Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Junjee L. Arroyo,
(O.I. File No. 5-09-4-1027-9),

Petitioner,
v.
The Inspector General.
Docket No. C-15-732
Decision No. CR4072

Date: July 27, 2015

DECISION

The Inspector General (IG) of the United States Department of Health and Human
Services notified Junjee L. Arroyo (Petitioner) that he was being excluded from
participation in Medicare, Medicaid, and all other federal health care programs for a
minimum period of five years based on his conviction for a crime under the Anti-
Kickback Statute. Petitioner requested a hearing to dispute the exclusion. For the
reasons stated below, I conclude that the IG has a basis for excluding Petitioner from
program participation and that the five-year exclusion is mandated by law.

I. Background

By letter dated November 28, 2014, the IG notified Petitioner that he was being excluded
from participation in Medicare, Medicaid, and all federal health care programs for the
minimum statutory period of five years pursuant to 42 U.S.C. § 1320a-7(a)(1) because of
his conviction in the United States District Court, Northern District of Illinois, of a
criminal offense related to the delivery of an item or service under Medicare or a state
health care program, including the performance of management or administrative
services relating to the delivery of items or services, under any such program. IG Exhibit

(Ex.) 1. On December 18, 2014, Petitioner, through counsel, filed a request for a hearing
(RFH) to dispute the exclusion. The hearing request included, marked as Exhibit A,
relevant portions of a sentencing transcript from Petitioner’s criminal case.

On January 21, 2015, I convened a consolidated pre-hearing telephone conference in this
case and in two other cases, Marilyn Maravilla a/k/a Marylin Maravilla v. the Inspector
General, C-15-717, and Goodwill Home Healthcare, Inc., v. the Inspector General, C-15-
718. The substance of the prehearing conference is summarized in my Order and
Schedule for Filing Briefs and Documentary Evidence (Order) dated January 23, 2015.
See 42 C.F.R. § 1005.6. In compliance with the Order, the IG submitted a brief (IG Br.)
together with seven exhibits (IG Exs. 1-7). I granted Petitioner’s request for an extension
to file his response brief. On May 7, 2015, at my direction, the Civil Remedies Division
staff attorney assisting me on this case emailed Petitioner to advise him that his brief was
past due and inquire whether Petitioner intended to file a brief. On May 8, 2015,
Petitioner responded via email that he had decided not to file anything further in his case.

On May 13, 2015, the IG filed a motion to dismiss Petitioner’s request for hearing on the
grounds of abandonment. I deny the IG’s motion. Petitioner’s email of May 8, 2015,
clearly showed that he was not withdrawing or abandoning his request for hearing.
Further, Petitioner filed a detailed hearing request, which sufficiently provides
Petitioner’s legal position in this case even without filing a brief. The IG also had
already submitted the complete sentencing transcript for Petitioner; therefore, Petitioner
did not need to resubmit Exhibit A from his hearing request. Compare IG Ex. 6 with
RFH, Ex. A; see also Order § 2. Finally, Petitioner’s decision not to file a brief and to
rest his case on his detailed request for hearing does not prejudice the IG in any way. I
will not deprive Petitioner of his statutory right to review of the IG’s exclusion by an
independent adjudicator simply because Petitioner was tardy in informing me that he did
not intend to file any further argument. See 42 U.S.C. § 1320a-7(f)(1).

II. Decision on the Record

Petitioner did not object to any of the IG’s proposed exhibits. See Order § 2. Therefore, I
admit IG Exs. 1-7 into the record. The IG indicated that he does not think that an in-
person hearing is necessary and did not have any witness testimony to offer. IG Br. at 6.
Petitioner neither indicated that an in-person hearing is necessary nor did he indicate that
he had any witness testimony to offer. See Order § 3. Therefore, I decide this case on the
written record.

III. Issue
Whether the IG has a basis for excluding Petitioner for five years from participating in

Medicare, Medicaid, and all other federal health care programs under 42 U.S.C. § 1320a-
7(a)(1). See 42 C.F.R. § 1001.2007(a)(1)-(2).
IV. Jurisdiction

I have jurisdiction to adjudicate this case. 42 U.S.C. § 1320a-7(f)(1); 42 C.F.R.
§§ 1001.2007, 1005.2

V. Findings of Fact, Conclusions of Law, and Analysis!

The IG must exclude an individual from participation in Medicare, Medicaid, and all
other federally-funded health care programs if that individual has been convicted of a
criminal offense related to the delivery of an item or service under Medicare or a state
health care program. 42 U.S.C. § 1320a-7(a)(1); 42 C.F.R. § 1001.101(a).

A, Petitioner pled guilty in the United States District Court for the Northern
District of [Mlinois (District Court) to one count of Conspiracy to Defraud the
United States, and the District Court issued a Judgment in a Criminal Case
adjudicating Petitioner guilty of that crime.

Petitioner is a Registered Nurse licensed to practice in Illinois. IG Ex. 2 at 3; IG Ex. 3;
IG Ex. 4 at 3. Petitioner was a co-owner, Director of Nursing, and the former
Administrator of Goodwill Home Healthcare, Inc. (Goodwill), a provider of home health
care services located in Lincolnwood, Illinois. IG Ex. 2 at 2-3; IG Ex. 4 at 3. Petitioner
provided home health care services to patients, including Medicare beneficiaries, through
Goodwill. IG Ex. 4 at 3. On August 9, 2012, a federal grand jury indicted Petitioner and
five other individuals on 29 counts, alleging violations of 18 U.S.C. § 371 and 42 U.S.C.
§§ 1320a-7b(b)(1)(A) and 1320a-7b(b)(2)(A). IG Ex. 2. Petitioner was charged in 17 of
the 29 counts. According to the Indictment, from on or about August 2008 through on or
about July 2010, Petitioner and the other individuals conspired to offer and pay illegal
kickbacks to nurses, marketers, and other home health care workers in exchange for the
referral of patients to Goodwill for home health services that were billed to Medicare. IG
Ex. 2 at 4-7. The Indictment alleged that Goodwill billed Medicare for over $5,000,000
of home health care services purportedly provided to patients that Goodwill obtained as a
result of paying approximately $400,000 in illegal kickbacks. IG Ex. 2 at 5-6. Count
One of the Indictment alleged, in relevant part, that Petitioner, Goodwill, and the other
individuals conspired:

to knowingly and willfully offer and pay remuneration, and
cause Goodwill to offer and pay remuneration, including
kickbacks and bribes, directly and indirectly, overtly and
covertly, to nurses, marketers, and others known and
unknown to the Grand Jury to induce such persons to refer
patients to Goodwill for the furnishing and arranging for the

' My findings of fact and conclusions of law are set forth in italics and bold font.
furnishing of services for which payment may be made in
whole and in part under Medicare, in violation of Title 42,
United States Code, Section 1320a-7b(b)(2)(A); and

to knowingly and willfully solicit and receive
remuneration, including kickbacks and bribes, directly and
indirectly, overtly and covertly, from Goodwill in return for
referring patients to Goodwill for the furnishing and
arranging for the furnishing of services for which payment
may be made in whole and in part under Medicare, in
violation of Title 42, United States Code, Section 1320a-
7b(b)(1)(A).

IG Ex. 2 at 4-5.

On November 12, 2013, Petitioner entered into a plea agreement in which he agreed to
plead guilty to Count One of the Indictment and admit he violated 42 U.S.C. §§ 1320a-
7b(b)(1)(A) and 1320a-7b(b)(2)(A) and 18 U.S.C. § 371. IG Ex. 4.

On June 17, 2014, the District Court entered a Judgment in a Criminal Case in which the
court acknowledged Petitioner’s guilty plea to Count One of the Indictment and indicated
Petitioner was “adjudicated guilty” of violating 18 U.S.C. § 371(“Conspiracy to Defraud
the United States”). IG Ex. 5 at 1. The District Court sentenced Petitioner to four years
of probation, with the first six months as home detention, and an assessment of $100. IG
Ex. 5 at 2-5; IG Ex. 6 at 115-16. The District Court also entered a forfeiture order of
$44,197.00 against Petitioner. IG Ex. 5 at 5; IG Ex. 7.

B. Petitioner was convicted of a criminal offense for the purposes of 42 U.S.C.
§ 1320a-7(a)(1).

Under 42 U.S.C. § 1320a-7(a)(1), Petitioner must be “convicted of a criminal offense”
before he can be excluded. An individual is considered “convicted” when a judgment of
conviction has been entered by a federal, state, or local court, or a plea of guilty or no
contest has been accepted in a federal, state, or local court. 42 U.S.C. § 1320a-7(i)(1),
(3). In the present matter, Petitioner entered a plea of guilty to a charge of violating

18 U.S.C. § 371, and the District Court “adjudicated [Petitioner] guilty” of that crime.

IG Ex. 4; IG Ex. 5 at 1. I conclude, based on these facts and Petitioner’s admission in his
request for hearing (RFH at 1) that he was convicted of a criminal offense.
C. Petitioner’s conviction of conspiracy to defraud the United States through
payment of kickbacks for the referral of Medicare beneficiaries to Goodwill
is a criminal offense related to the delivery of an item or service under
Medicare.

An individual or entity must be excluded from participation in any federal health care
program if the individual or entity was convicted of a criminal offense related to the
delivery of an item or service under Medicare. 42 U.S.C. § 1320a-7(a)(1); 42 C.F.R

§ 1001.101(a). The requirement that the conviction be “related to” the delivery of health
care items or services simply means that there must be a nexus or common sense
connection. See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141,
143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012)
(describing the phrase “related to” in another part of section 1320a-7 as “deliberately
expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not
subject to “crabbed and formalistic interpretation” (internal quotes omitted)).

Petitioner does not explicitly dispute that his conviction was related to the delivery of an
item or service under Medicare or a state health care program. Petitioner argues that: his
criminal acts involved no loss to the Medicare or Medicaid programs; Goodwill’s patients
did not suffer any harm or receive unnecessary services; and there was no fraudulent
billing. RFH at 2-3.

I conclude that an obvious nexus exists between Petitioner’s conviction and the delivery
of an item or service under Medicare. Petitioner was convicted of conspiring to offer and
pay kickbacks, in violation of 18 U.S.C. § 371. Petitioner and others engaged in a
criminal conspiracy to induce the referrals of Medicare beneficiaries to his home health
care company, Goodwill, through payment of illegal kickbacks, and then billed Medicare
for services provided to those Medicare beneficiaries. It is instructive to examine the
specific provisions of the Anti-Kickback Statute referred to in Count One to which
Petitioner pled guilty to conspiring to violate, which state:

Whoever knowingly and willfully solicits or receives any
remuneration (including any kickback, bribe, or rebate)
directly or indirectly, overtly or covertly, in cash or in kind—
in return for referring an individual to a person for the
furnishing or arranging for the furnishing of any item or
service for which payment may be made in whole or in part
under a Federal health care program . . . shall be guilty of a
felony...

Whoever knowingly and willfully offers or pays any
remuneration (including any kickback, bribe, or rebate)
directly or indirectly, overtly or covertly, in cash or in kind to
any person to induce such person—to refer an individual to a
person for the furnishing or arranging for the furnishing of
any item or service for which payment may be made in whole
or in part under a Federal health care program . . . shall be
guilty ofa felony....

42 U.S.C. §§ 1320a-7b(b)(1)(A) and 1320a-7b(b)(2)(A). Therefore, based on the
statutory language, it is clear that Petitioner’s participation in the criminal conspiracy has
a nexus to the delivery of an item or service under a federal health care program.
Moreover, Petitioner admitted the following factual basis in his plea agreement:

Beginning in or about August 2008, and continuing through
in or about July 2010, at Lincolnwood, in the Northern
District of Illinois, Eastern Division, and elsewhere,
[Petitioner] conspired with co-defendants . . . to knowingly
and willfully offer and pay remuneration, and cause Goodwill
to offer and pay kickbacks, directly and indirectly, overtly
and covertly, to outside marketers to induce such persons to
refer patients to Goodwill for the furnishing and arranging for
the furnishing of services for which payment may be made in
whole and in part under Medicare, in violation of [42 U.S.C.
§ 1320-7b(b)(2)(A)].

As [Petitioner] knew, Medicare provided free and below-cost
health care benefits, including medically necessary in-home
health care services for persons who were deemed
homebound due to illness or injury that restricted their ability
to leave their place of residence. In addition, as [Petitioner]
knew, Goodwill . . . was a licensed provider of home health
care services that submitted reimbursement claims to
Medicare for services provided to its clients.

It was part of the conspiracy that, beginning in or about
August 2008 and continuing through in or about July 2010,
[Petitioner] agreed with [a co-defendant] and others to make
payments to outside marketers . . . in exchange for the referral
of patients to Goodwill for home health services for which
Goodwill sought reimbursement from Medicare, knowing that
it was illegal to pay such kickbacks.
In furtherance of the conspiracy, . . . [Petitioner], along with
[co-defendants], knowingly and willfully offered and paid
approximately $3,575 to [another individual] as a kickback,
in exchange for [the individual’s] referral of seven patients to
Goodwill for home health services for which Goodwill sought
reimbursement from Medicare. [Petitioner] paid [another
individual] $550 each for six of these patients and $275 for
the seventh, knowing that it was illegal to do so.

IG Ex. 4 at 2-4.

Petitioner admitted further that “between approximately September 2006 and July 2010,
[Petitioner], along with [co-defendants], paid or caused to be paid a total of
approximately $109,685 to [other individuals and an entity] in exchange for referral of
patients to Goodwill for home health services for which Goodwill sought reimbursement
from Medicare, knowing it was illegal to make those payments.” Petitioner also admitted
that during the same time frame, he and other co-defendants “paid a total of $298,163 to
other individuals that were based on patient starts of care or recertification of patients for
which Goodwill sought reimbursement from Medicare.” Petitioner admitted that
“Goodwill billed Medicare for services provided to all of these patients and that Medicare
paid Goodwill approximately $2,291,000 for these services.” IG Ex. 4 at 5-6.

The admissions Petitioner made as part of his plea agreement thus conclusively
demonstrate the required nexus between his criminal conduct and the delivery of items or
services under Medicare. I note, moreover, that decisions of the Departmental Appeals
Board have held that a conviction for violating the Anti-Kickback Statute is a program-
related conviction. Dinesh Patel, M.D., DAB No. 2551 at 6 (2013) (citing Boris
Lipovsky, M.D., DAB No. 1363 (1992) and Niranjana B. Parikh, M.D., DAB No. 1334
(1992)).

In his defense, Petitioner makes several arguments, with the primary argument being that
the IG has not properly applied the exclusion statute in this matter. In excluding
Petitioner, the IG proceeded under the mandatory exclusion authorities of 42 U.S.C.

§ 1320a-7(a)(1) based on Petitioner’s conviction; however, Petitioner asserts that his
criminal conduct falls instead under the permissive exclusion provision of 42 U.S.C.

§ 1320a-7(b)(7), which permits exclusion when the Secretary of Health and Human
Services determines that an individual violated 42 U.S.C. § 1320a-7b (the Anti-Kickback
Statute). Petitioner notes that under 42 U.S.C. § 1320a-7(b)(7), the IG has the discretion
not to impose any exclusion at all, and argues that, based on the facts of his case, no
exclusion is warranted. RFH at 1-3.
Petitioner’s argument is fundamentally flawed because the IG’s exclusion under

42 U.S.C. § 1320a-7(a)(1) is derivative of Petitioner’s conviction, whereas a permissive
exclusion under 42 U.S.C. § 1320a-7(b)(7) is an original action in which the IG would
need to prove that Petitioner violated 42 U.S.C. § 1320a-7b by a preponderance of the
evidence. Because Petitioner was already convicted of conspiracy to defraud the United
States through payment of kickbacks for the referral of Medicare beneficiaries to
Goodwill, the IG no longer needed to prove such a violation to exclude Petitioner.

A federal court addressed this issue in detail.

Plaintiff first contends the ALJ’s imposition of a period of
exclusion under the mandatory exclusion provision of
42 U.S.C. § 1320a—7(a)(1) was an erroneous application of
law, and the ALJ should have applied the permissive
exclusion provisions of 42 U.S.C. § 1320a—7(b)(7).

Plaintiff was convicted of conspiracy to commit kickback
violations, in violation of 18 U.S.C. § 371 and offering and
paying bribes in violation of 42 U.S.C. § 1320a—7b(b), one of
the statutes expressly referenced in the permissive exclusion
provision of 42 U.S.C. § 1320a—7(b)(7).

Pursuant to the plain language of 42 U.S.C. § 1320a—7(a)(1),
the mandatory exclusion provision applies to individuals
convicted of program-related crimes, that is crimes related to
the delivery of an item or service. On the other hand,
42 U.S.C. § 1320a-7(b)(7) provides that the permissive
exclusion provision Plaintiff references applies to individuals
that the Secretary determines has committed an act described
in certain statutes, including the Anti—Kickback Statute.
Obviously, if a jury has convicted an individual of
committing a program-related crime, the Secretary need not
make a determination that the individual has engaged in the
underlying conduct; a jury has found beyond a reasonable
doubt that the person has committed the conduct. Mandatory
exclusion thus applies to those convicted of program-related
crimes, while permissive exclusion applies to those the
Secretary has determined (in an administrative proceeding)
have committed certain acts described in specific statutes.
If legislative intent was not apparent from the plain language
of the statute, the ALJ could have resorted to legislative
istory. But the legislative history does not support the
interpretation urged by Plaintiff. The legislative history
explains that § 1320a—7(b)(7) is a very different exclusion
authority than the exclusion authority of § 1320a—7(a)(1) for
program-related convictions. Exclusion authority under
§ 1320a—7(b)(7) rests on a determination by the Secretary that
the individual has committed an act described in §§ 1320a—
7a, 1320a-7b, or 1320a-8. A permissive exclusion
proceeding under § 1320a—7(b)(7) is initiated by Defendant’s
Office of Inspector General, and the respondent has the right
to a pre-exclusion hearing in which the Office of Inspector
General must introduce evidence to establish, by a
preponderance of the evidence, that a violation of any of the
enumerated sections has occurred. The legislative history of
section 1320a—7(b)(7) indicates it was enacted as an
alternative to criminal prosecution or where a program-related
conviction does not exist.

Anderson v. Thompson, 311 F. Supp. 2d 1121, 1124-1127 (D. Kan. 2004) (emphases in
original). Based on this analysis, I reject Petitioner’s argument.

Although Petitioner does not dispute that he was convicted of conspiring to defraud the
United States through the payment of illegal kickbacks in exchange for referrals to
Goodwill, he nevertheless stresses that his actions did not harm any patients or negatively
impact the Medicare or Medicaid programs. Moreover, Petitioner asserts that no fraud
was involved. RFH at 1-3.

Petitioner’s statements appear to be more an attempt to explain his criminal conduct
rather than an attack on his conviction. However, even if Petitioner was suggesting that
the illegality of his actions should be minimized, I would consider such an argument to
constitute an impermissible collateral attack on his conviction. Under the regulations,
Petitioner is explicitly prohibited from re-litigating his criminal offense before me.

42 C.F.R. § 1001.2007(d); see also Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994);
Anderson, 311 F. Supp. 2d at 1128.

Moreover, the fact that Petitioner did not commit any fraud through his kickback activity
is irrelevant to my analysis. There is nothing in the statutory language of 42 U.S.C.

§ 1320a-7(a)(1) that requires that an individual or entity be convicted of a criminal
offense involving fraud. All that is required for a criminal offense to be program-related
is for there to be a nexus between the offense of which one is convicted and the delivery
10

of an item or service under Medicare or a state health care program. I have concluded
that a nexus exists in this case between Petitioner’s criminal conduct and the Medicare
program.

While the sentencing transcript reflects that the District Court judge did not consider
Petitioner’s crime to be of the most egregious character, the District Court judge
nevertheless recognized that Petitioner’s criminal acts could potentially have had an
adverse impact on the healthcare system. The District Court judge stated, “The crimes
that [Petitioner and the other defendants] have pled guilty to in this case arise from a
statute which is, in essence, a prophylactic statute. Payment for referrals on a patient-by-
patient basis creates bad incentives and increases the risk of fraud.” IG Ex. 5 at 98.
Although the judge acknowledged that “[t]here are no fraudulent billings that are
attributable to [Petitioner and the other defendants]’” (IG Ex. 5 at 98), he noted that “what
makes this crime more serious than a technical violation of the rules is the requirement of
willfulness. [Petitioner and the other defendants] have admitted that they knew that at
least some of their conduct violated the Anti-Kickback law, but they did it anyway.” IG
Ex. 5 at 101. I note that, as part of his sentence, Petitioner was liable to the United States
for a substantial forfeiture judgment — $44,197.00 — related to the proceeds of his illegal
behavior. IG Ex. 7. Regardless of Petitioner’s attempt to re-characterize his offense, his
criminal acts show that he is a highly untrustworthy individual who poses a threat to
federal health care programs.

D. Petitioner must be excluded for the statutory minimum of five years under
42 U.S.C. § 1320a-7(c)(3)(B).

Because I have concluded that a basis exists to exclude Petitioner pursuant to 42 U.S.C.
§ 1320a-7(a)(1), Petitioner must be excluded for a minimum period of five years.
42 US.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).

Petitioner states that he provided quality care to his patients and that to exclude him
would only harm his patients, who would be forced to look for a new health care provider
to meet their needs. RFH. I have no authority to reverse or reduce the five-year
exclusion imposed by the IG based upon such equitable considerations. See Donna
Rogers, DAB No. 2381 at 6 (2011). I have found there is a basis for Petitioner’s
exclusion pursuant to 42 U.S.C. § 1320a-7(a)(1). The five-year period of exclusion is the
minimum period authorized by Congress, and I have no authority to reduce the period of
exclusion.
11

VI. Conclusion

For the foregoing reasons, I affirm the IG’s determination to exclude Petitioner from
participating in Medicare, Medicaid, and all other federal health care programs for the
statutory five-year minimum period pursuant to 42 U.S.C. § 1320a-7(a)(1), (c)(3)(B).

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Joseph L. Barchue,
(OI File No. H-14-42212-9),

Petitioner,
v.
The Inspector General.
Docket No. C-15-884
Decision No. CR4066
Date: July 24, 2015
DECISION

Petitioner, Joseph L. Barchue, appeals the determination of the Inspector General for the
U.S. Department of Health and Human Services (1.G.) to exclude him from participating
in Medicare, Medicaid, and all federal health care programs pursuant to section
1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)) for five years.
For the reasons discussed below, I find the I.G. was authorized to exclude Petitioner for
the five-year minimum mandatory exclusionary period.

I. Background

In an October 31, 2014 letter, the I.G. notified Petitioner that he was excluding Petitioner
from participating in Medicare, Medicaid, and all federal health care programs. The I.G.
excluded Petitioner pursuant to section 1128(a)(1) of the Act for the minimum mandatory
period of five years. The LG. advised Petitioner that the exclusion was based on
Petitioner’s conviction in the District Court of Oklahoma County, State of Oklahoma, of
a criminal offense related to the delivery of an item or service under Medicare or a state
health care program.
Petitioner timely requested a hearing before an administrative law judge, and the case
was assigned to me. I convened a prehearing conference with the parties, which I
summarized in my February 5, 2015 Order and Schedule for Filing Briefs and
Documentary Evidence. Pursuant to that order, I asked the parties to answer the
questions on short-form briefs I provided and to include any additional arguments and
supporting documents they wished to present. The I.G. filed his short-form brief (1.G.
Br.) together with three exhibits (I.G. Exs. 1-3). Petitioner filed a short-form brief (P.
Br.) without exhibits. The I.G. filed a reply. Neither party requested an in-person
hearing or objected to the opposing party’s exhibits. P. Br. at 2; 1.G. Br. at 5. I admit
I.G. Exs. 1-3 into the record, and I decide the case based on the written record.

II. Discussion

A. Issue

The only issue before me is whether the I.G. had a legitimate basis to exclude Petitioner
from participating in Medicare, Medicaid, and all federal health care programs pursuant
to section 1128(a)(1) of the Act. If I find that the I.G. was authorized to exclude
Petitioner, then I must uphold the I.G.’s exclusion because it is for the minimum
mandatory period of five years. 42 C.F.R. § 1001.2007(a)(1)-(2).

B. Findings of Fact and Conclusions of Law

I. The 1G. had a legitimate basis to exclude Petitioner under section
1128(a)(1) of the Act.

The I.G. must exclude an individual when: 1) the individual has been convicted of a
criminal offense, whether a felony or a misdemeanor; and 2) the criminal offense is
related to the delivery of an item or service under Medicare or a state health care
program. Act § 1128(a)(1); see also 42 C.F.R. § 1001.101(a).

a. Petitioner was convicted of a criminal offense.

For purposes of exclusion, a conviction occurs when: 1) a judgment of conviction has
been entered against an individual by a federal, state, or local court, regardless of whether
there is an appeal pending or whether the judgment of conviction or other record relating
to the criminal conduct has been expunged; 2) there has been a finding of guilt against an
individual by a federal, state or local court; 3) a plea of guilty or nolo contendere by an
individual has been accepted by a federal, state, or local court; or 4) an individual has
entered into participation in a first offender, deferred adjudication, or other arrangement
or program where judgment of conviction has been withheld. Act § 1128(i).
Oklahoma’s Attorney General filed a two-count criminal information against Petitioner
on January 17, 2013, in the District Court of Oklahoma County. The Attorney General
charged Petitioner with one count of felony Medicaid fraud and one count of
misdemeanor Medicaid fraud under state law. The Attorney General alleged that
Petitioner submitted claims to Oklahoma’s Medicaid program for payment for counseling
services that he did not provide to two individuals. The aggregate amount of the claims
for one of the individuals exceeded $2500, making it a felony under state law, while the
aggregate amount of claims for the other individual did not exceed $2500, making it a
misdemeanor under state law. IG. Ex. 3 at 1-2. The state subsequently amended the
felony charge to a misdemeanor charge. LG. Ex. 2 at 2, 4.

Petitioner entered a plea of guilty to two misdemeanor counts of Medicaid fraud under
state law on November 25, 2013. LG. Ex. 2 at 4. Under his plea agreement, Petitioner
stated that he “submitted billing to [the] OK Health Care Authority that was not correct”
and “submitted bills to OKHA for services not rendered.” I.G. Ex. 2 at 6. The court
accepted Petitioner’s guilty plea, deferred his sentencing for one year, ordered him to
submit to unsupervised probation, and ordered him to pay $7,013.42 in restitution. I.G.
Ex. 2 at 9, 11, 15, 16. Based on his guilty plea, Petitioner was convicted within the
meaning of the Act. Act, § 1128(i)(3), (4).

Petitioner argues that he has not been convicted within the meaning of the Act. He
asserts that “[m]isdemeanor [d]eferred [u]nsupervised [p]robation for one year is not a
conviction” and that he “was not convicted of a crime.” P. Br. at 2. Petitioner, however,
is incorrect. Though Petitioner’s sentencing appears to have been deferred, there is no
evidence that Petitioner’s guilty plea was withdrawn at the conclusion of the period of
deferral, and Petitioner does not dispute that he pled guilty or that the court accepted his
plea. Petitioner’s guilty plea and the court’s acceptance thereof are sufficient to render
him convicted for purposes of exclusion.

b. Petitioner’s conviction was related to the delivery of a
service under a state health care program.

A conviction is related to the delivery of an item or service under a state health care
program if there is a common sense connection or nexus between the offense and the
delivery of the item or service. Berton Siegel, D.O., DAB No. 1467 (1994). A state’s
Medicaid program is a “state healthcare program” under the Act. Act §§ 1128(h)(1);
1900(a). The Oklahoma Healthcare Authority is the state agency that administers the
Medicaid program in Oklahoma. I.G. Br. at 3 n.1.

In this case, the connection or nexus is clear because Petitioner pled guilty to two counts
of misdemeanor Medicaid fraud. Specifically, Petitioner admitted that he “submitted
billing to [the] OK Health Care Authority that was not correct” and “submitted bills to
OKHA for services not rendered.” I.G. Ex. 2 at 6. It is well-established that an

individual who submits false bills for services to a state’s Medicaid program has
committed an offense related to the delivery of an item or service within the meaning of
section 1128(a)(1) of the Act. Joann Fletcher Cash, DAB No. 1725, at 3 (2000) (citing
supporting cases). Petitioner does not contest that the offenses to which he pled guilty
relate to the delivery of an item or service under a state health care program. Based on
the offenses to which Petitioner pled guilty and the underlying facts of those offenses, I
find Petitioner’s criminal offenses relate directly to his delivery of services under the
Oklahoma Medicaid program.

c. Tam unable to consider Petitioner’s collateral attacks
to his predicate conviction.

Petitioner also challenges the fairness of his predicate conviction. The bulk of
Petitioner’s argument relates to the unfairness he perceives in the criminal process that
led to his conviction. For instance, he disputes that he committed the acts to which he
pled guilty and insists that he pled guilty “because the judge was tired of the case not
going anywhere.” P. Br. at 4. He explains that he did provide the services the state
alleged he did not provide, but he could not prove it because the agency for which he
worked had moved offices, and he could not locate his “daily planner to validate the
notes [he] submitted.” P. Br. at 4. He describes a number of actors whom he believes
instigated the charges against him due to a dispute with his wife and an investigation
process that lacked clarity or fairness. Further, he believes that because an exclusion was
not part of the disposition of his criminal case, it is unfair to impose one now, particularly
because the Attorney General of Oklahoma has not allowed him to provide services since
February 13, 2013. P. Br. at 2,4. Finally, Petitioner states that he simply wants to help
young people by making positives changes in their lives, and he has often done so on a
volunteer basis in the past. P. Br. at 4.

While Petitioner’s desire to help others may be laudable, I cannot review his predicate
convictions. 42 C.F.R. § 1001.2007(d). This principle is firmly established. See, e.g.,
Lyle Kai, R.Ph., DAB No. 1979, at 8 (2005) (“Excluding individuals based on criminal
convictions provides protection for federally funded programs and their beneficiaries and
recipients, without expending program resources to duplicate existing criminal
processes.” (internal citations and quotations omitted)). Although Petitioner alleges he
did not realize that accepting the plea would result in his exclusion, that is not a legal
basis for me to reverse the exclusion. See, e.g., Tamara Brown, DAB No. 2195, at 10
(2008).

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

Petitioner claims the five-year exclusion is unreasonable under the circumstances and
disproportionate to his offense. P. Br. at 4. When an individual is convicted of a
Medicaid-related criminal offense, not only is the I.G. required to exclude that individual
pursuant to section 1128(a)(1) of the Act, but the period of exclusion must be at least five
years. Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a). Ido not have the authority to
consider any mitigating circumstances here. Therefore, Petitioner’s exclusionary period
of five years is reasonable as a matter of law.

III. Conclusion

I find the I.G. was authorized to exclude Petitioner under section 1128(a)(1) of the Act
because Petitioner was convicted of two misdemeanor offenses related to the delivery of
a health care service under the Oklahoma Medicaid program. The five-year exclusion
that the I.G. imposed is mandatory as a matter of law and became effective 20 days from
the date of the I.G.’s October 31, 2014 exclusion notice. See 42 U.S.C. § 1320a-7(a); 42
CFR. § 1001.2002(b).

/s/

Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Rajean Moseley-Larue, PA-C,
(NPI: 1689602179; PTAN: 33754YYLK),
Petitioner,
v.
Centers for Medicare & Medicaid Services,

Respondent.

Docket No. C-15-234
Decision No. CR4065

Date: July 24, 2015

DECISION

Novitas Solutions (Novitas), an administrative contractor acting for the Centers for
Medicare & Medicaid Services (CMS), assigned Petitioner an effective date of December
23, 2013, in response to her Medicare enrollment application to add an employer for
direct billing purposes. Upon review, I sustain CMS’s determination and find that
Novitas had a legal basis to assign that effective date. I also dismiss Petitioner’s hearing
request related to an apparent untimely appeal of a separate CMS initial determination,
over which I have no jurisdiction.

I. Background

The following facts are undisputed unless otherwise noted. On or about December 18,
2013, Petitioner, a certified physician’s assistant, submitted a Medicare enrollment
application CMS Form 855-R seeking to add an employer, Advanced Spine Solutions
PA, also known as Advanced Spine & Orthopedics (Advanced Spine), which would then
be able to bill Medicare directly for Petitioner’s covered services. CMS Exhibit (Ex.) 1.
Petitioner requested an effective date of March 1, 2011. CMS Ex. 1 at 5. CMS received
Petitioner’s application on December 23, 2013. CMS Ex. 1 at 9. On an undetermined
date, Petitioner also apparently submitted a Medicare enrollment application to add
another employer, Ft. Worth Brain and Spine Institute, LLP.

In response to her Advanced Spine application, CMS notified Petitioner that she needed
to submit CMS Form 855-I instead of Form 855-R. CMS Ex. 2 at 1; see also CMS Ex. 1
at 2 (stating that physicians’ assistants must use Form 855-I to report employment
arrangements). In the Form 855-I enrollment application that Petitioner submitted in
response, she requested an effective date of February 1, 2011 for the addition of
Advanced Spine as her employer. CMS Ex. 3 at 10. CMS requested additional
information from her in order to process her application. CMS Ex. 2 at 3. CMS, through
Novitas, notified Petitioner on March 31, 2014, that it had accepted her Form 855-I and
the commencement of billing under the new employer would be effective November 23,
2013 (Advanced Spine Initial Determination).? CMS Ex. 4 at 2. Novitas also notified
Petitioner, on March 31, 2014, that CMS had accepted her Ft. Worth application and
assigned an effective date of December 24, 2013 (Ft. Worth Brain and Spine Initial
Determination) to add direct billing privileges for that employer. Request for Hearing in
C-15-234, Supplement at 2.

Petitioner requested a hearing by administrative law judge (ALJ) in a letter dated
September 8, 2014 (Request for Hearing in C-14-1961). Petitioner sought to challenge
the reconsidered determination that Novitas issued on August 25, 2014, in response to
Petitioner’s request that CMS reconsider the Advanced Spine effective date. CMS Exs.
5, 6. The case was docketed as C-14-1961, assigned to me for hearing and decision on
October 6, 2014, and I issued an Acknowledgment and Prehearing Order (Prehearing
Order C-14-1961) on that date.

Petitioner requested a second hearing before an ALJ in an undated letter that the Civil
Remedies Division received on October 22, 2014 (Request for Hearing in C-15-234). In
that letter, Petitioner appeared to challenge both Novitas’ August 25, 2014 reconsidered
determination and the Ft. Worth Brain and Spine Initial Determination. Along with the
second request for hearing, Petitioner submitted additional documents that I identify as

' Neither party ultimately proffered any Medicare enrollment applications related to Ft.
Worth Brain and Spine.

> In this letter, Novitas appears to have confused the effective date of Petitioner’s
addition of Advanced Spine and the retrospective billing date. The Hearing Officer,
however, correctly explains in the reconsidered determination that the effective date of
the addition is December 23, 2013, with retrospective billing privileges starting
November 23, 2013. CMS Ex. 6 at 2.
Petitioner’s Request for Hearing in C-15-234, Supplement. The case was docketed as C-
15-234, assigned to me on November 14, 2014 for hearing and decision, and I issued an
Acknowledgment and Prehearing Order (Prehearing Order C-15-234) on that date.

On December 11, 2014, I held a telephonic conference with Petitioner and counsel for
CMS to discuss the case statuses and procedural issues that these cases presented. In the
interest of judicial economy and absent objection, I ordered the consolidation of the
requests for hearing in a Consolidation Order dated December 11, 2014. I ordered docket
number C-14-1961 to be dismissed, and the cases were consolidated under docket
number C-15-234. CMS had already submitted its prehearing exchange in docket
number C-14-1961, and counsel for CMS asked that I consider CMS’s prehearing
exchange filed in C-14-1961, including a motion for summary judgment (CMS Br.) and
CMS exhibits (CMS Exs.) 1-6, as CMS’s prehearing exchange in C-15-234.
Consolidation Order at 3. I agreed to do so. I set a new deadline for Petitioner to file her
prehearing exchange and offered CMS the opportunity to supplement its prehearing
exchange if necessary.

Petitioner timely filed her prehearing exchange, including a brief (P. Br.) and Petitioner’s
exhibits (P. Exs.) 1-15. Petitioner submitted witness statements from six witnesses. P.
Ex. 11. CMS filed an objection to Petitioner’s exhibits (CMS Objection). CMS argued
that Petitioner proposed inadmissible new evidence, Petitioner’s Exhibits 1-6, 10, 12-13,
and 15, which she should have submitted when she requested reconsideration of the
Advanced Spine Initial Determination. CMS additionally argued that P. Ex. 1-6 and 15
were irrelevant because they relate to a dispute Petitioner has regarding the inactions and
misrepresentations of her former biller. CMS Objection at 1-2. The challenged exhibits
include:

An email from Petitioner’s former biller dated May 1, 2011 (P. Ex. 1);

An email to Petitioner’s former biller dated July 16, 2012, with a voided
check (P. Ex. 2);

An email from Petitioner’s former biller asking Petitioner to have an
unknown party sign an unidentified CMS form (P. Ex. 3);

An email dated April 8, 2013, containing a copy of a Federal Express
receipt showing that Petitioner submitted unknown documents to her
former biller on April 8, 2013 (P. Ex. 4);

An email from Petitioner’s former biller dated October 14, 2013, and an
accompanying chart purporting to show various billing numbers and
information for Petitioner (P. Ex. 5);

An email from Petitioner’s former biller dated March 23, 2012, and an
accompanying chart purporting to show cases for which Petitioner
submitted bills to either Medicare or private insurance companies (P. Ex.
6);
A December 15, 2014 letter from a doctor and Advanced Spine Solutions
regarding unpaid Medicare claims (P. Ex. 10);

A list of names and dates of service for which Petitioner seeks Medicare
reimbursement (P. Ex. 12);

Letters from Novitas to Petitioner regarding Petitioner’s enrollment
information (P. Ex. 13); and

A series of text messages between Petitioner and her former biller from
2011-2013 (P. Ex. 15).

Petitioner filed a response to CMS’s Objection (P. Response). Petitioner provided
several reasons why she had not previously submitted the documents, most of which aver
that she could not get assistance for her or her biller to understand what to submit and
when to submit it. P. Response at 2-3. Petitioner specifically argued that P. Exs. 1-6 and
15 are relevant to:

[S]how that good faith and trust was put into a biller . . . that was
representing herself as a medicare employee . . . [and] prove that the
previous biller said that the claims were in deed filed with medicare and
show that not only was Medicare not filed but hundreds of other insurance
claims were not filed as well.

P. Response at 4-5.

In supplier enrollment cases, without good cause I cannot accept new documentary
evidence that was not previously submitted to the administrative contractor. See 42
C.F.R. §§ 405.803(e), 498.56(e)(1). None of Petitioner’s explanations for why she did
not submit P. Exs. 1-6 justify or explain why she or her new biller did not submit all
documents she wished Novitas to consider with the reconsideration request. P. Response
at 2. Petitioner’s exhibits 10, 12, and 13 are all dated after she requested reconsideration
of the Advanced Spine Initial Determination, and therefore, it is understandable why
Petitioner did not originally submit them to Novitas. However, P. Exs. 1-6, 10, 12-13,
and 15 do not provide evidence that could assist me in establishing the critical fact of
whether Petitioner submitted an enrollment application adding Advanced Spine before
December 23, 2013, the date on which Novitas acknowledges receiving an application
from Petitioner that it ultimately was able to approve. Therefore, I do not find good
cause to admit P. Exs. 1-6, 10, 12-13, and 15.

Petitioner did not object to any of CMS’s exhibits. Therefore, I admit P. Exs. 7-9, 11,
and 14 and CMS Exs. 1-6 to the record. Petitioner submitted affidavits of direct
testimony from six proposed witness as P. Ex. 11. CMS did not request to cross-examine
any of Petitioner’s witnesses and did not propose any witness testimony. I informed the
parties that I would only conduct a hearing if either party submitted affidavits of direct
testimony from witnesses, and the opposing party expressed its intention to cross-
examine any witness. Prehearing Order C-15-234 410. Because CMS did not seek to
cross-examine Petitioner’s witnesses, an in-person hearing is not necessary, and I decide
this case on the full merits of the written record. Prehearing Order C-15-234 911; Marcus
Singel, D.P.M., DAB No. 2609, at 4, 5-6 (2014).

On January 12, 2015, CMS moved to dismiss (Motion to Dismiss) Petitioner’s Request
for Hearing in C-15-234 and submitted a supporting exhibit (Motion to Dismiss Ex. 1).
In that hearing request, Petitioner sought to challenge both the reconsidered
determination that Novitas issued on August 25, 2014, and the Ft. Worth Brain and Spine
Initial Determination. See Request for Hearing in C-15-234; Request for Hearing in
C-15-234, Supplement. On February 11, 2015, Petitioner filed an opposition (P.
Opposition) to CMS’s Motion to Dismiss.

IL. Issues

1. Whether I must dismiss the hearing request Petitioner submitted in
docket number C-15-234; and,

2. Whether CMS had a legal basis to establish an effective date of
December 23, 2013, for Petitioner’s addition of Advanced Spine as her
employer.

III. Findings of Fact and Conclusions of Law

I. I must dismiss the hearing request that Petitioner submitted in docket
number C-15-234 because I lack jurisdiction.

My jurisdiction to review actions related to Medicare provider and supplier enrollment is
limited to the bases enumerated at 42 C.F.R. § 498.5. 42 C.F.R. § 498.40(a)(1).
Suppliers, such as Petitioner,’ are entitled to ALJ hearings if they are dissatisfied with a
determination authorized under 42 C.F.R. § 498.5(J)(1). See 42 C.F.R. § 498.5(/)(2).
CMS’s determination, or that of one of its contractors, of a supplier’s effective date of
Medicare participation is an appealable initial determination. 42 C.F.R. § 498.3(a)(1),
(b)(15); Victor Alvarez, M.D., DAB No. 2325, at 5 (2010) (“[A] determination about the
effective date of supplier approval . . . can reasonably be considered an initial
determination within the scope of section 498.5(/) ....”). The appeal procedures under
Part 498 require a supplier dissatisfied with an initial determination to first request
reconsideration from CMS or a CMS contractor. 42 C.F.R. §§ 498.5(J)(1), 498.22(a),
(b)(1). It is only after CMS (or the contractor) then issues a reconsidered determination

> “Suppliers” include physicians, other practitioners, and “entities (other than providers
of services) that furnish[] items or services... .” 42 U.S.C. § 1395x(d).
that a supplier may request review before an ALJ. 42 C.F.R. § 498.5(/)(2). Imay
dismiss a hearing request where the party requesting a hearing does not have a right to a
hearing. 42 C.F.R. § 498.70(b).

As part of the hearing request she submitted in docket number C-15-234, Petitioner
included two Novitas determinations: an initial determination of the effective date of her
addition of Ft. Worth Brain and Spine as her employer dated March 31, 2014, anda
reconsidered determination related to the effective date of her addition of Advanced
Spine Solutions as her employer. See Request for Hearing in C-15-234; Request for
Hearing in C-15-234, Supplement. I acknowledged this request for hearing and
consolidated it with a previous related request for hearing that Petitioner had submitted.
Subsequent case development made it clear that Petitioner did not request reconsideration
of the Ft. Worth Brain and Spine Initial Determination as required by 42 C.F.R.

§ 498.5()(1). Motion to Dismiss at 2-3; Motion to Dismiss Ex. 1. Therefore, Petitioner
is not entitled to ALJ review of that initial determination.

In opposition to CMS’s Motion to Dismiss, Petitioner concedes that CMS has not issued
a reconsidered determination with respect to the Ft. Worth Brain and Spine Initial
Determination. P. Opposition at 2-4. She argues that she would have requested
reconsideration, but a Novitas official “specifically told [Petitioner’s representative] that
the letter asking for reconsideration of backdating the effective date for [Ft. Worth Brain
and Spine] . . . should NOT be sent to her, because all correspondence at this point would
have to go to the appeals board in Washington DC.” P. Opposition at 3. Petitioner
explains that she has “exhausted all avenues with CMS” and asks that “the Novitas’
March 31, 2014 initial determination be reconsidered or modified by a hearing decision
under section 498.78, or revised under section 498.32 or 498.100 (reopening and
revision).” P. Opposition at 1-2.

The regulations permitted Petitioner to request reconsideration of the Ft. Worth Brain and
Spine Initial Determination by filing a request for reconsideration with CMS or the entity
specified in the notice of initial determination (in this case, Novitas) within 60 days of
receiving the notice of initial determination. 42 C.F.R. § 498.22(a)-(b). The Ft. Worth
Brain and Spine Initial Determination explicitly informed Petitioner that she must submit
a request for reconsideration to Novitas at an address listed therein. Request for Hearing
in C-15-234, Supplement. Petitioner had 60 days from the date she received the March
31, 2014 Ft. Worth Brain and Spine Initial Determination to request reconsideration.

42 C.F.R. §498.22(b)(3). Therefore, even assuming, as Petitioner asserts, a Novitas
official told her in August 2014 that she should send her request for reconsideration to the
Departmental Appeals Board (DAB), Petitioner would have submitted the request well
after the 60-day deadline. There appears to have been some miscommunication or
confusion in whatever discussions Petitioner’s representative had with the Novitas
representative. The Novitas representative’s reported statement was correct in so far as
Petitioner should have submitted any documents related to the Advanced Spine Initial

Determination (and subsequent reconsidered determination) to the DAB, which Petitioner
did. Petitioner, her representative, or the Novitas official may have also attributed that
advice to the Ft. Worth Brain and Spine Initial Determination, which would have been in
error. Nevertheless, in the absence of affirmative misconduct, Petitioner cannot excuse
neglecting to follow the instructions in the Ft. Worth Brain and Spine Initial
Determination to request reconsideration from Novitas, by solely asserting that a Novitas
official misinformed her. See, e.g., Pacific Islander Council of Leaders, DAB No. 2091,
at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).

Petitioner had, and in fact still has, the ability to request reconsideration of the Ft. Worth
Brain and Spine Initial Determination from Novitas because Novitas could still accept
that reconsideration request if Petitioner were to establish good cause for submitting it
late. See 42 C.F.R. § 498.22(d). However, I do not have jurisdiction to consider
Petitioner’s request for hearing at this level of review as it relates to the Ft. Worth Brain
and Spine Initial Determination, and therefore I must dismiss Petitioner’s hearing request
as it relates to that determination.’ See 42 C.F.R. § 498.70(b).

2. CMS properly identified December 23, 2013, as the effective date of
Petitioner’s addition of Advanced Spine because that is the earliest date on
which Novitas received an enrollment application that it subsequently
approved.

Suppliers must enroll in the Medicare program to receive payments for services they
render to Medicare beneficiaries. 42 C.F.R. § 424.505. As part of the enrollment process
suppliers must identify, and CMS must confirm, the supplier’s practice location.

42 C.F.R. § 424.502. In order to bill for services rendered to Medicare patients, a
physician or non-physician practitioner’ must establish the practice location at which he
or she will provide services. 73 Fed. Reg. 69,726, 69,770 (Nov. 19, 2008). A supplier
must submit a completed enrollment application in order to enroll in the Medicare
program and must update his or her enrollment information within specified timeframes.
42 C.F.R. §§ 424.510(d)(1); 424.515(a); 424.516(d). Suppliers may submit enrollment
applications either via a CMS-approved paper application or an electronic process
approved by the Office of Management and Budget. 42 C.F.R. § 424.502. Physicians
and non-physician practitioners submit CMS Form 855-1 if they are currently enrolled
and need to make changes to their practice locations. See, e.g., CMS Ex. 3 at 2. Payment

* T cannot grant Petitioner’s request that I “revise[] [the initial determination] under [42
C.F.R.] section 498.32 or 498.100.” P. Opposition at 2. Section 498.32 describes the
notice and effect of reopening or revising a determination, while section 498.100 only
applies after an ALJ or the Board has issued a decision.

> A physician’s assistant is a “non-physician practitioner” for Medicare enrollment
effective date purposes. 73 Fed. Reg. 69,726, 69,766; CMS Ex. 3 at 2.
for a physician assistant’s services may only be made to the physician assistant’s
employer, not directly to the physician assistant. Medicare Program Integrity Manual
§ 15.4.4.12.

The effective date of a physician and non-physician practitioner’s Medicare enrollment
“is the later of the date of filing” of a subsequently approved enrollment application or
“the date an enrolled physician or non-physician practitioner first began furnishing
services at a new practice location.” 42 C.F.R. § 424.520(d). The date of filing of the
enrollment application is the date when the designated Medicare contractor receives the
complete enrollment application and supporting documentation. 42 C.F.R.

§ 424.510(d)(1); 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008). A non-physician
practitioner may bill retrospectively for up to “30 days prior to their effective date if
circumstances precluded enrollment in advance of providing services to Medicare
beneficiaries.” 42 C.F.R. § 424.521(a)(1).

Petitioner first submitted an enrollment application, CMS Form 855-R, to Novitas on
December 18, 2013, to add Advanced Spine as her employer, or practice location, and
assign her billing privileges to Advanced Spine. CMS Ex. | at 6, 7. Novitas received
Petitioner’s application on December 23, 2013. CMS Ex. | at 9. Novitas instructed
Petitioner to submit a different form, CMS Form 855-I, instead and subsequently
instructed Petitioner to submit additional information related to the second form. CMS
Ex. 2. CMS approved Petitioner’s Medicare enrollment and addition of Advanced Spine
in a letter dated March 31, 2014. CMS Ex. 4. As the Hearing Officer also found (CMS
Ex. 6 at 2), I find Petitioner has not submitted any evidence that she submitted an earlier
enrollment application adding Advanced Spine that CMS subsequently approved.

Petitioner requests an effective date of January 1, 2011, when she first began providing
services at Advanced Spine, and this is an earlier effective date than she originally
requested in her enrollment applications but consistent with the date she sought in her
reconsideration request. RFH in C-14-1961; P. Br. at 3; CMS 1 at 5; CMS Ex. 3 at 10;
CMS Ex. 5 at 1. In her Brief, her Response, and her Opposition, Petitioner explains how
she began working with her previous biller and the degree to which she relied on her
biller to submit claims on her behalf. Though I did not admit the evidence, Petitioner
offered text messages over a period of more than two years that demonstrate her attempts
to solicit information regarding the status of her Medicare enrollment from her former
biller, despite that biller’s apparent inaction and misrepresentations. If Petitioner’s
claims are accurate, and I have no reason to believe they are not, her former biller has
done Petitioner a great disservice, and I note Petitioner provided documents that show she
is pursuing a legal challenge against her former biller. See Request for Hearing in C-14-
1961, Supplement. However, even if I accept all of those allegations as true, I may not
consider them in Petitioner’s challenge to the effective date that Novitas properly
determined.

Petitioner concedes that she makes a “request for equitable relief,” which Petitioner
believes “should serve as a reason to change the effective date.” P. Br. at 3. As an initial
matter, I do not have any authority to grant Petitioner equitable relief. Oklahoma Heart
Hosp., DAB No. 2183, at 16 (2008) (‘Consideration of equitable theories of relief is
beyond our scope of review.”); Wade Pediatrics, DAB No. 2153, at 22 n.9 (2008), aff'd,
567 F.3d 1202 (10th Cir. 2009). Moreover, suppliers are responsible for the actions or
inactions of their billers. 73 Fed. Reg. 36,448, 36,455 (June 27, 2008) (“[I]t is essential
that providers and suppliers take the necessary steps to ensure they are billing
appropriately for services furnished to Medicare beneficiaries.”); Louis J. Gaefke,
D.P.M., DAB No. 2554 (2013) (‘Petitioner as a Medicare supplier is ultimately
responsible for the accuracy of his claims for Medicare reimbursement.”). Therefore, I
must find that CMS had a legal basis when it established the effective dates of
Petitioner’s billing privileges and affiliation with Advanced Spine.

IV. Conclusion

I order Petitioner’s hearing request as it relates to the Ft. Worth Brain and Spine Initial
Determination dismissed. I find CMS and its contractor had a legal basis to establish an
effective date of December 23, 2013 for Petitioner’s enrollment and affiliation with
Advanced Spine and sustain that determination.

/s/
Joseph Grow
Administrative Law Judge