She said that her ability to handle money had changed because she could not “go

be accompanied. SSA Ex. 4 at 5.

out to do what most people do.” She went to the doctor when necessary but had to

e She said: “I can’t go out in public where [too] many people [are] around” because

“fears of going out of [her] house, [e]specially of tall buildings.” SSA

SSA’s Disability Determination Services was obviously skeptical about her cl:

“[I] get panic attack[s].” SSA Ex. 4 at 6. She stated that she suffered unusual

Ex. 4 at 7.

aims

because it investigated and determined that Respondent Denisse Bonilla was not disabled.

SSA Ex. 6. SSA notified Respondent Denisse Bonilla that her benefits would

end as of

January 2014. Respondent appealed. In her request for reconsideration, she checked that
her condition had changed since she last completed a disability report and described those

* Although Respondent Denisse Bonilla made numerous false statements, the

IG bases

the CMP on just four of them. See I.G. Br. at 8. I highlight in bold those statements that

the IG specifically points to as false and relies on to justify the CMP.
changes as “panic attacks, anxiety.” SSA Ex. 5 at 1. She wrote that she didn’t shower
because of her depression and “can’t function.” She said that she could not leave the
house due to panic attacks. SSA Ex. 5 at 5.

Overwhelming evidence gives lie to Respondent Denisse Bonilla’s claims that her
anxiety and panic attacks made her almost totally incapacitated.

Respondent’s school involvement. Investigators spoke to the principal and teacher of the
school that Respondent Denisse Bonilla’s children attended during the 2012-2013
academic year.

In a written statement, the (then) school principal confirmed that, from August 2012
through June 2013, Respondent’s children attended her school. During that time, she
observed Ms. Bonilla. SSA Ex. 17. The principal “regularly did the car line” and
observed Respondent there. She also saw her as a “walk-in” (walking her child into the
classroom). Tr. 11. According to the principal, Respondent Denisse Bonilla also
attended parent-teacher conferences and communicated effectively in English. She was
“friendly, sociable and her behavior appeared appropriate.” She dressed appropriately
and maintained good hygiene. SSA Ex. 17; SSA Ex. 13 at 2-3 (Montgomery Decl. ff 11,
12, 13, 14, 15); Tr. 10, 12.

One of the teachers at the school told investigators that the Bonillas’ son was in her class
and that she saw Denisse Bonilla weekly from October 2012 through June 2013.
Respondent Denisse Bonilla dropped her child off at school “most mornings.” She was
not accompanied by her husband or anyone else (other than her child). The two women
engaged in conversation about once or twice a month. Those conversations were in
English. (The teacher does not speak Spanish). The teacher agreed that Ms. Bonilla
appeared to be “‘a socially interactive person,” and their interactions were “normal.” SSA
Ex. 13 at 2 (Montgomery Decl. 7, 8, 9, 10); Tr. 15-19.

Respondent’s automobile. As noted above, the school principal observed Respondent
Denisse Bonilla “in the car line.” Other compelling evidence undercuts Respondent
Denisse Bonilla’s claim that she was unable to drive.

Throughout the time she claimed to be disabled by panic attacks, Respondent Denisse
Bonilla had a Florida driver’s license, which was originally issued in January 2004 (SSA
Ex. 10 at 7) and renewed in November 2009 (SSA Ex. 10 at 2, 6). In obtaining the
license, she denied that she suffered from any mental disorder or disease and declared
that she had no physical or mental disabilities that would affect her driving. SSA Ex. 10
at 8. No evidence in her state driving records suggests that she ever reported to the State
Department of Motor Vehicles any such disability. SSA Ex. 10. In renewing her license,
she would have been required to affirm that she had no disabilities that would affect her
driving. SSA Ex. 6 at 4; see SSA Ex. 10 at 6.

On July 23, 2013, Respondent Denisse Bonilla purchased a white 2013 Kia Optima. SSA
Ex. 11. According to the Bonillas, she made the purchase because Javier Bonilla’s poor
credit rating precluded him from obtaining financing. Her credit was better. Tr. 25. The
dealership sales manager told Tom Montgomery, financial crime investigator for the
Florida Cooperative Disability Investigative Unit, that Respondent Denisse Bonilla was
the sole purchaser; she completed and signed all necessary financial and sales documents,
which were written in English. He agreed that she was a “socially interactive” person.
She and her husband drove the car away, although the sales manager was not certain who
was driving. SSA Ex. 13 at 1-2 (Montgomery Decl. {J 2, 3, 4, 5, 6); see SSA Ex. 11; Tr.
21-25.

Investigator Montgomery testified, credibly, that, on September 25, 2013, he observed
Respondent Denisse Bonilla driving a white 2013 Kia Optima, which was registered in
er name. He saw her drive to her residence and park the car in her driveway. She then
left the car and entered her home. SSA Ex. 13 at 3 (Montgomery Decl. J 16, 17); SSA
Ex. 6 at 5 (offering a more detailed description of the investigator’s observations); SSA
Ex. 18 (video surveillance of Respondent Denisse Bonilla, taken September 25, 2013);
see SSA Ex. 10 at 4, 11 (indicating vehicle registration).

Travel. During this time that Respondent Denisse Bonilla was claiming to be disabled
because her anxiety and panic attacks confined her to her home, she was vacationing at
Disney Quest, Busch Gardens, and in New York City, as well as other locations, and
posting pictures from these excursions on the Bonilla’s personal Facebook account. SSA
Ex. 12. The pictures show an active and engaged woman vacationing with her family.

Respondent’s statements to examining psychologist. At SSA’s direction, on

September 3, 2013, Respondent Denisse Bonilla was examined by a psychologist to
determine her ongoing eligibility for benefits. She told the examiner that she had only an
8" grade education and that her English was limited, so much so that her husband acted
as a translator.» SSA Ex. 19 at 1, 2. She claimed that she had suffered from anxiety and
panic attacks since “9-11,” when she witnessed a plane hitting the twin towers in New
York. She complained of flashbacks and auditory hallucinations of airplanes. SSA Ex.

19.

These statements were inconsistent with statements she earlier gave to SSA. In her initial
application for benefits, filed in 2005, she admitted that she speaks and understands
English. SSA Ex. 19 at 1. In that initial application, she also said that she had completed
two years of college and trained as a dental assistant. SSA Ex. 19 at 10. At that time, she
claimed that she was disabled by breast cancer. SSA Ex. 19 at 5. As recently as July

> An individual’s education and proficiency in English can affect her eligibility for
disability benefits. See 20 C.F.R. Part 404, subpart P, Appendix 2.
2013, on the Continuing Disability Review Report, she admitted that she spoke and
understood English. SSA Ex. 3 at 1.

She completed all of her SSA forms and her automobile purchase documents in English.
The family’s Facebook postings and frequent interactions with school teachers were all in
English. Respondent’s participation in this hearing was coherent and in English.

Respondent Denisse Bonilla’s explanations. Respondent Denisse Bonilla offers
inconsistent defenses to the overwhelming evidence against her. On the one hand, she
claims that she did not intentionally make the false representations. On the other hand,
she claims that those representations are correct.

With respect to the misrepresentations upon which this CMP is based, she claims that she
misunderstood SSA’s questions: “I answered the questions according to the way the

Social Security advised .... They advised that I answer the questions according to the
way I felt on that day.”; “I answered the question as it was asked.”; ”[F]or me ‘go out’
means to dress up and go somewhere. ... Reason why I answered the way that I did.”

But at the same time, she reiterates that she is unable to drive and doesn’t leave the house
due to her panic attacks, which shows that she fully intended to convey that information
to SSA. R. Br.

She does the same with regard to her proficiency in English. She denies telling the
psychologist that she spoke limited English but also claims that Javier translates for her
because she speaks limited English. But then she says “We never claimed that Denisse
didn’t speak English” and admits that her SSA doctor’s appointments and this hearing
were conducted in English. R. Post-hrg. Br. at 1.

With respect to the pictures posted on Facebook, Respondent Denisse Bonilla was
evasive about when she went to the various vacation spots (Disney Quest, Busch
Gardens), only insisting that her children were “small . . . not school age yet.” Tr. 50, 52,
55. She conceded that the Bonillas posted the pictures on July 26, 2011, but maintained
that they were taken prior to 2005. Tr. 43. But this was not credible because the smaller
of the two children in those pictures was born in 2005 and the children in the pictures are
not infants. SSA Ex. 12 at 7-11; Tr. 56;° see SSA Ex. 16 at 1 (Young Decl. 4 1)

One of the photographs shows Respondent Denisse Bonilla standing with her family next
to the subway sign for the Times Square/42™ Street subway station. This is hardly a
place one would expect to find someone who is afraid to be in public. SSA Ex. 12 at 11.
That picture was, in fact, taken sometime in or after July 2011. In the picture’s
background is a billboard advertising the movie, Cowboys and Aliens, which was

® Respondent Denisse Bonilla testified that her younger child was born in 2008, but she
later amended that to say that she was born in 2005. Tr. 44, 56.
released in July 2011. SSA Ex. 12 at 11; May 18, 2015 Post-hearing Order. Respondent
Denisse Bonilla holds a shopping bag and admitted that she had been shopping that day.
Tr. 57. This is also surprising for someone who is only able to shop on-line with the
assistance of her husband.

Finally, although Respondent tacitly acknowledges that SSA witnesses observed and
spoke to her and detected no signs of mental illness or other abnormal behavior, she
points out that they are not physicians and not qualified to determine whether she
suffered from a disabling mental impairment. R. Post-hrg. Br. But the issue here is not
er medical diagnosis; the issue is whether she misrepresented her daily activities and
abilities. The credible testimony of these witnesses establishes that she did. She could
not have stayed home all day if she regularly took her child to school. She was not

aving panic attacks when she went outside if she regularly took her child to school,
engaged the teacher in normal conversation, participated normally in the purchase of a
car, and went on trips and vacations, including to amusements parks and even New York
City. Someone who is afraid of crowds would not be shopping in and around Times
Square. Further someone who is afraid of crowds would not select frequent vacations to
amusement parks (at least 6 trips since the onset of her disability) and New York City nor
attend stadium events. Tr. 51, 53,54; SSA Ex. 12. Additionally, her vacation in
Manhattan is a surprising choice for someone with a debilitating fear of “tall buildings.”
SSA Ex. 12 at 7, 8, 9, 11, 19.

Compelling evidence thus establishes that Respondent Denisse Bonilla made false
statements and representations to SSA for its use in determining her ongoing eligibility
for Social Security disability benefits.

2. The IG proposes a reasonable penalty, $20,000,
against Respondent Denisse Bonilla.

The IG may impose a CMP of not more than $5,000 for each false statement or
misrepresentation. Act § 1129(a)(1); 20 C.F.R. §§ 498.103(a), 498.104.

I now apply the regulatory criteria to assess the appropriateness of the penalty. I am
specifically authorized to affirm, deny, increase, or reduce the penalties proposed by the
IG. 20 C.F.R. § 498.220. In determining the appropriateness of the penalty, I must
consider: 1) the nature of the statements and representations and the circumstances under
which they occurred; 2) the degree of culpability of the person committing the offense; 3)
the history of prior offenses of the person committing the offense; 4) the financial
condition of the person committing the offense; and 5) such other matters as justice may
require. 20 C.F.R. § 498.106.

I note that Respondent Denisse Bonilla has no history of prior offenses.
With respect to her financial condition, the respondent bears the burden of establishing
that her financial condition prevents her from paying the penalty. SSA v. Clara Sloan,
DAB CR1081 (2003), Recommended Decision to Decline Review, App. Div. Dkt. No. A-
04-03 at 2 (Feb. 9, 2004) (finding “no basis to disturb the ALJ’s . . . legal conclusions.”).
Respondent Denisse Bonilla initially failed to return to the IG a financial disclosure form
for its use in determining her ability to pay a penalty. See SSA Ex. 7. The hearing
request that she and her husband filed jointly includes Javier’s financial disclosure form,
which attributes no income or assets to Respondent Denisse Bonilla — even the house is
purportedly owned individually by Javier. On the other hand, the form also lists the 2013
Kia, which we know Denisse Bonilla owns. Respondent Denisse Bonilla failed to submit
reliable and comprehensive evidence of her financial condition. However, even
accepting that her income and assets are limited, weighing this against the other factors, I
affirm the amount of the CMP.

With respect to the other factors, I find that her dissembling has been substantial and
repeated, continuing up through the time of her hearing and beyond. She has made
substantially more than four false statements to SSA. As listed above, in her August 26,
2013 function report, she made eight false statements. SSA Ex. 4 at 1- 2, 4, 5-7. In her
request for reconsideration, she made at least three. SSA Ex. 5 at 1,5. And she has
misrepresented her abilities in other respects, particularly with respect to her level of
education and fluency in English.

She has offered no evidence to mitigate her offenses, but persists in claiming that she
made no false statements. Her degree of culpability is substantial and would justify a
CMP greater than that imposed here.

Finally, I note that the integrity of the disability system depends on each claimant
accurately describing her functional abilities, so that SSA can determine whether she
qualifies for benefits. Where, as here, a claimant deliberately misrepresents her
functional capacity, she undermines the integrity of that system.

Conclusion

Respondent Denisse Bonilla violated section 1129 of the Act when she knowingly
misrepresented material facts to SSA for its use in determining her eligibility for Social
Security disability insurance benefits. I consider the $20,000 CMP reasonable.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

The Inspector General of the Social Security Administration,
Petitioner,
v.
Javier Bonilla,
Respondent.
Docket No. C-14-1677
Decision No. CR4434

Date: November 17, 2015

DECISION

The Inspector General (IG) for the Social Security Administration (SSA) charges that
Respondent, Javier Bonilla, violated section 1129 of the Social Security Act (Act)
because he knowingly made false statements and misrepresentations of material fact
regarding his wife’s alleged disability, functional abilities, and activities so that she
would continue receiving disability insurance benefits. SSA proposes imposing against
him a $25,000 civil money penalty (CMP).

For the reasons set forth below, I agree that Respondent Javier Bonilla knowingly
misrepresented material facts to SSA for its use in determining his wife’s continuing
eligibility for disability insurance benefits, and I consider $25,000 a reasonable penalty.

Background

Section 1129(a)(1) of the Act subjects to penalty any person (including an organization,
agency, or other entity) who:
(A) makes, or causes to be made, a statement or representation of a
material fact, for use in determining any initial or continuing right to or the
amount of monthly insurance benefits under title II . . . that the person
knows or should know is false or misleading, '

(B) makes such a statement or representation for such use with knowing
disregard for the truth, or

(C) omits from a statement or representation for such use, or otherwise
withholds disclosure of, a fact which the person knows or should know is
material to the determination of any initial or continuing right to or the
amount of monthly insurance benefits under title II . . . if the person knows,
or should know, that the statement or representation with such omission is
false or misleading or that the withholding of such disclosure is

misleading ....

See also 20 C.F.R. § 498.102(a) (authorizing the IG to impose a penalty against any
person who has made a statement or representation of a material fact for use in
determining any initial or continuing right to or amount of title II benefits, and who

new, or should have known, that the statement or representation was false or misleading,
or who omitted a material fact, or who made such a statement with “knowing disregard
for the truth.”)

The Act defines a material fact as one that “the Commissioner of Social Security may
consider in evaluating whether an applicant is entitled to benefits under title Il... .” Act
§ 1129(a)(2); 20 C.F.R. § 498.101.

The Commissioner of Social Security has delegated to the IG the authority to impose
penalties under section 1129. See 20 C.F.R. § 498.102.

In this case, Respondent Javier Bonilla’s wife, Denisse Del Pilar Bonilla, was awarded
Social Security disability insurance benefits in April 2008. SSA Ex. 2. The IG contends
that, in responding to questions that SSA posed on a “Third Party Function Report,”
Respondent Javier Bonilla deliberately and repeatedly misrepresented his wife’s
functional abilities so that she could continue receiving those benefits.’ By letter dated
June 5, 2014, the IG advised Respondent Javier Bonilla of his determination and the
proposed penalty. SSA Ex. 5. Respondent requested a hearing.

' Title II of the Act governs the Social Security disability insurance program.

> Denisse Del Pilar Bonilla’s appeal, docketed as C-14-1678, was heard in tandem with
this case.
On April 28, 2015, I heard jointly this appeal and the related appeal of Denisse Del Pilar
Bonilla (C-14-1678). Ms. Erin Justice appeared, representing the SSA IG. Respondent
Javier Bonilla and his wife, Denisse, represented themselves. We convened via video
teleconference from the offices of the Departmental Appeals Board in Washington, D.C.
Ms. Justice, the parties, and their witnesses appeared from Tampa, Florida.

The parties have filed pre-hearing briefs (SSA Br.; R. Br.) and post-hearing briefs (SSA
Post-hrg. Br.; R. Post-hrg. Br.). I have admitted into evidence SSA Exhibits (SSA Exs.)
1-16 and Respondent’s Exhibits (R. Exs.) 1-4. Order Following Prehearing Conference
at 2 (March 20, 2015); Transcript (Tr.) at 6.

Issues
The issues before me are:

1. Did Respondent Javier Bonilla make, or cause to be made, to SSA a statement or
representation of a material fact that he knew or should have known was false or
misleading, for SSA’s use in determining Denisse Bonilla’s right to Social
Security Disability Insurance benefits (title II) and/or the amount of those benefits,
or did he omit a material fact or make such a statement with knowing disregard for
the truth; and

2. if so, is the $25,000 proposed penalty reasonable?
Discussion

I. Respondent Javier Bonilla violated section 1129 of the
Act because he knowingly made false statements and
representations to SSA for its use in determining Denisse
Bonilla’s ongoing eligibility for Social Security disability
insurance benefits.

To satisfy the basic definition of “disability,” an individual must have a severe medically
determinable physical or mental impairment that makes her unable to perform her past
relevant work or any other substantial gainful work. 20 C.F.R. § 404.1505.

In April 2008, Respondent Javier Bonilla’s wife, Denisse, was awarded disability
insurance benefits, effective April 2006. SSA Ex. 2.

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

meone disabled, SSA must occasionally reevaluate the individual’s

impairments to determine if she is still eligible for benefits, a process referred to as a
“continuing disability review.” If medical or other evidence establishes that the recipient
is no longer disabled, her benefits will end. 20 C.F.R. §§ 404.1589, 404.1590. In this
case, SSA sent forms to the beneficiary, Denisse Bonilla, and it sent Respondent Javier
Bonilla a third party function report, SSA form 3380, with instructions that he complete
and return it to SSA. He filled out the form on August 22, 2013, and submitted it. SSA

Ex. 3. Among his representations were the following:

e He claim

e He said t

e He said t
make sur
windows

e He said t

e He said t
impaired

ed that he spent 14 hours per day with Denisse Bonilla and that they did

everything together. SSA Ex. 3 at 1.

at Denisse Bonilla could not work; she was afraid of the outside world

and had been since the bombing of the World Trade Center on “9/11/01.” SSA
Ex. 3 at 1.

at the first thing she did in the morning was to check the windows to
e they were closed. She remained inside all day and checked the
again at night. SSA Ex. 3 at 2.

at she was no longer able to be social. SSA Ex. 3 at 2.

at she lacked concentration. SSA Ex. 3 at 2. Her inability to concentrate
her ability to dress, take her medication, complete her daily chores, or

cook. SSA Ex. 3 at 2, 3. He marked that she was unable to even prepare a frozen

dinner or

sandwich for herself. SSA Ex. 3 at 3.

e He said that she did no outside work but stayed indoors and cleaned all the
time. SSA Ex. 3 at 3.*

e He said t

at she went outside to go to her doctor’s appointments. SSA Ex. 3 at 4.

e He claimed that, when going out, she rode in a car but did not walk, drive, or
use public transportation. SSA Ex. 3 at 4.

e He said t
SSA Ex.

at she could not drive because she lacked concentration and lost focus.
3 at 4.

* Although Res;
CMP on just fiv

pondent Javier Bonilla made numerous false statements, the IG bases the
e of them. See I.G. Ex. 5 at 1. [highlight in bold those statements that

the IG specifica!

ly points to as false and relies on to justify the CMP.
e He said that she could not go outside alone because of her fear of the outside
world. SSA Ex. 3 at 4.

e He claimed that she shopped only by computer. SSA Ex. 3 at 4.

e He claimed that she was not capable of using a checkbook and that he handled “all
financial needs.” SSA Ex. 3 at 4.

e He claimed that his wife “doesn’t go anywhere”; and that he took her to her
doctor’s appointments. SSA Ex. 3 at 5.

e He said that, whenever she went out, she went with him and needed him to
accompany her. SSA Ex. 3 at 5.

e He said that Denisse did not do social activities. SSA Ex. 3 at 6.

e He claimed that she could pay attention for only about three minutes and was not
good at following written instructions. SSA Ex. 3 at 6.

e He claimed that she was not good at handling stress or changes in routine and was
afraid of the outside. SSA Ex. 3 at 7.

Overwhelming evidence gives lie to these claims.

Denisse Bonilla’s school involvement. Investigators spoke to the principal and teacher of
the school that the Bonilla children attended during the 2012-2013 academic year.

In a written statement, the (then) school principal confirmed that, from August 2012
through June 2013, the Bonilla children attended her school. During that time, she
observed Ms. Bonilla. SSA Ex. 15. The principal “regularly did the car line” and
observed Respondent there. She also saw her as a “walk-in” (walking her child into the
classroom). Tr. 11. According to the principal, Denisse Bonilla also attended parent-
teacher conferences and communicated effectively in English.* She was “friendly,

> Respondent’s actions in support of his wife’s benefits were not limited to his
misrepresentations on the third party function report. An individual’s proficiency in
English can affect her eligibility for disability benefits. See 20 C.F.R. Part 404, subpart
P, Appendix 2. Respondent’s wife, Denisse (at one point) claimed she was not fluent in
English and Respondent Javier’s actions played a role in those assertions. For example,
Respondent Javier acted as Denisse’s Spanish-English interpreter for the SSA-required
psychological examination conducted to determine if Denisse qualified for ongoing
benefits. Although he did not press the issue, in his closing brief Respondent Javier
offers inconsistent defenses. He denies telling the psychologist that his wife spoke
sociable and her behavior appeared appropriate.” She dressed appropriately and
maintained good hygiene. SSA Ex. 15; SSA Ex. 11 at 2-3 (Montgomery Decl. f§ 11, 12,
13, 14, 15); Tr. 10, 12.

One of the teachers at the school told investigators that the Bonillas’ son was in her class
and that she saw Denisse Bonilla weekly from October 2012 through June 2013. Denisse
Bonilla dropped her child off at school “most mornings.” She was not accompanied by
her husband or anyone else (other than her child). The two women engaged in
conversation about once or twice a month. Those conversations were in English. (The
teacher does not speak Spanish). The teacher agreed that Ms. Bonilla appeared to be “a
socially interactive person,” and their interactions were “normal.” SSA Ex. 11 at 2
(Montgomery Decl. 4 7, 8, 9, 10); Tr. 15-19.

Respondent’s automobile. As noted above, the school principal observed Denisse
Bonilla “in the car line.” Other compelling evidence undercuts Javier Bonilla’s claim
that Denisse was unable to drive.

Throughout the time Denisse was supposedly disabled by panic attacks, she had a Florida
driver’s license, which was originally issued in January 2004 (SSA Ex. 8 at 7) and
renewed in November 2009 (SSA Ex. 8 at 2, 6). In obtaining the license, she denied that
she suffered from any mental disorder or disease and declared that she had no physical or
mental disabilities that would affect her driving. SSA Ex. 10 at 8. No evidence in her
state driving records suggests that she ever reported to the State Department of Motor
Vehicles any such disability. SSA Ex. 8. In renewing her license, she would have been
required to affirm that she had no disabilities that would affect her driving. SSA Ex. 4 at
4; see SSA Ex. 8 at 6.

On July 23, 2013, Denisse Bonilla purchased a white 2013 Kia Optima. SSA Ex. 9.
According to the Bonillas, she made the purchase because Javier Bonilla’s poor credit
rating precluded him from obtaining financing. Her credit was better. Tr. 25. The
dealership sales manager told Tom Montgomery, financial crime investigator for the
Florida Cooperative Disability Investigative Unit, that Denisse Bonilla was the sole
purchaser; she completed and signed all necessary financial and sales documents, which
were written in English. He agreed that she was a “socially interactive” person. She and
Javier Bonilla drove the car away, although the sales manager was not certain who was
driving. SSA Ex. 11 at 1-2 (Montgomery Decl. {ff 2, 3, 4, 5, 6); see SSA Ex. 9; Tr. 21-
25.

limited English but also claims that he translates for her because she speaks limited
English. But then says “We never claimed that Denisse didn’t speak English” and admits
that her SSA doctor’s appointments and this hearing were conducted in English. R. Post-
hrg. Br. at 1. SSA does not base Javier’s CMP on his role in this ruse.
Investigator Montgomery testified, credibly, that, on September 25, 2013, he observed
Denisse Bonilla driving a white 2013 Kia Optima, which was registered in her name. He
saw her drive to her residence and park the car in her driveway. She then left the car and
entered her home. SSA Ex. 11 at 3 (Montgomery Decl. § 16, 17); SSA Ex. 4 at 5
(offering a more detailed description of the investigator’s observations); SSA Ex. 16
(video surveillance of Denisse Bonilla, taken September 25, 2013); see SSA Ex. 8 at 4,
11 (indicating vehicle registration).

Travel. During this time that Respondent Javier Bonilla was claiming that his wife was
disabled because her anxiety and panic attacks confined her to her home, she, along with
Javier and their children, were vacationing at Disney Quest, Busch Gardens, and in New
York City, as well as other locations, and posting pictures from these excursions on the
Bonillas’ personal Facebook account. SSA Ex. 10. The pictures show an active and
engaged woman vacationing with her family.

Respondent Javier Bonilla’s explanations. Respondent Javier Bonilla offers minimal
defenses to the overwhelming evidence against him, continuing to claim that his wife
suffers from a disabling mental impairment.

He criticizes the evidence that Denisse purchased and drove a car, pointing out that
neither their child’s teacher nor the dealership sales manager saw her driving. But other
unrebutted evidence establishes that she was able to drive and drove: the school principal
testified that she saw Denisse Bonilla “in the car line”; Investigator Montgomery testified
that he saw her driving the car she had purchased. Consistent with his testimony, a video
shows Denisse Bonilla walking from the car to her home. SSA Ex. 16.

Moreover, Respondent Javier offers no rebuttal to the compelling evidence that he, his
wife, and children vacationed at amusement parks, in New York City, and elsewhere,
evidence that is wholly inconsistent with the notion that she was unable to leave her
house. SSA Ex. 10. Although Denisse Bonilla suggested that most of these trips
occurred prior to her disability onset date, I found her testimony not credible, given the
ages of the children in the photographs of those trips that the family posted on Facebook.
Moreover, one of the photographs shows the Bonillas standing next to the subway sign
for the Times Square/42™ Street subway station. SSA Ex. 10 at 12. That picture must
have been taken sometime in or after July 2011. In the picture’s background is a
billboard advertising the movie, Cowboys and Aliens, which was released in July 2011.
SSA Ex. 10 at 12; May 18, 2015 Post-hearing Order. Denisse Bonilla holds a shopping
bag and admitted that she had been shopping that day. Tr. 57. This is surprising for
someone who is only able to shop on-line with Respondent’s assistance.

Finally, Respondent Javier Bonilla tacitly acknowledges that SSA witnesses observed
and spoke to Denisse Bonilla and detected no signs of mental illness or other abnormal
behavior, but he points out that they are not physicians and not qualified to determine
whether she suffered from a disabling mental impairment. R. Post-hrg. Br. The issue
here is not Mrs. Bonilla’s medical diagnosis; the issue is whether Respondent Javier
Bonilla misrepresented his wife’s daily activities and abilities. The credible testimony of
SSA’s witnesses, along with other compelling evidence, establishes that he did. Denisse
Bonilla could not have stayed home all day if she regularly took her child to school. She
was not having panic attacks when she went outside if she regularly took her child to
school, engaged the teacher in normal conversation, participated normally in the purchase
of a car, and went on trips and vacations, including to amusements parks and even New
York City. Someone who is afraid of crowds would not be shopping in and around
Times Square. Further, someone who is afraid of crowds would not select frequent
vacations to amusement parks (at least 6 trips since the onset of her disability) and New
York City nor attend stadium events. Tr. 51, 53, 54; SSA Ex. 10.

Compelling evidence thus establishes that Respondent Javier Bonilla made false
statements and representations to SSA for its use in determining Denisse Bonilla’s
ongoing eligibility for Social Security disability benefits.

2. The IG proposes a reasonable penalty, $25,000,
against Respondent Javier Bonilla.

The IG may impose a CMP of not more than $5,000 for each false statement or
misrepresentation. Act §1129(a)(1); 20 C.F.R. §§ 498.103(a), 498.104.

I now apply the regulatory criteria to assess the appropriateness of the penalty. Iam
specifically authorized to affirm, deny, increase, or reduce the penalties proposed by the
IG. 20 C.F.R. § 498.220. In determining the appropriateness of the penalty, I must
consider: 1) the nature of the statements and representations and the circumstances under
which they occurred; 2) the degree of culpability of the person committing the offense; 3)
the history of prior offenses of the person committing the offense; 4) the financial
condition of the person committing the offense; and 5) such other matters as justice may
require. 20 C.F.R. § 498.106.

I note that Respondent Javier Bonilla has no history of prior offenses.

With respect to his financial condition, the respondent bears the burden of establishing
that his financial condition prevents him from paying the penalty. SSA v. Clara Sloan,
DAB CR1081 (2003), Recommended Decision to Decline Review, App. Div. Dkt. No. A-
04-03 at 2 (Feb. 9, 2004) (finding “no basis to disturb the ALJ’s . . . legal conclusions.”).
Respondent Javier Bonilla submitted a financial disclosure form for its use in determining
his ability to pay a penalty. See SSA Ex. 7. According to the form, he is employed by
the county government, earning $2,200 per month, has few savings and little equity in his
ouse. I accept that his income and assets are limited. Weighing this against the other
factors, I nevertheless affirm the amount of the CMP.

With respect to the other factors, I find that Respondent Javier Bonilla’s dissembling has
been substantial and repeated, continuing up through the time of the hearing and beyond.
He has made more than five false statements to SSA. On the third party function report
alone, he made at least twelve such statements. In addition to the five upon which this
CMP is based (some of which he has made repeatedly), he claimed that: Denisse has
been “afraid of the outside world” since the September 11 World Trade Center bombing
(SSA Ex. 3 at 1); Denisse remained inside all day (SSA Ex. 3 at 2); Denisse was unable
to be social (SSA Ex. 3 at 2); Denisse went outside only for doctors’ appointments (SSA
Ex. 3 at 3); Denisse lacked concentration sufficient for driving (SSA Ex. 3 at 4); Denisse
shopped only by computer (SSA Ex. 3 at 4); and that Denisse did not do social activities.
SSA Ex. 3 at 6.

Respondent Javier Bonilla has offered no evidence to mitigate his offense, but persists in
claiming that he made no false statements. His degree of culpability is substantial and
would justify a CMP greater than that imposed here.

Finally, I note that the integrity of the disability system depends on each claimant and
each third party accurately answering SSA’s questions regarding a beneficiary’s
functional abilities, so that SSA can determine accurately whether she continues to
qualify for benefits. Where, as here, these individuals deliberately misrepresent the
beneficiary’s functional capacity in order to maintain benefits, they undermine the
integrity of that system.

Conclusion

Respondent Javier Bonilla violated section 1129 of the Act when he knowingly
misrepresented material facts to SSA for its use in determining his wife’s eligibility for
Social Security disability insurance benefits. I consider the $25,000 CMP reasonable.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Fares F. Yasin, M.D.
(NPI: 1255427472; PTANs: MI1721, MI6074001, P37170001),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-15-2655
Decision No. CR4425
Date: November 12, 2015
DECISION

The Medicare enrollment and billing privileges of Petitioner, Fares F. Yasin, M.D., are
revoked pursuant to 42 C.F.R. § 424.535(a)(9) effective December 31, 2014.

I. Background

Wisconsin Physicians Service Insurance Corporation (WPS), the Medicare administrative
contractor for the Centers for Medicare & Medicaid Services (CMS), notified Petitioner
by letter dated December 1, 2014, that his Medicare enrollment and billing privileges
were being revoked effective December 31, 2014. WPS cited 42 C.F.R. § 424.535(a)(9)
as the basis for the revocation. WPS also notified Petitioner that he was subject to a two-
year bar to re-enrollment pursuant to 42 C.F.R. § 424.535(c). CMS Exhibit (Ex.) 5.

Petitioner requested reconsideration of the revocation. CMS Ex. 7. Ina reconsidered
determination dated April 3, 2015, CMS upheld the revocation, again citing 42 C.F.R.
§ 424.535(a)(9) as the basis for revoking Petitioner’s billing privileges. CMS Ex. 8.
On May 28, 2015, Petitioner timely filed a request for hearing before an administrative
law judge (ALJ). On June 8, 2015, the case was assigned to me for hearing and decision,
and an Acknowledgement and Prehearing Order (Prehearing Order) was issued at my
direction.

On July 8, 2015, CMS filed a combined prehearing brief and motion for summary
judgment (CMS Br.) with CMS Exs. 1 through 8. On August 6, 2015, Petitioner filed a
combined prehearing brief and opposition to CMS’s motion for summary judgment (P.
Br.) with Petitioner’s Exhibit (P. Ex.) 1. On September 3, 2015, CMS waived filing a
reply brief. The parties have not objected to my consideration of CMS Exs. | through 8
and P. Ex. 1, and they are admitted as evidence.

II. Discussion
A. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the
supplementary medical insurance benefits program for the aged and disabled known as
Medicare Part B. Administration of the Part B program is through contractors, such as
WPS. 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.
§ 1395(u)(h)(1)). Petitioner, a physician, is a 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. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505, a supplier such as Petitioner

' 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.
must be enrolled in the Medicare program and be issued a billing number to have billing
privileges and to be eligible to receive payment for services rendered to a Medicare-
eligible beneficiary.

Suppliers must submit complete, accurate, and truthful responses to all information
requested in the enrollment application. 42 C.F.R. § 424.510(d)(2). 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). Suppliers must meet
basic requirements depending on their type of service. 42 C.F.R. §§ 424.505, 424.516,
424.517. Suppliers are also subject to additional screening requirements depending upon
the type of service they provide. 42 C.F.R. § 424.518.

The Secretary has delegated the authority to revoke enrollment and billing privileges to
CMS. 42 C.F.R. § 424.535. CMS or its Medicare contractor may revoke an enrolled
supplier’s Medicare enrollment and billing privileges and supplier agreement for any of
the reasons listed in 42 C.F.R. § 424.535. Pursuant to 42 C.F.R. § 424.535(a)(1), CMS
may revoke a supplier’s enrollment and billing privileges if the supplier is determined not
to be in compliance with enrollment requirements. Relevant here, revocation is also
authorized under 42 C.F.R. § 424.535(a)(9) when a provider or supplier fails to comply
with the reporting requirements in 42 C.F.R. § 424.516(d)(1)(ii) and (iii). Those
reporting requirements, as discussed in more detail hereafter, provide that physicians,
nonphysician practitioners, and physician and nonphysician practitioner organizations
must report any adverse legal action or a change in practice location to their Medicare
contractor within 30 days. 42 C.F.R. § 424.516(d)(1)(ii), (iii).

If CMS revokes a supplier’s Medicare billing privileges, the revocation becomes
effective 30 days after CMS or one of its contractors mails the revocation notice to the
supplier, subject to some exceptions not applicable in this case. 42 C.F.R. § 424.535(g).
After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is
barred from re-enrolling in the Medicare program for one to three years. 42 C.F.R.

§ 424.535(c).

A supplier whose enrollment and billing privileges have been revoked may request
reconsideration and review as provided by 42 C.F.R. pt. 498. 42 C.F.R. § 424.545(a). A
supplier submits a written request for reconsideration to CMS or its contractor. 42 C.F.R.
§ 498.22(a). CMS or its contractor must give notice of its reconsidered determination to
the supplier, giving the reasons for its determination, specifying the conditions or
requirements the supplier failed to meet, and advising of the right to an ALJ hearing.

42 C.F.R. § 498.25. If the decision on reconsideration is unfavorable to the supplier, the

supplier has the right to request a hearing by an ALJ and further review by the
Departmental Appeals Board (the Board). Act § 1866(j)(8) (42 U.S.C. § 1395cec(j)(8));
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, 748-51 (6th Cir. 2004). The 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 the 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.

CMS has requested summary judgment. As noted above, a supplier whose enrollment
has been revoked has a right to a hearing and judicial review, and a hearing on the record
is required under the Act. Act §§ 205(b), 1866 (h)(1), (j); 42 C.F.R. §§ 498.3(b)(1), (5),
(6), (8), (15), (17), 498.5; 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 CMS’s motion for
summary judgment has merit.

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

Summary judgment is appropriate when there is no genuine dispute as to any issue of
material fact for adjudication and/or the moving party is entitled to judgment as a matter
of law. In determining whether there are genuine issues of material fact for trial, the
reviewer must view the evidence in the light most favorable to the non-moving party,
drawing all reasonable inferences in that party’s favor. The party requesting summary
judgment bears the burden of showing that there are no genuine issues of material fact for
trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant
may not defeat an adequately supported summary judgment motion by relying upon the
denials in its pleadings or briefs but must furnish evidence of a dispute concerning a
material fact, i.e., a fact that would affect the outcome of the case if proven. Mission
Hosp. Reg’! Med. Ctr., DAB No. 2459, at 4 (2012) (and cases cited therein); Experts Are
Us, Inc., DAB No. 2452, at 4 (2012) (and cases cited therein); Senior Rehab. & Skilled
Nursing Ctr., DAB No. 2300, at 3 (2010) (and cases cited therein); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in
deciding a summary judgment motion differ from that used in resolving a case after a
hearing. On summary judgment, the ALJ does not make credibility determinations,
weigh the evidence, or decide which inferences to draw from the evidence, as would be
done when finding facts after a hearing on the record. Rather, on summary judgment, the
ALJ construes the evidence in a light most favorable to the non-movant and avoids
deciding which version of the facts is more likely true. Holy Cross Vill. at Notre Dame,
Inc., DAB No. 2291, at 5 (2009). The Board also has recognized that on summary
judgment it is appropriate for the ALJ to consider whether a rational trier of fact could
find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.
Dumas Nursing & Rehab., L.P., DAB No. 2347, at 5 (2010). The Secretary has not
provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the
quantum of evidence required to satisfy the burden. However, the Board has provided
some persuasive analysis regarding the allocation of the burden of persuasion in cases
subject to 42 C.F.R. pt. 498. Batavia Nursing & Convalescent Ctr., DAB No. 1904
(2004), aff'd, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 Fed. App’x 181
(6th Cir. 2005).

There is no genuine dispute as to any material fact pertinent to revocation under 42
C.F.R. § 424.535(a)(9) or the effective date of the revocation that requires a hearing in
this case. The issues in this case raised by Petitioner related to revocation under 42
C.F.R. § 424.535(a)(9) are issues of law that must be resolved against Petitioner as a
matter of law. The undisputed evidence shows that there is a basis for revocation of
Petitioner’s Medicare enrollment and billing privileges. Accordingly, summary judgment
is appropriate.

2. There is a basis for revocation of Petitioner’s billing privileges
pursuant to 42 C.F.R. § 424.535(a)(9).

3. The effective date of revocation of Petitioner’s Medicare enrollment
and billing privileges is December 31, 2014.

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

Petitioner was enrolled in the Medicare program effective August 23, 2006, under the
name “Fares F. Yasin MD/Detroit Visiting Physicians PLLC.” CMS Ex. | at 2. On May
31, 2013, WPS sent Petitioner a request to revalidate his enrollment. The revalidation
request was mailed to Petitioner at 16985 Farmington Road, Livonia, Michigan. CMS
Ex. | at 6-8. In response to the revalidation request, Petitioner submitted a CMS-8551
enrollment application dated June 1, 2013. CMS Ex. | at 6-36. In “Section 4: Practice
Location Information” of the application, Petitioner checked the “add” box and listed
16975 Farmington Road, Livonia, Michigan as a new practice location.? CMS Ex. | at
23. On December 3, 2013, WPS notified Petitioner by letter addressed to 4634
Greenfield Road, Dearborn, Michigan that Petitioner’s revalidation was approved. CMS
Ex. | at 1-4. CMS stated in the letter that Petitioner’s primary practice location was 4634
Greenfield Road, Dearborn, Michigan with an additional practice location at 16975
Farmington Road, Livonia, Michigan. CMS Ex. | at 2.

Petitioner submitted to WPS a CMS-855I form dated February 1, 2014. CMS Ex. 2 at
17, 27. The CMS 855I, section 1A, requires the applicant to indicate the reason for the
application. Petitioner failed to select one of the options listed in 1A. CMS Ex. 2 at 4.
However, in section 2B, Petitioner placed an “x” in the block indicating that the form was
related to “Practice Location Information, Payment Address and Medical Record Storage
Information.” CMS Ex. 2 at 5. In section 4 of the CMS-855lI, Petitioner placed an “x” in
the block next to “ADD;” entered the effective date of February 1, 2014, and entered an
address for Detroit Visiting Physicians at 4700 Greenfield Road, Dearborn, Michigan.
CMS Ex. 2 at 17. The CMS-855I form has three check-boxes in Section 4 — “change,”

> Petitioner listed the practice location name as “Detroit Visiting Physicians PLLC.”
CMS Ex. | at 23.
“add,” and “delete” — and it is not disputed that Petitioner checked only the “add” box
and not the “change” or “delete” boxes. CMS Ex. 2 at 17. CMS approved Petitioner’s
change of information by letter dated April 26, 2014. CMS Ex. 2 at 1-3. CMS confirmed
the additional practice location at 4700 Greenfield Road, Suite 201, Dearborn, Michigan
effective February 1, 2014. CMS Ex. 2 at 2.

On July 29, 2014, and August 7, 2014, CMS inspectors attempted to conduct site
verification surveys at Petitioner’s 16975 Farmington Road practice location. On both
occasions, the inspectors found that the office was vacant, the front door was locked, and
the signage at the entrance of the building complex did not list Petitioner’s name. The
inspectors did not see any furniture inside the office suite and noted mail on the floor.
CMS Exs. 3, 4. The inspectors took photographs to document that Petitioner’s office was
vacant during their attempted site visits. CMS Ex. 4. Petitioner does not deny that he
was not operating at 16975 Farmington Road when the site visits were made. CMS Ex. 6
at 1; CMS Ex. 7 at 1; P. Br. at 2 -3.

By letter dated December 1, 2014, WPS notified Petitioner that his Medicare billing
privileges would be revoked effective December 31, 2014, pursuant to 42 C.F.R.

§ 424.535(a)(9), because Petitioner failed to notify CMS within 30 days that he had
changed his practice location, as required by 42 C.F.R. § 424.516. Specifically, WPS
stated that on-site reviews conducted on July 29, 2014, and August 7, 2014, discovered
that Petitioner’s Farmington Road location was vacant. CMS Ex. 5 at 1.

Petitioner submitted a Corrective Action Plan (CAP) dated December 11, 2014. CMS
Ex. 6.° In the CAP, Petitioner admits that the 16975 Farmington Road location “was
active and operating until January or February of 2014 . . . after which it was closed” and
that he did not report the change in his practice location to CMS. CMS Ex. 6. Petitioner
explains that his failure to report the change was an “oversight” and an “error on [his]
part.” CMS Ex. 6. Petitioner also admitted in his request for reconsideration that the
16975 Farmington Road location was closed. CMS Ex. 7. In his brief, Petitioner admits,
more specifically, that the 16975 Farmington Road location was closed as of February 1,
2014. P. Br. at 3.

b. Analysis
Petitioner agreed as a condition for enrolling in Medicare to notify WPS of any “change
in practice location” within 30 days. 42 C.F.R. §§ 424.500, 424.505, 424.510,

424.516(d)(1)(iii). Section 4 titled “Practice Location Information” of the CMS-8551I
enrollment application provides boxes for providers and suppliers to check to report a

> WPS rejected Petitioner’s CAP on December 19, 2014. P. Ex. 1.
change, addition, or deletion of a practice location and a space to enter the effective date
for the change. CMS Ex. | at 23; CMS Ex. 2 at 17. There is no dispute that on or about
June 1, 2013, and on or about February 1, 2014, Petitioner submitted CMS-8551
applications to notify WPS that Petitioner was adding new practice locations — the 16975
Farmington Road location in June 2013 and the 4700 Greenfield Road location in
February 2014. It is not disputed that when Petitioner added the Greenfield Road
location Petitioner checked only the “add” box on the CMS-855] and left the “change”
and “delete” boxes unchecked, with no mention that Petitioner’s 16975 Farmington Road
location should be deleted. CMS Ex. 2 at 17. Further, it is not disputed that Petitioner
closed his 16975 Farmington Road practice location as of February 1, 2014, and that
Petitioner never notified WPS within 30 days of the closure by completing a CMS-8551I
to alert WPS and CMS that the Farmington Road address should be deleted. Because
Petitioner failed to comply with the reporting requirements of 42 C.F.R.

§ 424.516(d)(1)(iii), there is a basis for revocation of Petitioner’s Medicare enrollment
and billing privileges under 42 C.F.R. § 424.535(a)(9).

Despite conceding that he failed to notify WPS when he closed his 16975 Farmington
Road practice location, Petitioner argues that he did notify CMS that the Farmington
Road location was closed because he omitted that location from the CMS-855I he signed
February 1, 2014. RFH at 2, 4; P. Br. at 2; CMS Ex. 2. Petitioner also argues that,
though he closed the 16975 Farmington Road practice location on February 1, 2014, he
continued to maintain his primary practice location and merely closed the second location
and there was no “change in practice location” that required reporting. P. Br. at 4.

Even if Petitioner’s 16975 Farmington Road location was only a secondary and not
Petitioner’s primary practice location, 42 C.F.R. § 424.516(d)(iii) makes no distinctions
between primary and secondary practice locations for purposes of reporting. The
regulation explicitly requires that “[a] change in practice location” be reported in 30 days.
42 C.F.R. § 424.516(d)(1)(iii). Thus, it is plain from the regulation that when a supplier
closes any of his practice locations on file with CMS, that event constitutes a “change in
practice location” that must be reported to CMS. When Petitioner ceased operations at

is 16975 Farmington Road location, Petitioner was obligated to timely report the change
to CMS, regardless of whether the site was a primary or secondary site.

Petitioner’s suggestion that CMS should have inferred that Petitioner closed the 16975
Farmington Road location based on the fact that Petitioner did not list that location in the
CMS-855I dated February 1, 2014, is also without merit. The regulations impose an
affirmative duty upon enrolled providers or suppliers to report a change in practice
location and do not permit or require CMS or its contractors to draw inferences based on
incomplete information. Petitioner has the obligation under the regulations to
affirmatively inform CMS of any change in his practice location by properly completing
the CMS-855I. When Petitioner completed the CMS-855I dated February 1, 2014, he
checked only the “add” box in Section 4 and did not check the “change” or “delete”

boxes. The only address Petitioner provided in Section 4 was the new practice location at
4700 Greenfield Road that he intended to add. CMS Ex. 2 at 17. When Petitioner ceased
operations at his 16975 Farmington Road location, he was required to inform CMS of the
closure by checking the “delete” box on the CMS-855], furnishing the effective date of
the closure, and providing the other information requested (e.g., address, telephone
number, Medicare Identification Number). Petitioner failed to do so and concedes that he
did not notify CMS within 30 days when he closed his Farmington Road practice
location.

Petitioner further argues that CMS has incorrectly interpreted 42 C.F.R.

§ 424.535(a)(9). Petitioner argues that under 42 C.F.R. § 424.535(a)(9), CMS has to
show that Petitioner violated both subsections (ii) and (iii) of 42 C.F.R. § 424.516(d)(1)
before CMS can revoke Petitioner’s Medicare enrollment and billing privileges.
Petitioner argues that because he only violated one of the reporting requirements, he
cannot be subject to a revocation pursuant to 42 C.F.R. § 424.535(a)(9).

Petitioner’s argument is without merit. CMS may revoke Medicare enrollment if “[t]he
provider or supplier did not comply with the reporting requirements specified in

§ 424.516(d)(1)(ii) and (iii).” 42 C.F.R. § 424.535(a)(9). Physicians, nonphysician
practitioners, and physician and nonphysician practitioner organizations are required to
report the following events within 30 days:

(i) A change of ownership;
(ii) Any adverse legal action; or
(iii) A change in practice location.

42 C.F.R. § 424.516(d)(1)(i)-(iii). Included in the final rulemaking for 42 C.F.R.
§ 424.516(d) is the following response from the drafters of the regulation:

We believe that changes of ownership, adverse legal actions,
and changes in practice locations can and should be reported
within 30 days of the reportable event. By reporting these
types of reportable events within 30 days, the Medicare
program can take the necessary steps to ensure that we are
paying physicians and NPPs [nonphysician practitioners]

4 In the reconsidered determination dated April 3, 2015, WPS noted that as of April 2,
2015, Petitioner had not filed a change of location to remove the Farmington Road
location from his file. CMS Ex. 8 at 1.
10

correctly and ensure that only eligible physicians and NPPs
are enrolled in the Medicare program.

After reviewing public comments, we are finalizing the
provision at proposed § 424.516(d) which would require
physicians, NPPs or physician and NPP organizations to
notify its Medicare contractor of a change of ownership,
change in practice location or any final adverse

action within 30 days of the reportable event. In addition, we
believe that physician and NPP organizations’ and individual
practitioners’ failure to comply with the reporting
requirements within the time frame described above may
result in the revocation of Medicare billing privileges and the
imposition of a Medicare overpayment from the date of the
reportable change... .

oe Rk

We are finalizing the provision at proposed § 424.535(a)(9)
which would specify that failure to comply with the reporting
requirements specified in § 424.516(d) would be a basis for
revocation.

73 Fed. Reg. 69,726, 69,780 (Nov. 19, 2008) (emphasis added). The drafters make clear
that failure to report within 30 days a change of ownership, an adverse legal action, or a
change in practice location is a basis for CMS to revoke a physician’s billing

privileges. 42 C.F.R. § 424.516(d)(1). Nothing in the regulatory history for 42 C.F.R.

§ 424.516(d)(1) supports Petitioner’s position that a supplier must fail to report both an
adverse legal action and a change in practice location before CMS has a basis to revoke
Medicare enrollment and billing privileges. Petitioner’s failure to notify CMS that its
16975 Farmington Road location should be deleted from its file within 30 days of the
closing of that location was a sufficient basis for CMS to revoke his billing privileges
pursuant to 42 C.F.R. § 424.535(a)(9).

Petitioner claims that WPS acted unreasonably when it refused to accept his CAP
because Petitioner acted in good faith to remedy the situation. RFH; P. Br. at 6.
Petitioner argues that CMS arbitrarily exercised its discretion to revoke his billing
privileges.

The rejection or denial of a CAP is not an appealable initial determination under 42
C.F.R. pt. 498. 42 C.F.R. §§ 405.809, 498.3(d)(5); Pepper Hill Nursing & Rehab. Ctr.
LLC, DAB No. 2395 at 9-10 (2011); DMS Imaging, Inc., DAB No. 2313 at 5, 7-10
(2010).
11

I also have no authority to review the exercise of discretion by CMS or its contractor to
revoke where there is a basis for revocation. Abdul Razzaque Ahmed, M.D., DAB No.
2261 at 19 (2009), aff'd, Ahmed v. Sebelius, 710 F.Supp.2d 167 (D. Mass. 2010). The
scope of my authority is limited to determining whether there is a legal basis for
revocation of Petitioner’s Medicare enrollment and billing privileges. Jd. I have
concluded that CMS established that Petitioner violated the reporting requirements of 42
C.F.R. § 424.516(d)(1). Thus, a regulatory basis for revocation exists.

To the extent that Petitioner’s arguments may be construed as a request for equitable
relief, I have no authority to grant equitable relief. US Ultrasound, DAB No. 2302 at 8
(2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by
reimbursing or enrolling a supplier who does not meet statutory or regulatory
requirements.”). Furthermore, I am bound to follow the Act and regulations, and I have
no authority to declare statutes or regulations invalid or ultra vires. 1866/CPayday.com,
L.L.C., DAB No. 2289 at 14 (2009) (noting that “[a]n ALJ is bound by applicable laws
and regulations and may not invalidate either a law or regulation on any ground.”).

III. Conclusion

For the foregoing reasons, Petitioner’s Medicare enrollment and billing privileges are
revoked pursuant to 42 C.F.R.§ 424.535(a)(9) due to noncompliance with 42 C.F.R.
§ 424.516(d)(1)(iii), effective December 31, 2014.

/s/
Keith W. Sickendick
Administrative Law Judge