Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Golden Cross Health Care of Fresno
(CCN: 55-5426),
Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-09-568
Decision No. CR2186

Date: July 19, 2010

DECISION

Petitioner, Golden Cross Health Care of Fresno (Petitioner or facility), is a long-term care
facility located in Fresno, California, that participates in the Medicare program. The
Centers for Medicare and Medicaid Services (CMS) determined that, among other
deficiencies, the facility was not in substantial compliance with Medicare requirements
for preventing accidents and that its deficiencies posed immediate jeopardy to resident
health and safety. CMS has imposed a $7,000 per instance civil money penalty (CMP).

Petitioner appealed, and CMS now moves for summary judgment.

For the reasons set forth below, I find that CMS is entitled to summary judgment. CMS
has come forward with evidence establishing that the facility was not in substantial
compliance with Medicare program requirements and that the penalty imposed is
reasonable. Petitioner has tendered no evidence suggesting a dispute over any material
fact, and only one reasonable conclusion can be drawn from the undisputed facts.
I. Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in
the Medicare program and authorizes the Secretary of Health and Human Services to
promulgate regulations implementing those statutory provisions. Act §1819. The
Secretary’s regulations are found at 42 C.F.R. Part 483. To participate in the Medicare
program, a nursing facility must maintain substantial compliance with program
requirements. To be in substantial compliance, a facility’s deficiencies may pose no
greater risk to resident health and safety than “the potential for causing minimal harm.”
42 CFR. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to
determine whether skilled nursing facilities are in substantial compliance. Act § 1864(a);
42 C.F.R.§ 488.20. The regulations require surveying each facility once every twelve
months, and more often, if necessary, to ensure that identified deficiencies are corrected.
Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308.

Here, following an abbreviated standard survey, completed April 22, 2009, CMS
determined that the facility was not in substantial compliance with Medicare participation
requirements and that its deficiencies posed immediate jeopardy to resident health and
safety. Specifically, CMS found that the facility was not in substantial compliance with
42 C.F.R. § 483.25(h) (Tag F323) (accident prevention and supervision), as well as 42
C.F.R. § 483.15(a) (Tag F241) (resident dignity), and 43 C.F.R. § 483.20(k)(3)(i) (Tag
F281) (comprehensive care plans). CMS also determined that the facility’s failure to
meet the requirements of 42 C.F.R. § 483.25(h) posed immediate jeopardy to resident
health and safety. CMS Exhibit (Ex.) 1; CMS Ex. 2. Based on the facility’s substantial
noncompliance, CMS denied payment for new admissions, effective May 21, 2009.
Based solely on the deficiency cited under § 483.25(h), CMS imposed a $7,000 per
instance CMP. CMS Ex. 2.

Petitioner timely requested a hearing. The parties filed their initial briefs (CMS Br.; P.
Br.). CMS filed a motion for summary judgment (CMS MSJ) to which Petitioner filed a
response (P. Resp.). CMS submitted 27 exhibits (CMS Exs. 1-27). Petitioner submitted
42 exhibits (P. Exs. 1-42).

IL. Issues

I consider whether summary judgment is appropriate.

On the merits, I consider:

1) whether, at the time of the April 22, 2009 survey, the facility was in
substantial compliance with 42 C.F.R. § 483. 25(h); and
2) if the facility was not in substantial compliance, is the penalty imposed —
$7,000 per instance — reasonable?

Because CMS bases the denial of payments for new admissions (DPNA) on all of the
cited deficiencies, I have the authority to review them all. See Schowalter Villa, DAB
No. 1688 (1999). Nevertheless, in the interests of administrative economy, I do not
consider the facility’s compliance with 42 C.F.R. §§ 483.15(a) and 483.20(k)(3)(i).
Because I find that the facility was not in substantial compliance with 42 C.F.R. §
483.25(h), CMS has the authority to impose any of the penalties listed in 42 C.F.R. §
488.406, which include imposing a DPNA. Act § 1819(h); 42 C.F.R. § 488.402; see
Claiborne-Hughes Health Ctr., No. 09-3239 at 11 (6th Cir. 2010).

Nor will I review CMS’s finding of immediate jeopardy. An Administrative Law Judge
(ALJ) may review CMS’s scope and severity findings (which include a finding of
immediate jeopardy) only if: (1) a successful challenge would affect the range of the
CMP; or (2) CMS has made a finding of substandard quality of care that results in the
loss of approval of a facility’s nurse aide training program. 42 C.F.R. § 498.3(b)(14); 42
C.F.R. § 498.3(d)(10); see Evergreen Commons, DAB No. 2175 (2008); Aase Haugen
Homes, DAB No. 2013 (2006). Here, the penalty imposed is a per instance CMP, for
which the regulations provide only one range ($1,000 to $10,000), so the level of
noncompliance does not affect the range of the CMP. 42 C.F.R. § 488.438(a)(2). Nor
does CMS’s scope and severity finding affect approval of the facility’s nurse aide
training program. Where, as here, the facility has been assessed a CMP of $5,000 or
more, the state agency may not approve its nurse aide training program. Act §
1819(£)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv).

II. Discussion

Summary Judgment. Summary judgment is appropriate if a case presents no genuine
issue of material fact, and the moving party is entitled to judgment as a matter of law.
Illinois Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting
evidence so one-sided that it must prevail as a matter of law, or by showing that the non-
moving party has presented no evidence “sufficient to establish the existence of an
element essential to [that party’s] case, and on which [that party] will bear the burden of
proof at trial.” Livingston Care Ctr. v. Dep’t of Health & Human Servs., 388 F.3d 168,
173 (6th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). To
avoid summary judgment, the non-moving party must then act affirmatively by tendering
evidence of specific facts showing that a dispute exists. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No.
1939 (2004); Lebanon Nursing and Rehab. Ctr., DAB No. 1918 (2004).
To defeat an adequately supported summary judgment motion, the non-
moving party may not rely on the denials in its pleadings or briefs, but must
furnish evidence of a dispute concerning a material fact... .

Illinois Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5
(2003).

In examining the evidence for purposes of determining the appropriateness of summary
judgment, I must draw all reasonable inferences in the light most favorable to the non-
moving party. Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr.,
388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); but see
Brightview, DAB No. 2132 at 10 ([E]ntry of summary judgment upheld where inferences
and views of non-moving party are not reasonable.). However, drawing factual
inferences in the light most favorable to the non-moving party does not require that I
accept the non-moving party’s legal conclusions. Cf Guardian Health Care Ctr., DAB
No. 1943 at 11 (‘A dispute over the conclusion to be drawn from applying relevant legal
criteria to undisputed facts does not preclude summary judgment if the record is
sufficiently developed and there is only one reasonable conclusion that can be drawn
from those facts.”).

A. CMS is entitled to summary judgment. The undisputed
evidence establishes that the facility was not in substantial
compliance with 42 C.F.R.§ 483.20(h), because facility staff
did not ensure that the resident environment remained as
Sree of accident hazards as possible and did not take
reasonable steps to ensure that one of its residents received
supervision sufficient to mitigate foreseeable risks of harm
JSrom accidents.

Regulatory Requirements. Under the statute and the “quality of care” regulation, each
resident must receive, and the facility must provide, the necessary care and services to
allow a resident to attain or maintain the highest practicable physical, mental, and
psychosocial well-being, in accordance with the resident’s comprehensive assessment
and plan of care. Act § 1819(b); 42 C.F.R. § 483.25. The facility must “ensure” that the
resident’s environment remains as free of accident hazards as is possible. It must “take
reasonable steps to ensure that a resident receives the supervision and assistance devices
designed to meet his assessed needs and to mitigate foreseeable risks of harm from
accidents.” Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007); Guardian Health Care

' My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion
captions of this decision.
Ctr., DAB No. 1943 at 18 (citing 42 C.F.R. § 483.25(h)(2)). The facility must anticipate
what accidents might befall a resident and take steps to prevent them. A facility is
permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen
methods must constitute an “adequate” level of supervision under all the circumstances.
Briarwood, DAB No. 2115 at 5; Windsor Health Care Ctr., DAB No. 1902 at 5 (2003).

Resident 1 (R1). This case centers around the facility’s treatment of R1, a 63-year-old
resident suffering from a serious mental illness — schizophrenia, bipolar type — as well as
a number of physical ailments. CMS Ex. 7 at 8; CMS MSJ at 6; P. Ex. 1; P. Resp. at 6.
Among his problem behaviors, he made inappropriate sexual advances toward women
residents and staff. CMS Ex. 7 at 7, 8; CMS Ex. 9 at 7-8; P. Ex. 1. At one time, his
physicians treated his schizophrenia with an anti-psychotic medication (Zyprexa). But,
because R1 repeatedly refused to take it, his primary care physician, Dr. O’Key Sams,
discontinued the medication orders on December 9, 2008. CMS Ex. 7 at 8; CMS Ex. 8
at 2; CMS Ex. 9 at 7; P. Ex. 1.7

Until February 2009, physician orders called for “behavior monitoring” every shift.
Specifically, the physician directed staff to monitor the resident for “episodes of
schizophrenia disorder” manifested by sexual advances toward female peers and female
staff. Another order directed staff to monitor for side effects/adverse reaction to
antipsychotic medications. CMS Ex. 7 at 7. At the facility’s request, however, on
February 10, 2009, Dr. Sams discontinued all behavior monitoring orders “because the
resident is not on any psychotropic medications at this time.” CMS Ex. 7 at 5-7; CMS
Ex. 9 at 6.

Thereafter, however, R1 engaged in sexually inappropriate behaviors. CMS Ex. 9 at 6.
On March 15, 2009, one of the facility’s housekeepers observed R1 lying outside on the

back patio, refusing to get up, his face bleeding. He had used a razor to cut his face. He
told staff that he wanted to die. When they approached him, he swung the razor at them,

R1 “had been regularly refusing to take any antipsychotic medication for many years.”
P. Resp. at 16; P. Ex. 40. Yet, his care plan does not mention that the medications were
not provided “due to [his] exercise of rights . . . to refuse treatment.” See 42 C.F.R.

§ 483.20(K)(1)(ii).

* Obviously, staff need not monitor for adverse reactions to medication if the resident no
longer takes medications. However, nothing in this record explains why the physician
would also cancel his orders for behavior monitoring. Where the individual is no longer
taking his anti-psychotic medications, it seems all the more important to monitor for
acute episodes of schizophrenia. Although puzzling, I do not find the issue material, and,
for summary judgment purposes, I infer validity to the physician’s decision to
discontinue these behavior-monitoring orders.

but they were able to take it away from him. Staff called an ambulance, and he was taken
to the hospital, where he was held for a 72-hour psychiatric observation. CMS Ex. 9 at 6;
CMS Ex. 13; CMS Ex. 14 at 1; P. Ex. 26 (Amesquida Decl. 93); P. Ex. 38 (Villa Decl. ff
4,5, 6); P. Ex. 28 at 2 (Crawford-Hood Decl. § 9).

The parties dispute whether R1 had a prior history of cutting himself. Compare CMS
MSJ at 7 with P. Response at 8, 13-14. For purposes of summary judgment, I accept that
facility staff were not aware of any self-injurious behavior prior to March 15, 2009.

R1 was readmitted to the facility on March 18, 2009, “[status post] suicide attempt.”
CMS Ex. 7 at 4; P. Exs. 2, 3. At the time of his admission, his physician ordered staff to
1) monitor behaviors for suicidal ideations every shift; 2) monitor his environment every
shift for sharp objects, and to remove them if found; and 3) monitor for isolation, sadness,
or statements of doom. Staff were to keep a tally of their findings, placing hash marks on
the monitoring sheets. CMS Ex. 7 at 3; P. Ex. 4 at 1; P. Ex. 5 at 2-4; P. Ex. 7 at 1, 4-5.
His psychiatrist, Dr. Gill, ordered psychotropic medications (Zyprexa, Haldol, Ativan,
and Lexapro), but, on March 24, 2009, Dr. Sams again discontinued those medications
and instructed staff to consult Dr. Gill about the possibility of ordering the medications
administered by intramuscular injection. CMS Ex. 7 at 2; P. Ex. 3 at 3; P. Ex. 6. *

At the same time that Dr. Sams discontinued the orders for psychotropic medications, he
discontinued the behavior-monitoring orders. P. Ex. 7 at 5; P. Ex. 28 at 3 (Crawford-
Hood Decl. § 12). Although Petitioner asserts that “nurses are obliged to abide by these
orders” (P. Resp. at 17), it does not seriously argue that staff were therefore precluded
from monitoring R1’s behaviors. In fact, Petitioner later acknowledges that nurses
continued monitoring “‘as a nursing intervention.” P. Resp. at 18. According to the
facility’s monitoring sheets, staff continued monitoring R1’s mood and, beginning April
1, 2009, resumed monitoring his environment for sharp objects. P. Ex. 7 at 4, 7, 9.

On April 6, 2009, Surveyor Colleen Newby, R.N., found razors in two of the drawers of
R1’s bedside stand, tucked underneath his clothes. She also found a rimless mirror on his
bed. CMS Ex. 22 at 4 (Newby Decl. § 11); CMS Ex. 1 at 11-12. According to Surveyor
Newby, staff admitted giving R1 a razor to use while he bathed. CMS Ex. 22 at 4
(Newby Decl. § 12). Petitioner disputes the assertion, and, for purposes of summary
judgment, I resolve the factual dispute in Petitioner’s favor.

+ R1’s care plan was not updated to reflect his suicidal ideation until April 7, 2009. The

facility’s Director of Nursing (DON) Teary Searcy, by herself, added the diagnosis to his
care plan, without input from an interdisciplinary team. No interventions were added to
the plan. P. Ex. 36 at 2 (Searcy Decl. § 20); compare P. Ex. 1 with P. Ex. 14.
Petitioner nevertheless concedes that staff were aware of the mirror and that R1
frequently pilfered items — including razors — off the nurse aide carts, hiding them in his
wheelchair, his room, or a pouch around his neck. P. Resp. at 14; P. Ex. 36 at 1 (Searcy
Decl. 4 3); P. Ex. 28 at 1 (Crawford-Hood Decl. 4 5). Petitioner justifies allowing R1 to
keep the mirror, because he liked to use tweezers and the mirror to pull hair from his
face. P. Ex. 28 at 1 (Crawford-Hood Decl. 4 3).* According to Licensed Vocational
Nurse (LVN) Judy Crawford-Hood, “[p]rior to March 15, 2009, [R1] never used his
small mirror or any items that he pilfered inappropriately, nor did he exhibit any self-
abusive behaviors or suicidal ideations.” P. Ex. 28 at 1 (Crawford-Hood Decl. § 5).

l accept that, prior to March 15, R1 displayed neither self-abusive behavior nor suicidal
ideation. But on March 15 that all changed. From that point, facility staff knew that R1,
with his largely untreated schizophrenia, was capable of serious self-injurious behavior
and could not safely be allowed sharp objects. Yet, no one even considered that an
unframed mirror is a sharp object posing a significant risk.

Even more disturbing, R1 possessed razors, which shows that the facility ineffectively
monitored his environment for sharp objects. The razors Surveyor Newby found were not
particularly well-concealed. They were in two of his bed-side drawers underneath his
clothing. Any cursory search would have produced them. Moreover, staff admit that
they were well-aware of R1’s pilfering from the nurse aide carts, but Petitioner offers no
evidence that the facility made any particular effort to keep razors off those carts and
away from R1 until April 7, 2009, the day after Surveyor Newby found the razors in R1’s
bed-side stand. P. Ex. 22 at 5.

Petitioner suggests a factual dispute as to when R1 “secreted” the razors in his bedside
stand. According to Petitioner, he could have done so “immediately prior to the
inspection.” P. Resp. at 22. Petitioner comes forward with no evidence to establish this
‘actual dispute — no staff member claims to have searched R1’s bedside stand at any point
prior to the discovery. But the issue is not material. The facility was deficient, because

* R1’s care plan identifies as a problem his proclivity for tweezing his whiskers and in no
way suggests that the behavior should be encouraged. P. Ex. 1. According to Carolyn
Norcross, the facility administrator, he also “liked to keep his face, chest, and arms free
of hair.” P. Ex. 34 at 1 (Norcross Decl. § 3). Further, according to the declarations of
staff, R1 displayed other significant behaviors that do not appear to have been addressed
in his care plan, nor discussed much in his treatment records. He liked to sun himself
naked in the back of the facility, which seems problematic for someone who has a history
of disrobing in public. P. Ex. 34 at 1 (Norcross Decl. 4 3); P. Ex. 41 at 4. He also
regularly purged, which seems a problematic behavior for anyone, but especially for
someone with a history of anemia and GI bleeding. P. Ex. 34 at 1 (Norcross Decl. § 3);
P. Ex. 37 at 1 (Taylor Decl. § 3). The appropriateness of the facility’s response (or lack
of response) to these behaviors is not before me, however.
R1 had access to these dangerous objects, which shows that it was not taking the steps
necessary to keep the resident safe.

Thus, after March 15, 2009, the facility knew that allowing R1 access to sharp objects
could endanger his safety. Yet, it did not ensure that his environment was as free of
accident hazards as possible, nor did it take reasonable steps to provide the supervision he
needed to mitigate foreseeable risks of harm from accidents. The facility was therefore
not in substantial compliance with 42 C.F.R. § 483.25(h).

B. The penalty imposed is reasonable.

I next consider whether the CMP is reasonable by applying the factors listed in 42 C.F.R.
§ 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial
condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of
culpability, which includes neglect, indifference, or disregard for resident care, comfort
or safety. The absence of culpability is not a mitigating factor. The factors in 42 C.F.R.
§ 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the
deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior
history of noncompliance in general and specifically with reference to the cited
deficiencies.

In reaching a decision on the reasonableness of the CMP, I consider whether the evidence
supports a finding that the amount of the CMP is at a level reasonably related to an effort
to produce corrective action by a provider with the kind of deficiencies found and in light
of the above factors. I am neither bound to defer to CMS’s factual assertions nor free to
make a wholly independent choice of remedies without regard for CMS’s discretion.
Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Community Nursing Home, DAB No.
1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver
Spring, DAB No. 1638 at 8 (1999).

CMS has imposed just one $7,000 per instance CMP, which is in the mid-to-high end of

the penalty range ($1,000-$10,000). 42 C.F.R. §§ 488.408(d)(iv), 488.438(a)(2). On the
other hand, the penalty is modest considering what CMS might have imposed. See Plum

City Care Ctr., DAB No. 2272 at 18-19 (2009) (Even a $10,000 per instance CMP can be
“a modest penalty when compared to what CMS might have imposed.”).

CMS does not cite facility history as a factor that justifies a higher CMP.

With respect to its financial condition, Petitioner has submitted no financial documents,
such as tax returns, financial statements, or audits to establish its financial condition.
However, in a supplemental declaration, the facility administrator points out that, from
2007 to 2009, the State of California was delinquent in paying its Medi-Cal providers and
argues that a $7,000 CMP places an additional “financial burden on the facility.” Decl. of
Carolyn Norcross (Feb. 12, 2010); P. Resp. at 21. I accept her assertion as true; however,
that a CMP imposes “financial burden” does not make it unreasonable. In fact, a CMP is
supposed to impose a financial burden significant enough to compel corrective action. In
any event, Petitioner misstates the standard for determining whether a CMP is reasonable
based on the facility’s financial condition. The facility must show that it lacks “adequate
assets to pay the CMP without having to go out of business or compromise resident
health and safety.” Sanctuary at Whispering Meadows, DAB No. 1925 at 19 (2004);
Guardian Care Nursing and Rehab. Ctr., DAB No. 2260 at 9-10 (2009). Since Petitioner
does not claim this degree of financial insolvency, its financial condition does not render
the CMP unreasonable.

With respect to the remaining factors, I consider the severity of the deficiencies
significant enough to warrant at least this relatively modest penalty. Facility staff knew
that this seriously mentally ill resident was capable of significant self-injurious behavior,
as he had taken a razor blade to his face. Allowing him unsupervised access to sharp
objects was likely to cause him serious injury or even death. Yet, no one reconsidered
the wisdom of allowing him an unframed mirror, and R1 continued to have access to
razors. These failures evidence significant disregard for the resident’s safety, for which
the facility is culpable.

I therefore find reasonable the $7,000 per instance CMP.
IV. Conclusion

Accepting as true all of Petitioner’s factual assertions, I find that the facility was not in
substantial compliance with the Medicare requirements governing residents’ special
needs, 42 C.F.R. § 483.25(h). The $7,000 per instance penalty imposed is reasonable. I
therefore grant CMS’s motion for summary judgment.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Arwinnah P. Bautista, M.D.,
Petitioner
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-781
Decision No. CR2185

Date: July 16, 2010

DECISION DISMISSING APPEAL FOR CAUSE

For the reasons set forth below, I find that Petitioner, Arwinnah P. Bautista, M.D., failed
to file a timely request for a hearing or establish good cause to extend the time for such
filing. 42 C.F.R. § 498.40(c). Petitioner therefore does not have a right to an
Administrative Law Judge (ALJ) hearing to review the Medicare contractor’s March 10,
2010 reconsideration decision. I therefore dismiss this case pursuant to 42 C.F.R.

§ 498.70(c).

I. Background

Petitioner was granted participation as a provider in the Medicare program effective
September 20, 2009. Petitioner sought to change his effective date from September 20,
2009 to May 1, 2009, and requested reconsideration by the Medicare contractor. By
letter dated March 10, 2010, the contractor stated that “[p]hysician and non-physician
practitioners cannot appeal the effective date decision made by the contractor.” Thus, the
effective date remained September 20, 2009. The contractor’s March 10, 2010
reconsideration decision letter explained that appeal rights can be found at 42 C.F.R. 498.
By letter dated April 15, 2010, Petitioner filed a request for hearing before an
Administrative Law Judge (ALJ) again requesting a change in the effective date of his
participation in the Medicare program. However, according to the envelope in which the
earing request letter arrived, the actual mailing date of the request for hearing is June 12,
2010, almost two months after the date typed on the letter itself.

Per 42 C.F.R. § 498.40(a)(2), Petitioner “must file the request [for hearing] in writing
within 60 days from receipt of the notice of initial, reconsidered, or revised
determination.”

Pursuant to 42 C.F.R. § 498.40(c), if the request for hearing was not filed within 60 days,
the affected party must show good cause as to why I should extend the time for filing a
request for hearing. Accordingly, by Order to Show Cause dated July 1, 2010, I directed
Petitioner to show cause why this case should not be dismissed as untimely.

Petitioner’s representative responded by letter dated July 6, 2010.
IL. Issue

The issue in this case is whether, pursuant to 42 C.F.R. § 498.40(c), Petitioner has shown
good cause for me to extend the time for filing his request for hearing beyond 60 days
and thus not dismiss the case as untimely under 42 C.F.R. § 498.70(c).

III. Findings of Fact, Conclusions of Law, and Supporting Discussion

My findings of fact and conclusions of law are set out as separate headings followed by
supporting discussion.

A. Petitioner’s hearing request is untimely.

The number of days between the date of the reconsideration decision (March 10, 2010)
and the date of mailing the request for hearing (June 12, 2010) is 94 days. The hearing
request was required to be filed within 60 days of receipt of the reconsideration decision
under the authorities cited above. Section 498.22(b)(3) provides that the “‘date of receipt
will be presumed to be 5 days after the date on the notice unless there is a showing that it
was, in fact, received earlier or later.” Petitioner has not alleged a later date of receipt of
the reconsideration decision or an earlier date of mailing of its hearing request.

It follows that Petitioner’s hearing request was filed 29 days late. Petitioner does not
deny that the request was untimely, and I find it undeniable on this record.
B. Petitioner has not demonstrated good cause to extend the time for filing
that 42 C.F.R. § 498.40(c)(2) provides.

As discussed, Petitioner’s representative responded to my Order to Show Cause, stating
reasons why the hearing request was not timely filed. Petitioner’s representative offers
the following reasons why the hearing request was untimely:

(1) Upon review of Subpart A of 42 C.F.R. 498, Petitioner “‘did not find reference
to a response time within that text;”

(2) Petitioner felt that “the verbiage in the title of Subpart B did not seem to
apply,” but admits that, after receipt of the Order to Show Cause, it was evident
that section 498.22 “does indicate response time guidelines;” and

(3) Petitioner “erroneously assumed that an appeal could be filed at any time” and
“(with that in mind .. . put the appeal in a queue to be submitted in order of the
projects . . . in process at that time, rather than expedite it.”

Petitioner’s letter dated July 6, 2010, at 1-2. Petitioner’s representative summarizes that
“[s]imply put, a layman’s interpretation of 42 CFR 498 caused our delayed request.” Jd.

“For good cause shown, the ALJ may extend the time for filing the request for hearing.”
42 C.F.R. 498.40(c)(2). A definition of “good cause” does not exist in the applicable
regulations, and the “[Departmental Appeals] Board [(Board)] has never attempted to
provide an authoritative or complete definition of the term ‘good cause’ in section
498.40(c)(2).” Hillcrest Healthcare, L.L.C., DAB No. 1879, at 5 (2003).

While the Board has never precisely defined the term “good cause,” it is clear to me that
a simple decision to not expedite filing of a request for hearing cannot be a basis for a
good cause determination. I find the assumption that an appeal could be submitted “at
any time” unreasonable. Furthermore, the correct regulatory provision setting the
deadline to request an ALJ hearing on a contractor’s reconsideration determination is not
section 498.22 (which sets procedures for seeking reconsideration by a contractor of an
initial determination of denial or revocation) but rather section 498.40(a)(2), quoted
above. Section 498.40, entitled “Hearings,” is in subpart D. Petitioner’s explanations as
to why he did not know the applicable deadline are not persuasive, because Petitioner
could have learned the deadline by: (1) reading 42 C.F.R. Part 498 in its entirety; (2)
calling the MAC Support Line telephone number listed in the reconsideration decision
letter during the hours specified in the letter; and/or (3) calling the Centers for Medicare
& Medicaid Services, the Civil Remedies Division, or the Board.

I conclude that Petitioner has not demonstrated good cause to grant an extension of time
for filing his request for hearing.
IV. Conclusion

Petitioner did not timely file a request for hearing, and I do not find good cause to justify
extending the time for filing. I therefore, on my own motion, dismiss this case for cause.
42 CFR. § 498.70(c).

/s/
Leslie A. Sussan
Board Member


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Albany Physical Therapy,
(CCN: 09289014100581),
Petitioner
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-506
Decision No. CR2184

Date: July 16, 2010

DECISION REMANDING CASE

I deny the Motion to Dismiss of the Centers for Medicare & Medicaid Services (CMS),
and I remand the case so that either CMS or its contractor, Palmetto GBA (Palmetto),
may develop the record and make a determination based on the facts.

I. Background

By letter dated March 1, 2010, Petitioner, Albany Physical Therapy, appealed the
January 4, 2010 reconsideration decision of Palmetto. Hearing Request (HR).

This case was assigned for hearing and decision to Administrative Law Judge (ALJ)
Alfonso J. Montano. The case was subsequently transferred to me, pursuant to 42 C.F.R.
§ 498.44, which permits a Member of the Departmental Appeals Board (Board) to be
designated to hear appeals taken under Part 498. ALJ Montano issued an order (ALJ
Order) on March 5, 2010, setting out procedures for the appeal.
With its Hearing Request, Petitioner included documents, which it identified as Exhibits
A-N.' (P. Ex. A-N). These consisted of: a copy of the contractor’s January 4, 2010
reconsideration decision; a copy of an executed CMS-855R application, which Petitioner
asserts was sent to Palmetto on January 7, 2009; a summary sheet, dated January 7, 2009,
indicating various forms that Gordon Woon reviewed and/or signed for Albany Physical
Therapy; an executed Office Policy Acknowledgment dated January 7, 2009; an executed
Form W-4 dated January 7, 2009; a facsimile verification indicating that a fax was sent
with a handwritten note noting that the W-4 form was faxed to a bookkeeper on January
7, 2009; a handwritten note setting forth the mailing address for Palmetto GBA with a
note indicating that the author had “NO IDEA what happened to our application that we
sent to this address on 1/7/09?” (emphasis in original); a letter from Petitioner to Palmetto
dated September 11, 2009; a reconsideration request dated September 30, 2009; a
signature page of a CMS-855R application dated September 11, 2009; Petitioner’s
written account of conversations it contends occurred between Petitioner and Palmetto
dated September 11, 2009 and December 7, 2009; an acknowledgement letter from
Palmetto dated September 23, 2009; a letter dated September 30, 2009 from Palmetto to
Petitioner indicating that the effective date for Mr. Woon’s billing privileges for the
Medicare program was August 17, 2009; a letter from Petitioner to Palmetto dated
September 30, 2009; an affidavit of Sherry Jackson dated February 24, 2010; and a copy
of David A. Baker, M.D. et al., DAB CR2035 (2009). CMS did not object to any of
these materials. I therefore admit these documents into evidence for this decision.

Based on an enrollment application that Petitioner submitted, Palmetto assigned an
effective date of August 17, 2009 for the participation in the Medicare program of
Gordon W. Woon, P.T., in an initial approval letter dated September 30, 2009. P. Ex. J.
Petitioner then filed a reconsideration request challenging the effective date Palmetto
provided and requested an effective date of February 9, 2009. P. Exs. H and L. On
January 4, 2010, the Palmetto hearing officer denied Petitioner’s reconsideration request,
citing 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) as the basis of the decision. P. Ex. A.
Petitioner seeks an earlier effective date to bill for Mr. Woon’s services rendered
beginning February 9, 2009.

On March 11, 2010, CMS moved that I dismiss Petitioner’s hearing request. CMS
proffered no exhibits with its Motion to Dismiss. Petitioner responded to the CMS
motion and filed a Countermotion for Summary Judgment on March 31, 2010. Petitioner
proffered one exhibit with its countermotion, marked as P. Ex. 1. CMS has submitted no
documents in this case, apart from its brief Motion to Dismiss. CMS did not respond to

' In addition, Petitioner suggested in its Hearing Request that it intends to ask the
assigned ALJ to issue a subpoena pursuant to 42 C.F.R. § 498.58 for a CMS-855R
application it claims to have filed in January of 2009. However, this office never
received a subpoena request.
Petitioner’s Countermotion for Summary Judgment and, on May 6, 2010, informed this
office that CMS had nothing further to file in this matter.

II. Issues
The issues in this case are as follows:

1. Whether I should dismiss Petitioner’s hearing request on the ground that
it has no right to appeal; and

2. Whether Petitioner is entitled to summary judgment that the CMS
contractor incorrectly determined Gordon W. Woon’s effective date of
enrollment, and Petitioner should receive a new effective enrollment
date for Mr. Woon of February 9, 2009.

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

My findings of fact and conclusions of law are set forth in bold and italics as headings
below following by my supporting analysis.

A, The effective date of a Medicare provider agreement or supplier approval
is an initial determination reviewable in this forum; thus, Petitioner has a
right to a hearing.

1. Applicable Standard

Pursuant to 42 C.F.R. § 498.70(b), I may dismiss a hearing request where a party
requesting a hearing “does not otherwise have a right to a hearing.”

2. Analysis

CMS argues that the Medicare regulations “do not give appeal rights to a Medicare
provider or supplier dissatisfied with the effective date of Medicare enrollment” and that
I must therefore dismiss the appeal. CMS Motion to Dismiss at 2.

In several prior decisions, I have explained why I do not agree with CMS. See Michael
Majette, D.C., DAB CR 2142 (2010); see also Eugene Rubach, M.D., DAB CR2125
(2010); Mobile Vision, Inc., DAB CR2124 (2010). I adopt the reasoning explained in my
prior decisions, which I summarize briefly here.

The wording of section 498.3(b)(15) appears straightforward in providing that the
“effective date of a Medicare provider agreement or supplier approval” is an appealable
initial determination and includes no qualifying or limiting language. None of the
administrative actions identified in section 498.3 as not subject to appeal under Part 498
include the determination of an effective date for a provider or supplier to participate in
Medicare.

While subpart P of part 424 unquestionably does grant appeal rights from denials and
revocations, as CMS notes, it does so by reference to the provisions of subpart A of Part
498, stating that a prospective provider or supplier whose enrollment is denied or revoked
“may appeal CMS’ decision in accordance with part 498, subpart A of this chapter.” 42
C.F.R. § 424.545(a). Subpart A of Part 498 includes section 498.3(b)(15), yet CMS did
not exclude section 498.3(b)(15) or otherwise indicate that effective date determinations
would not be proper subjects for these Medicare hearings. When CMS published subpart
P of Part 424 in 2006 (71 Fed. Reg. 20,753, 20,776 (Apr. 21, 2006)), it was well-aware of
the longstanding provision in section 498.3(b)(15), which it had described in 1997 as
granting “appeal rights and procedures for entities that are dissatisfied with effective date
determinations.” 62 Fed. Reg. 43,931-32 (Aug. 18, 1997). Yet, section 424.545(a)
incorporated section 498.3 without limitation. Hence, the plain language of section
424.545(a) reinforces the plain language of section 498.3(b)(15).

The history of section 498.3(b)(15) shows CMS’s recognition that: (1) approving
participation at a date later than that sought amounts to a denial of participation during
the intervening time; (2) effective date appeals generally involves the same kind of
compliance issues that arise from initial denials; and (3) the right to appeal an effective
date determination, while not previously codified, had already been confirmed by court
decisions. 62 Fed. Reg. at 43,933-34 (final rule); 57 Fed. Reg. 46,362, 46,363 (Oct. 8,
1992) (proposed rule). While rules for determining effective dates adopted at the same
time as section 498.3(b)(15) applied only to providers and suppliers subject to
certification or accreditation, the rulemaking addressing section 498.3(b)(15) contains no
language parallel to that addressing determining effective dates, limiting its application to
only providers and suppliers that are subject to survey and certification or accreditation.
62 Fed. Reg. at 43,934; 57 Fed. Reg. at 46,363.

CMS argues nonetheless that section 498.3(b)(15) is inapplicable here. CMS argues that
this provision is meant to apply only to those suppliers or providers subject to survey and
certification (or accreditation by a CMS-approved accrediting organization) as a basis for
determining their participation in Medicare and whose effective dates are governed by 42
C.F.R. § 489.13, but not to suppliers, such as Petitioner, whose Medicare enrollment is
approved under Part 424, subpart P. CMS points out that section 498.3(b)(15) was
adopted “long before” the Medicare statute was amended (by section 936(a)(2) of the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (codified at
42 U.S.C. § 1395cc(j))) to permit suppliers not subject to survey and certification or
accreditation to appeal denials of applications for enrollment (CMS Motion to Dismiss at
3) and that the regulations in Part 424 implementing the 2003 amendment permit such
suppliers to appeal only denials and revocations of enrollment.

CMS’s argument is not persuasive. A later statute does not elucidate the intended
meaning of a prior regulation, especially one unambiguous on its face. While regulatory
history and other sources of guidance are relevant in interpreting language, which is
ambiguous, unclear in its application, or which leaves gaps, courts do not resort to such
interpretive tools when the wording is clear on its face. See, e.g., Connecticut Nat’! Bank
v. Germain, 503 U.S. 249, 253-54 (1992) (“[T]he ‘cardinal canon’ of construction is that
a statute means what it says and, when unambiguous, ‘this first canon is also the last:
‘judicial inquiry is complete.’”). CMS has not identified in what respect the wording of
section 498.3(b)(15) is ambiguous or unclear, or where the language leaves a gap
requiring interpretation to give it meaning. | thus find little room for the interpretation
CMS advances.

Based on the foregoing, I deny CMS’s Motion to Dismiss.
B. Petitioner is not entitled to summary judgment on the record before me.

1. Applicable Standard

The Board explained the applicable standard for summary judgment as follows:

Summary judgment is appropriate when the record shows that there is no
genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. Kingsville Nursing and Rehabilitation Center,
DAB No. 2234, at 3 (2009), citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-25 (1986). While the Federal Rules of Civil Procedure (FRCP) are not
binding in this administrative appeal, we are guided by those rules and by
judicial decisions on summary judgment in determining whether the ALJ
properly granted summary judgment. See Thelma Walley, DAB No. 1367
(1992). ... The party moving for summary judgment bears the initial
burden of showing that there are no genuine issues of material fact for trial
and that it is entitled to judgment as a matter of law. Kingsville at 3, citing
Celotex, 477 U.S. at 323. If the moving party carries its initial burden, the
non-moving party must “come forward with ‘specific facts showing that
there is a genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986) (quoting FRCP 56(e)). To defeat an
adequately supported summary judgment motion, the non-moving party
may not rely on the denials in its pleadings or briefs, but must furnish
evidence of a dispute concerning a material fact — a fact that, if proven,
would affect the outcome of the case under governing law. Jd. at 586, n.11;
Celotex, 477 U.S. at 322. 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. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010).

2. Analysis

In this appeal, Petitioner argues that it submitted an enrollment application for Gordon
W. Woon in January of 2009, and Mr. Woon commenced employment with Petitioner on
February 9, 2009. HR at 2-3. Petitioner essentially argues that Palmetto lost the
enrollment application submitted in January of 2009 and required Petitioner to submit a
second application in September of 2009. HR. Thus, Petitioner contends that, due to
CMS’s error in instructing Petitioner to resubmit a new enrollment application, Mr.
Woon’s effective date was incorrectly determined.

Petitioner claims that Mr. Woon was to commence employment with Albany Physical
Therapy on February 9, 2009. HR at 1. Petitioner contends that on January 7, 2009 Mr.
Woon met with Sherry Jackson, the Business Manager at Albany Physical Therapy. HR.
At that meeting, Mr. Woon purportedly filled out various documents including a CMS-
855R application. HR at 1; P. Exs. B-F. Petitioner also claims Ms. Jackson contacted
Palmetto’s office and inquired as to where she should mail Mr. Woon’s completed CMS-
855R application. HR at 2. Petitioner contends that Ms. Jackson was told to send the
application to Palmetto at a post office box in Columbus Ohio and that Ms. Jackson noted
the address on a piece of paper which Petitioner also submits. HR at 2; P. Ex. G.

Petitioner further asserts that Mr. Woon commenced employment with Albany Physical
Therapy on February 9, 2009. HR at 2. Petitioner contends that it received uninterrupted
Medicare payments for Mr. Woon through August of 2009. Jd. Then, on September 11,
2009, Petitioner received a claim denial by Medicare for Mr. Woon, and Ms. Jackson
called Palmetto and spoke to a representative. /d. Petitioner contends that the Palmetto
representative informed Ms. Jackson that Palmetto could find no record of a CMS-855R
application for Mr. Woon. /d. Petitioner also claims that the representative “said that the
original filing should have gone to a Palmetto post office box in Augusta, Georgia but
that should not have been a problem as they would normally forward applications sent to
the wrong address to the Georgia address.” Jd. Petitioner claims the Palmetto
representative then “told Ms. Jackson to fill out a new signature page with the current
date and resend the application for Mr. Woon to the Augusta, Georgia address.” Jd. Ms.
Jackson then sent the new application with a cover letter explaining the sequence of
events and asked for an effective date of February 9, 2009. HR at 2; P. Exs. H, I.

By letter dated September 23, 2009, Palmetto acknowledged the “resent” application.
HR at 2; P. Ex. J. Neither party submitted a copy of this application, or any other
evidence, as to the date on which Palmetto received it. On September 30, 2009,
Petitioner was informed that the effective date for Mr. Woon’s Medicare enrollment
application was August 17, 2009. HR at 2; P. Ex. K. Petitioner then filed a
reconsideration request, received an unfavorable determination, and this appeal ensued.
The January 4, 2010 reconsideration decision provides no facts upon which the Palmetto
hearing officer based the decision. The hearing officer states that “[p]er Title 42 CFR

§ 405.874 does not afford a physician or non-physician practitioner with the right to
appeal the effective date made by a Medicare contractor, a physician can always raise
their concerns to the contractor management.” P. Ex. A at 1. The hearing officer then
states that she has nevertheless “reviewed the specific facts associated with your
enrollment application and the effective date established, and unfortunately, we are not
able to make a change to the effective date of filing.” Jd. The only further rationale for
denying a change to the effective date is given as “30 days from the Receipt Date of the
application.” Jd. The decision concludes that “Gordon Woon, PT has not provided
evidence to show you have fully complied with the standards for which your effective
date was established.” Jd. at 2. These comments do not reveal a factual basis to find
when Petitioner’s application was received or do not respond to Petitioner’s argument
that its CMS-855R application was originally sent on January 7, 2009.

Neither the reconsideration decision nor CMS in its Motion to Dismiss provide any
argument or explanation in response to Petitioner’s account of events. CMS offers no
indication of whether it received a CMS-855R application in January of 2009. Although
Petitioner provides a letter from Palmetto dated September 23, 2009 acknowledging
receipt of Petitioner’s application, the letter does not state the actual date of receipt.

P. Ex. J. In its motion to dismiss, CMS states that Palmetto approved Petitioner’s
enrollment application “on or about September 30, 2009.” CMS Motion to Dismiss at 1.
However, CMS also stated that “Palmetto properly awarded enrollment effective April
12, 2009, thirty days prior to the date petitioner’s approvable application was received.”
CMS Motion to Dismiss at 2. Thus, it is unclear when CMS is claiming that Palmetto
actually received Petitioner’s enrollment application and CMS does not provide a copy of
the application that Palmetto received (as it does in many other cases in which each page
of an application shows a stamp with the date and time of receipt).

The date upon which Palmetto received and subsequently approved Petitioner’s
application is integral to the correct determination of Petitioner’s effective date of
Medicare billing privileges. Section 424.520 provides in pertinent part:

(d) Physicians, nonphysician practitioners, and physician and
nonphysician practitioner organizations. The effective date for
billing privileges for physician, nonphysician practitioners, and
physician and nonphysician practitioner organizations is the later
of the date of filing of a Medicare enrollment application that was
subsequently approved by a Medicare contractor or the date an enrolled
physician or nonphysician practitioner first began furnishing services

at a new practice location.

(Emphasis added). The “date of filing” is the date that the Medicare contractor receives a
signed provider enrollment application that the Medicare contractor is able to process to
approval. 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008) (emphasis added).

It is evident that the date that Palmetto assigned as the “effective date,” August 17, 2009,
is not consistent with section 424.520(d), since Palmetto describes it as “30 days from the
Receipt Date of the application.” P. Ex. A at 1. Given the citation to section
424.521(a)(1), I might presume that CMS and Palmetto intended to assign an effective
date based on the receipt date sometime on or prior to September 23, 2009, and then to
grant a 30-day period of retroactive billing as that regulation permitted. However, given
CMS’s failure to document any undisputed date of receipt in this case, its failure to
explain the calculation purported effective date, and the conflicting dates CMS presents
in its briefing, I am unwilling to presume that CMS correctly determined the effective
date for either for Petitioner’s enrollment in the Medicare program pursuant to section
424.520(d), or the date Petitioner could retroactively bill Medicare pursuant to section
424.521(a)(1).

On the other hand, I am unable to conclude that Petitioner’s evidence establishes that it is
entitled to judgment in its favor as a matter of law based on the undisputed facts. CMS
has not placed any of the facts in Petitioner’s account at issue. However, on summary
judgment, I must view the factual evidence in the light most favorable to the non-movant,
here CMS, and draw all reasonable inferences from the evidence in that light. I cannot
therefore assume that Palmetto received a complete and approvable application in
January 2009, even accepting Petitioner’s assertions about having mailed an application
at that time.

Although Petitioner requests an effective date of February 9, 2009, the date Mr. Woon
began providing services at Petitioner’s practice location, the applicable rule quoted
above sets the effective date based on the later of the date of receipt of an enrollment
application or the date services are first provided at a new location. Thus, February 9,
2009, the date Mr. Woon began furnishing services at Albany Physical Therapy, could
only be the basis for Petitioner’s effective date if Petitioner could show that an enrollment
application that was processed to approval was submitted prior to that date. See 42
C.F.R. § 424.520(d).

Thus, in accordance with the above regulations, for me to disturb the effective date
determination and grant Petitioner an effective date of February 9, 2009, Petitioner would
at a minimum have to prove that Palmetto received an enrollment application sometime
before February 9, 2009, which was approvable as submitted.

Petitioner has not proffered evidence that would prove Palmetto received a CMS-855R
mailed by Petitioner in January 2009. The record does not contain any record of the
mailing of Petitioner’s CMS-855R application, even though Petitioner could have sent
the document by certified mail or other trackable system. In an affidavit, Ms. Sherry
Jackson, Petitioner’s billing manager states that “[ml]y only regret is that I did not send
the original application by certified mail.” P. Ex. M at 46. This statement amounts to
recognition that Petitioner could have taken measures within its own control to establish
the date of receipt of its enrollment application and simply failed to do so. Furthermore,
the absence of any acknowledgment of receipt at that time supports an inference that the
application was not received even if it was mailed.

Without proof of an earlier date of filing, I do not have the authority to change the
effective date in this matter. Thus, I conclude that Petitioner has not established that it is
entitled to summary judgment by law, and Petitioner’s request for an effective date of
enrollment of February 9, 2009 must be denied.

C. Dismissal without prejudice and remand is appropriate action based on
the record before me.

As I have noted, neither the reconsideration decision nor CMS in its motion to dismiss
provides any argument or explanation at all in response to Petitioner’s account of events
or provides a factual basis to support a specific effective date. This silence leaves me
without the benefit of CMS’s reasoning as to the legal significance of Petitioner’s
account. Given the cryptic and sparse reconsideration decision, record and pleadings, I
do not find the written record adequate to support a final decision on the merits. Also,
without the benefit of evidence or explanation as to the contractor’s receipt and
processing of the application(s) in this case, I will not make findings of fact.

Pursuant to 42 C.F.R. § 498.78(b), I may remand “at any time before notice of hearing
decision is mailed.” I therefore dismiss without prejudice and remand the matter to CMS
so that CMS or its contractor may review all relevant files and materials and issue a new
determination addressing the facts. Petitioner may file a new request for hearing before
me if the decision on remand is unfavorable.

/s/
Leslie A. Sussan
Board Member


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Judith A. Kramer, M.D.,

Petitioner
Vv.

Centers for Medicare & Medicaid Services.
Docket No. C-10-397
Decision No. CR2183

Date: July 14, 2010

DECISION

I grant the motion of the Centers for Medicare & Medicaid Services (CMS) for summary
judgment and sustain its determination setting the effective date of Petitioner’s, Judith A.
Kramer, M.D., enrollment in Medicare as August 17, 2009, with billing privileges
retroactive for 30 days to July 18, 2009.

I. Background

Petitioner seeks billing privileges effective May 1, 2009, when she began seeing patients
as a new member of Partners in Internal Medicine, LLP (Partners). CMS Ex. 7, at 1-4.
By letter dated September 2, 2009, National Government Services (NGS), a CMS
contractor, enrolled Petitioner as a “Group Member” of Partners, with an effective date of
July 19, 2009.' CMS Ex. 6. The letter does not state the basis of that effective date
determination and provides no appeal rights.

' The NGS letter also approved Partners’ Medicare enrollment with an effective date of
December 28, 1989, which is consistent with Petitioner’s description of Partners as a
longstanding medical practice. CMS Ex. 6; CMS Ex. 7, at 1.
2

By letter of October 6, 2009, Petitioner and Partners’ practice manager requested that
NGS “backdate” Petitioner’s effective date to May 1, 2009. CMS Ex. 7, at 1-2. They
stated that they began enrolling Petitioner as a Partner’s practitioner sometime in March
2009, when Petitioner accepted a position with Partners, and were told by Medicare that
Petitioner “did not need to apply as a new physician,” because she was “already
participating” with Medicare. Jd. at 1. In response, NGC issued a reconsideration
decision dated November 30, 2009, denying the request but adjusting the effective date of
Petitioner’s billing privileges from July 19 to July 17, 2009, on the ground that NGS had
received Petitioner’s approved application on August 17, 2009.2 CMS Ex. 8. NGS cited
42 C.F.R. §§ 424.520(d) and 424.521(a) as providing that “the effective date can be up to
30 days prior to the date of filing the Medicare enrollment applications. Therefore, 30
days prior to the receipt date of August 17, 2009 is July 17, 2009.” Jd. at 2. Before me,
owever, CMS states that Petitioner’s billing privileges began July 18, 2009, which, as
CMS correctly notes, is 30 days prior to August 17, 2009. CMS Br. at 5 n.2.3

Petitioner filed a timely hearing request (HR), in which she seeks billing privileges
beginning May 1, 2009 and states that the process of enrolling as a practitioner for
Partners “has been unduly challenging, involved multiple different Medicare contacts
with no seeming accountability, and has resulted in denial of payment for my primary
care services for Medicare patients.” HR. This case was originally assigned to
Administrative Law Judge (ALJ) Carolyn Cozad Hughes. On February 24, 2010, ALJ
Hughes issued an Acknowledgment and Initial Pre-Hearing Order (Pre-Hearing Order),
setting a schedule for briefing the appeal. The case was transferred to me for hearing and
decision on March 23, 2010, pursuant to 42 C.F.R. § 498.44, which permits a Member of
the Departmental Appeals Board (Board) to be designated to hear appeals taken under
Part 498. In a submission dated March 26, 2010, CMS filed a brief containing its motion
‘or summary judgment and submitted its exhibits | through 10. On May 21, 2010,
Petitioner’s representative stated that Petitioner had already submitted all information
with the hearing request and would not file a response to CMS’s brief.

> Although the NGS determination letter dated September 2, 2009 provided no notice of
Petitioner’s right to appeal NGS’s effective date determination, CMS does not argue, as it
has in other cases, that Petitioner has no right to challenge the effective date
determination. See, e.g., Michael Majette, D.C., DAB CR 2142 (2010); Eugene Rubach,
M.D., DAB CR2125 (2010); Mobile Vision, Inc., DAB CR2124 (2010).

> As CMS points out, under section 424.520(d), Petitioner’s actual enrollment date was
August 17, 2009, the date that NGS received the application it approved. Under 42
C.F.R. § 424.521(a), Petitioner was permitted to bill retroactively for 30 days prior to the
effective date of her enrollment. CMS Br. at 5 n.2. NGS’s use of the term “effective
date” to refer to the earliest date for which retroactive billing is permitted (as well as its
numerical error) created some confusion. In granting summary judgment to CMS, I
uphold the dates as CMS corrected in its briefing.
With the hearing request, Petitioner submitted twelve pages of documents not numbered
as exhibits. I assign the following exhibit numbers to those documents: an October 6,
2009 letter from Petitioner and the Partners’ office manager to NGS requesting the ability
to bill Medicare beginning May 1, 2009 (P. Ex. 1; 2 pages); a Partners’ “charge
summary” listing charges for services that Petitioner apparently rendered to eight
individuals during the period of May | though July 18, 2009 (P. Ex. 2, 1 page); a web
page printout, dated April 8, 2009, reflecting receipt and processing of an unidentified
request from Partners by the CMS “PECOS” system (P. Ex. 3, 1 page);* a May 22, 2009
fax to Partners from the Internal Revenue Service (IRS) providing Partners’ Employer
Identification Number (P. Ex. 4; 1 page); a “National Provider Identifier (NPI)
Application/Update Form” from Partners dated June 22, 2009 and an envelope addressed
to “NPI Enumerator” and postmarked June 24, 2009 (P. Ex. 5; 4 pages); a July 15, 2009
letter from CMS returning to Partners its application “to either establish or update
information in the National Plan & Provider Enumeration System,” because “[t]he
signature in Section 4A (Individual Practitioner’s Signature) or Section 4B (Authorized
Official’s Information and Signature) is a non-original signature” (P. Ex. 6; 2 pages); and
a fax cover sheet, dated October 7, 2009, reflecting the submission of 13 pages to the
NGS provider enrollment specialist who rendered NGS’s November 30, 2009
reconsideration decision (P. Ex. 7; 1 page; see CMS Ex. 8 (reconsideration decision)).
All of these materials, except for Petitioner’s Exhibit 2, are also included among CMS’s
exhibits.

Absent any objection to the admission of any exhibits, or any indication from CMS that
Petitioner’s Exhibit 2 constitutes new documentary evidence, the admission of which is
limited by 42 C.F.R. § 498.56(e), I admit both parties’ exhibits.
Il. Issues, Findings of Fact, Conclusions of Law

A. Issue
The issue in this case is whether CMS is entitled to summary disposition on the ground
that undisputed facts demonstrate that CMS properly determined the effective date of
Petitioner’s enrollment in Medicare.

B. Findings of Fact and Conclusions of Law

I grant CMS summary disposition on the ground that it properly determined the
effective date of Petitioner's participation in Medicare.

+ “PECOS” is the “Provider Enrollment, Chain and Ownership System,” a “[w]eb-based
enrollment process, which is based off of the information collected on the CMS-855
forms.” CMS Medicare Program Integrity Manual (MPIM), ch. 10, § 1.2.
a. Applicable Regulations

The determination of the effective date of Medicare enrollment and the commencement
of the ability to bill Medicare are governed by 42 C.F.R. §§ 424.520 and 424.521.
Section 424.520(d) provides that the effective date for billing privileges for physician,
nonphysician practitioners, and physician and nonphysician practitioner organizations is
“the later of the date of filing of a Medicare enrollment application that was subsequently
approved by a Medicare contractor or the date an enrolled physician or nonphysician
practitioner first began furnishing services at a new practice location.” (Emphasis
added). The “date of filing” is “the date that the Medicare contractor receives a signed
provider enrollment application that the Medicare contractor is able to process to
approval.” 73 Fed. Reg. 69,769 (Nov. 19, 2008) (emphasis added). Certain suppliers,
including physicians, may be permitted to bill retrospectively for certain services
provided before the effective date of approval of their enrollment application, if they have
met all program requirements. Current regulations limit retrospective billing to 30 days
prior to the effective date, “if circumstances precluded enrollment in advance of
providing services to Medicare beneficiaries,” or 90 days in the event of certain
Presidentially-declared disaster situations. 42 C.F.R. § 424.521 (a).

b. Parties’ Arguments

Petitioner’s hearing request refers to the October 6, 2009 letter to NGS from her and
Partners’ practice manager for a description of “the extensive process” Partners engaged
in to “add a new address to my already existing credentialing with Medicare at the time I
started seeing patients” with Partners. HR; see CMS Ex. 7, at 1-2 (letter Oct. 6, 2009).
In that letter, the practice manager states that she called Medicare in April 2009 and was
told that Petitioner “did not need to apply as a new physician,” because she was already
participating with Medicare. Jd. The practice manager also states that Partners were told
to “add a new location” for Petitioner at a Medicare web site and that attempts of
Partners’ biller to do so in April “ended up in a series of requests from your [Medicare]
office and things going wrong every step of the way.” Jd. The practice manager further
describes efforts to obtain for Medicare a federal tax coupon bearing Partners’ correct
name.

The practice manager goes on to state in the October 6, 2009 letter that Partners was then
told to fill out “an NPI application/update form, which we filled out, signed and mailed
on 6/24/09,” but that the form was returned, because the signature page was missing, and
“we had to re-mail the application immediately upon your request (7/9/09).” Id. The
letter reports that further phone calls resulted in the “new information . . . that a full
application needed to be filled out and submitted and it could only be backdated 30 days”
due to “the 30 day rule [that] went into effect on 4/1/09 and was not posted till 4/21/09
....” Id. Finally, it states that following “[n]ew requests from [the] enrollment office
5

[for] forms CMS 855R, 855B and 588 in early August,” Partners submitted the
application for Petitioner that NGS approved.° Jd.

With the October 6, 2009 letter is a 2-page handwritten statement from Partner’s biller.
CMS Ex. 7, at 3-4. She states that, on April 8, 2009, Partners applied online at the
PECOS website and were told by “ext. user services” that they had to submit an IRS
document with their official name, and she describes delays in obtaining from IRS a copy
of the document bearing Partners’ correct name. CMS Ex. 7, at 3-4. She describes
further delays caused by difficulty in accessing the NPI website, because she was not an
authorized user and states that a paper application Partners subsequently submitted was
returned twice for missing information. Id.

CMS disputes that an application for Petitioner was submitted in April or June 2009.
CMS states that what Partners filed at those times, first online and then by mail, was an
NPI “Application/Update Form” for Partners, for “the purpose of changing and/or
replacing information related to the group entity” and “was unrelated to Petitioner’s
enrollment application.” CMS Br. at 8. CMS states that the submission of this NPI
Application “was separate and apart from the actions of Petitioner to reassign benefits to
the practice, via enrollment applications CMS 855I and CMS 855R.”° Id. CMS states
that the applications required “to change her enrollment information and reassign her
benefits to Partners,” CMS forms 855I and 855R, were submitted online via PECOS on
August 12, 2009 but “were not considered submitted by NGS until it received the Web
Certifications Statements containing Petitioner[’s] original signature on August 17,
2009.” Id. at 4, 8, citing CMS Exs. 2, 3.

c. Applicable Standard
The Board stated the standard for summary judgment as follows.

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

> The CMS 855B is for a supplier organization that will bill Medicare for Part B services
furnished to Medicare beneficiaries. The CMS 855R is the application for an individual
who renders Medicare services to reassign his or her benefits to an eligible entity, such as
a supplier organization. The CMS 5838 is an Electronic Funds Transfer agreement.
MPIM, ch. 10, § 1.2

° The CMS 855] application is for individual practitioners, including physicians, who
render Medicare services. Jd.
6

the non-moving party may not rely on the denials in its pleadings or briefs,
but must furnish evidence of a dispute concerning a material fact — a fact
that, if proven, would affect the outcome of the case under governing

law. . .. In determining whether there are genuine issues of material fact for
trial, the reviewer must view the evidence in the light most favorable to the
non-moving party, drawing all reasonable inferences in that party’s favor.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations

omitted). The role of an ALJ in deciding a summary judgment motion differs from the
ALJ’s role in resolving a case after a hearing. The ALJ should not assess credibility or
evaluate the weight of conflicting evidence. Holy Cross Vill. at Notre Dame, DAB No.
2291, at 4-5 (2009).

d. Analysis

The date of Petitioner’s enrollment to provide Medicare services at Partners is fixed by
regulation as the date NGS received the application it subsequently approved for
Petitioner to provide services at Partners (or, the date Petitioner began providing those
services for Partners, had it been later, which was not the case). 42 C.F.R. §§ 424.520(d),
424.521(a). The undisputed evidence and CMS’s unchallenged statements indicate that
this application comprised the forms that Petitioner and Partners submitted in August
2009 to enroll Petitioner as a supplier with Partners and to assign her Medicare benefits
to Partners and that NGS received these forms, with the appropriate signature, on August
17, 2010.

The evidence reflects that the earliest filing with NGS that specifically mentions
Petitioner (as opposed to simply Partners) consists of a PECOS “application data report”
of an application to enroll Petitioner and reassign her benefits to Partners, and two
“PECOS Web Certification Statements,” one for form 855], that Petitioner signed on
August 12, 2009, and one for form 855R, that Petitioner signed on August 12, 2009 and
Partners’ “Authorized or Delegated Official” signed on August 14, 2009. CMS Ex. 2.
CMS states that NGS received the signed certification statements on August 17, 2009, as
indicated by a Julian-format date stamp on the statements; additionally, a “PECOS screen
print” indicates that a form 8551 for Petitioner submitted via the web was received on
August 12, 2009, with a “certification date” of August 17, 2009. CMS Br. at 4, 7 n.4;
CMS Ex. 3. The date NGS received Petitioner’s signature is critical, as the “date of
filing” to determine the effective date is “the date that the Medicare contractor receives a
signed provider enrollment application that the Medicare contractor is able to process to
approval.” 73 Fed. Reg. at 69,769 (emphasis added).

Petitioner declined the opportunity to respond to CMS’s brief and motion and did not
dispute CMS’s description of the evidence. Petitioner also did not dispute CMS’s report
that: (1) the signed forms necessary to complete Petitioner’s application were received
August 17, 2009; and (2) the forms Partners filed during April and June 2009 were NPI
update forms for Partners that were not related to the enrollment of Petitioner.
7

Indeed, all materials in record dated prior to August 2009, including the form updating
Partners’ NPI information, relate to Partners only and contain no reference to Petitioner.
See CMS Ex. 10; P. Exs. 5, 6. During August 2009, around the same time that Partner
submitted the forms 855] and 855R to enroll Petitioner as a physician with Partners and
assign her benefits to that practice, Partners also filed a CMS 855B revalidating its own
enrollment. This form, dated August 13, 2009, also does not mention Petitioner.’ CMS
Br. at 4; CMS Ex. 4.

Given this record, and absent any dispute with CMS’s representation in its brief that
Petitioner’s application for enrollment as a physician with Partners was received August
7, 2009, or any proffer of evidence showing an earlier date of receipt, I conclude that no
dispute of any material fact exists and that CMS is entitled to summary judgment on the
ground that the effective date of Medicare enrollment is August 17, 2009 as a matter of
law. CMS also properly granted a 30-day period of retrospective billing as the
regulations authorized.

That Petitioner began providing Medicare services with Partners on May 1, 2009, which
CMS does not dispute, does not authorize me to grant Medicare billing privileges
beginning on that date. The regulations set the effective date as the date of receipt of
Petitioner’s approved application and limit retrospective billing privileges to the 30-day
period that was granted here (no indication exists that the provision authorizing a 90-day
period in the case of certain Presidentially-declared disasters applies here). No
regulations currently authorize me to consider challenges to the period for retroactive
billing beyond hearing an appeal that the effective date of approval itself was wrongly
determined. Furthermore, the regulation at section 424.521(a) binds me. I can neither
alter nor deviate from its explicit limitation on retroactive billing to the 30 days already
granted to Petitioner. Thus, I have no authority to extend the retroactive billing period
for Petitioner. For these reasons, the Partners “charge summary” that Petitioner
submitted listing charges for services she rendered at Partners for the period of May 1
through July 18, 2009 (P. Ex. 2) is not material.

I note that previous regulations did authorize CMS to grant physician suppliers up to 27
months of retroactive billing privileges; however, that provision and the authority it
provided were eliminated when the current regulations became effective on January 1,
2009 (and not on April 1 or 21, 2009, as the practice manager reported being told). 73
Fed. Reg. at 69,726, 69,940; CMS Ex. 1, at 1-2. As physicians previously could be
permitted to bill Medicare up to 27 months prior to the effective date of Medicare
enrollment, issues relating to the effective dates of their enrollments were unlikely to
arise. With the shorter time frame for retrospective billing, the applicable effective date

7 Presumably, it was in response to this CMS 855B from Partners that NGS, in its
September 2, letter, approved Partners’ Medicare enrollment with an effective date of
December 28, 1989. CMS Ex. 6.
8

‘as obviously become more important. The law as to when approval is effective,
owever, links the commencement of that shortened period of retrospective billing to the
receipt of the approved application.

The practice manager’s report in the October 2, 2009 letter that she was told, presumably
by someone at NGS, that Petitioner did not need to apply as a new physician, because she
was already participating with Medicare, does not provide any basis for me to grant an
earlier enrollment date. CMS Ex. 7, at 1-2. For one thing, the practice manager reported
also being told, correctly, of the need to “add a new location” for Petitioner; that is, enroll
er as a physician practicing with Partners. Jd. at 1. While she states that such efforts
were made, no documentation exists of any submissions to NGS from Partners that
mentioned Petitioner, prior to the forms submitted online in August 2009. For another
thing, the information was correct in that, while Petitioner was not a “new” Medicare
physician, she still needed to fill an application to reassign her payments to the new
practice group.

Even had NGS given incorrect advice to Petitioner, that would not permit me to grant an
earlier effective date. Estoppel against the federal government, if available at all, is
presumably unavailable absent “affirmative misconduct,” such as fraud. 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). None of the circumstances they describe fit that
standard. The frustration that Petitioner and the practice manager describe does not
permit me to ignore the unmistakable requirements of the regulations governing his
enrollment in Medicare, by which I am bound.

II, Conclusion

Because no genuine issue to any material fact exists, and for the foregoing reasons, I
grant CMS’s motion for summary disposition and sustain its determination setting the
effective date of Petitioner’s Medicare enrollment as August 17, 2009, with a
retrospective billing period beginning July 18, 2009.

/s/
Leslie A. Sussan
Board Member


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Peter Nji Igwacho
Petitioner
Vv.
The Inspector General.
Docket No. C-10-157
Decision No. CR2182

Date: July 13, 2010

DECISION

Petitioner, Peter Nji Igwacho, is excluded 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)), effective October 20, 2009, based upon his conviction
of a criminal offense related to the delivery of an item or service under Medicare or a
state health care program. A proper basis for exclusion exists. Petitioner’s exclusion for
the minimum period' of five years is mandatory pursuant to section 1128(c)(3)(B) of the
Act (42 U.S.C. § 1320a-7(c)(3)(B)).

I. Background

The Inspector General for the Department of Health and Human Services (1.G.) notified
Petitioner by letter dated September 30, 2009, that he was being excluded from

participation in Medicare, Medicaid, and all federal health care programs for a period of
five years, the minimum statutory period. The I.G. advised Petitioner that he was being

' Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after
the period of exclusion expires. Reinstatement is not automatic upon completion of the
period of exclusion.
excluded pursuant to section 1128(a)(1) of the Act based on his conviction in the State of
Minnesota, County of Ramsey, Second Judicial District, 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 by letter dated October 18, 2009. The case was
assigned to me for hearing and decision on November 30, 2009. A prehearing telephone
conference was convened on January 27, 2010, the substance of which is memorialized in
my order dated January 29, 2010. During the prehearing conference, Petitioner was
advised of his right to counsel but elected to proceed pro se. Petitioner declined to waive
an oral hearing, and the I.G. requested to file a motion for summary judgment.
Accordingly, I set a briefing schedule for the parties.

The I.G. filed a motion for summary judgment and a supporting brief (1.G. Brief) on
March 15, 2010, with I.G. exhibits (I.G. Exs.) 1 through 6. Petitioner filed a brief in
opposition to the I.G. motion on May 1, 2010 (P. Brief), with Petitioner’s exhibits (P.
Exs.) 1 through 8. The LG. filed a reply brief on May 19, 2010. The I.G. did not object
to P. Exs. | through 8, and they are admitted as evidence. Petitioner objected to my
consideration of I.G. Ex. 2, page 1, which is the first page of his request for hearing.
Petitioner’s objection is sustained, but as to all three pages of L.G. Ex. 2. Petitioner’s
request for hearing sets forth the basis for Petitioner’s challenge to his exclusion and
serves to define the issues that I must decide. Petitioner’s request for hearing is not
relevant as evidence in this case. Accordingly, I.G. Ex. 2 is not admitted as evidence. I
note that Petitioner offered a copy of his request for hearing as P. Ex. 7, which I have
admitted, and exclusion of I.G. Ex. 2, on grounds that it is cumulative, is also appropriate.
Petitioner’s objections to I.G. Ex. 3, pages 1, 6, 15, and 16, and I.G. Ex. 4, page 5 are
overruled. Petitioner does not object to the authenticity or relevancy of I.G. Ex. 3, pages
1, 6, 15, and 16, or to L.G. Ex. 4, page 5. Petitioner’s objections go to the weight that I
should accord to the exhibits and not their admissibility. Accordingly the objections are
overruled. I.G. Exs. 1 and 3 through 6 are admitted and considered as evidence.

II. Discussion
A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner’s rights to a
hearing by an administrative law judge (ALJ) and judicial review of the final action of
the Secretary of the Department of Health and Human Services (the Secretary).

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation
in the Medicare and Medicaid programs any individual convicted of a criminal offense
related to the delivery of an item or service under Medicare or a state health care
program. Pursuant to section 1128(i) of the Act, an individual is convicted of a criminal
offense when: (1) a judgment of conviction has been entered against him or her in a
federal, state, or local court, whether an appeal is pending or the record of the conviction
is expunged; (2) a court finds guilt; (3) a court accepts a plea of guilty or no contest; or
(4) the individual has entered into any arrangement or program where judgment of
conviction is withheld.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section
1128(a) of the Act shall be for a minimum period of five years. Pursuant to

42 C.F.R. § 1001.102(b), the period of exclusion may be extended based on the presence
of specified aggravating factors. Only if the aggravating factors justify an exclusion of
longer than five years are mitigating factors considered as a basis for reducing the period
of exclusion to no less than five years. 42 C.F.R. § 1001.102(c). The LG. cites no
aggravating factors in this case, and the I.G. does not propose to exclude Petitioner for
more than the minimum period of five years.

B. Issue
The Secretary has by regulation limited my scope of review to two issues:
Whether there is a basis for the imposition of the exclusion; and
Whether the length of the exclusion is unreasonable.
42 C.F.R. § 1001.2007(a)(1).
C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the pertinent findings of fact and
analysis.

1. Petitioner’s request for hearing was timely, and I have jurisdiction.
2. Summary judgment is appropriate in this case.
There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to
reasonable notice and an opportunity for a hearing. The right to hearing before an ALJ is
accorded to a sanctioned party by 42 C.F.R. § 1005.2, and 42 C.F.R. § 1005.3 specifies
the rights of both the sanctioned party and the LG. to participate in a hearing. Either or
both parties may choose to waive appearance at an oral hearing and to submit only
documentary evidence and written argument for my consideration. 42 C.F.R. §
1005.6(b)(5). An ALJ may also resolve a case, in whole or in part, by summary
judgment. 42 C.F.R. § 1005.4(b)(12). Summary judgment is appropriate, and no hearing
is required where either: (1) no disputed issues of material fact exist and the only
questions that must be decided involve application of law to the undisputed facts; or (2)
the moving party prevails as a matter of law, even if all disputed facts are resolved in
avor of the party against whom the motion is made. A party opposing summary
judgment must allege facts, which, if true, would refute the facts that the moving party
relied upon. See, e.g., Fed. R. Civ. P. 56(c); Garden City Med. Clinic, DAB No. 1763
(2001); Everett Rehab. and Med. Ctr., DAB No. 1628, at 3 (1997) (holding in-person
earing required where non-movant shows material facts are in dispute that require
testimony); Thelma Walley, DAB No. 1367 (1992); see also New Millennium CMHC,
DAB CR672 (2000); New Life Plus Ctr., DAB CR700 (2000).

There are no genuine issues of material fact in dispute in this case. There is no dispute
that Petitioner was convicted of a criminal offense related to the delivery of an item or
service under Medicare or a state health care program and sentenced as described
ereafter. The issues that Petitioner raised must be resolved against him as a matter of
law. Accordingly, summary judgment is appropriate.

3. There is a basis to exclude Petitioner pursuant to section 1128(a)(1)
of the Act.

On July 23, 2007, Petitioner was charged in the Ramsey County District Court with two
felony counts of theft by false representation. Count 1 alleged that between July 1, 2002
and December 17, 2002, Petitioner, d/b/a Prestigious Care and Handicap Ride, obtained
by false representation in excess of $2,500 from the Minnesota Department of Human
Services as Medicaid reimbursement for transportation services not rendered. Count 2
alleged that between January 14, 2003 and June 30, 2003, Petitioner, d/b/a Prestigious
Care and Handicap Ride, obtained by false representation in excess of $2,500 from the
Minnesota Department of Human Services as Medicaid reimbursement for transportation
services not rendered. I.G. Ex. 4, at 13-14. On February 19, 2009, Petitioner executed a
“Petition to Enter Plea of Guilty in a Felony Case Pursuant to Rule 15,” in which
Petitioner offered to plead guilty to theft of more than $2,500 from Minnesota Medicaid
by false representation from about July 1, 2002 to June 30, 2003. Petitioner’s offer to
plead guilty was in exchange for a sentence limitation. I.G. Ex. 5. Petitioner was
convicted pursuant to his guilty plea on February 19, 2009. I.G. Ex. 6. On April 10,
2009, an amended complaint was filed that was consistent with Petitioner’s offer to plead
guilty. LG. Ex. 3. Petitioner was sentenced on April 10, 2009: (1) to ten years
probation; (2) to pay the Minnesota Medicaid program restitution in the amount of
$40,000; (3) to pay a $100 fine; and (3) to serve three days in the county jail. I.G. Ex. 6.
It is undisputed that the I.G. notified Petitioner that he was being excluded on September
30, 2009.

The L.G. cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory
exclusion. The statute provides:
(a) MANDATORY EXCLUSION. The Secretary shall
exclude the following individuals and entities from
participation in any Federal health care program (as defined
in section 1128B(f)):

(1) Conviction of program-related crimes. Any
individual or entity that has been convicted of a
criminal offense related to the delivery of an item or
service under title XVIII or under any State health care
program.

The statute requires that the Secretary exclude from participation in Medicare or
Medicaid any individual or entity: (1) convicted of a criminal offense; (2) where the
offense is related to the delivery of an item or service; and (3) the delivery of the item or
service was under Medicare or a state health care program.

Petitioner does not dispute that he was convicted of a criminal offense within the
meaning of section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)). Pursuant to section
1128(i) of the Act, an individual is “convicted” of a criminal offense when: a judgment
of conviction has been entered by a federal, state, or local court whether or not an appeal
is pending or the record has been expunged; there has been a finding of guilt in a federal,
state, or local court; a plea of guilty or no contest has been accepted in a federal, state, or
local court; or an accused individual enters a first offender program, deferred
adjudication program, or other arrangement where a judgment of conviction has been
withheld. Petitioner was clearly convicted within the meaning of section 1128 of the Act
when the Ramsey County District Court, Minnesota, accepted his guilty plea.

Petitioner argues that he entered an “Alford plea” and, by doing so, maintained his
innocence in this matter. P. Brief at 2. An “Alford plea” is, in short, one by which a
defendant does not admit guilt but concedes that the prosecutor has sufficient evidence to
obtain a conviction. North Carolina v. Alford, 400 U.S. 25, 35-38 (1970). Petitioner’s
offer to plead guilty does not reflect on its face that it was an “Alford plea.” I.G. Ex. 5.
Paragraph 25 of the offer states “I now make no claim that I am innocent.” I.G. Ex. 5.
Petitioner’s agreement to such language is inconsistent with an “Alford plea” but is
consistent with a confession of guilt. Furthermore, even if Petitioner’s plea was an
“Alford plea,”” such a plea is tantamount to a plea of no contest, which, if accepted by the

* Paragraph 4 of the Petition to Enter Plea of Guilty in a Felony Case Pursuant to Rule
15, includes some handwriting that appears to include the words “Alfred” and “Plea.”
1.G. Ex. 5, at 1. It is not necessary in this case to resolve whether Petitioner’s guilty plea
was treated by the court that accepted the plea as an Alford plea or not.

court, is a conviction within the meaning of section 1128(i) of the Act. Charles W.
Wheeler and Joan K. Todd, DAB No. 1123 (1990).

The offense of which Petitioner was convicted is an offense related to the delivery of an
item or service under the Minnesota Medicaid program. Petitioner pled guilty to theft by
false representation of more than $2,500 from the Minnesota Department of Human
Services as Medicaid reimbursement for transportation services not rendered.? I.G. Exs.
3,4. The facts of this case show that a nexus or common-sense connection exists
between Petitioner’s crime and the Medicaid program. Berton Siegel, D.O., DAB No.
1467 (1994); Thelma Walley, DAB No. 1367 (1992). The fact that Petitioner agreed to
pay restitution to the Minnesota Medicaid program and that the court ordered such
restitution further supports my conclusion that Petitioner’s offense was related to the
delivery of an item or service under Medicaid.

Petitioner argues that, after an audit in 2003, he was warned that he must keep proper
documentation for future claims. He was referred to various chapters of the Minnesota
ealth care manual, but he was told no civil money penalties would be imposed. He
states that he immediately terminated his services with Minnesota Medicaid. He argues
that revisiting the matter and excluding him in 2009 is “irrational” and with the intent to
prevent him from obtaining a license as a psychological associate. Petitioner argues that
the investigators had an incorrect driver’s license number in the criminal complaint and
investigation. He argues that the Medicaid fraud control unit investigations were not
completed until 2007 and for purposes of preventing him from writing his psychology
examinations. He argues that the delay cannot be substantiated, by which I infer he
means justified. Petitioner argues that the delay in his prosecution resulted in violation of
his due process rights. He argues that the delay from 2001 until 2009 is unreasonable,
inexcusable, and prejudicial. Petitioner also argues that he reentered the United States on
or about December 8, 2008, but that his passport was not stamped, and, therefore, he is
not properly in the United States and not subject to judgment. He argues that Prestigious
Care claims were submitted through an electronic software program, and there was no
provision for him to submit additional documentation of his claims; however, he kept a
personal diary. He also argues that the van used was the van of Prestigious Care that was
registered in Minnesota to provide medical transportation services. Petitioner also argues
that his driver’s license number was DL I-220-680-63 1-098, not DL I-200-680-63 1-098.
P. Brief at 2-3; Request for Hearing; P. Exs. 1-8.

> The charge to which Petitioner pled guilty alleged that he obtained Medicaid
reimbursement while doing business as Prestigious Care and Handicap Ride, Inc. 1.G.
Exs. 3, 4. Petitioner concedes that Prestigious was a medical transportation service that
he operated in Minnesota between 2001 and 2003. P. Brief at 2.
Petitioner’s arguments attack the basis for his conviction. Under the regulations,
Petitioner’s underlying conviction is not reviewable or subject to collateral attack before
me, whether on substantive or procedural grounds. 42 C.F.R. § 1001.2007(d). Thus, I
may not consider Petitioner’s arguments attacking his conviction, including the argument
that he was denied due process by the criminal proceedings. Petitioner’s arguments may
also be construed to be that the I.G. unreasonably delayed the exclusion action against
im. However, Petitioner’s conviction occurred on February 19, 2009, and the LG.
notified Petitioner of the exclusion based on the conviction on September 30, 2009. I do
not find it unreasonable or prejudicial that the I.G. exclusion occurred just seven months
after Petitioner’s conviction. I also conclude that Petitioner has not been denied due
process in the exclusion proceeding. The I.G. provided Petitioner the required notice.
Petitioner filed a timely request for a hearing. I have reviewed Petitioner’s case, and I
issue this decision based on my evaluation of the evidence and the arguments of the
parties. Petitioner has received all the process due him in this proceeding.

I conclude that a basis exists for Petitioner’s exclusion, and section 1128(a)(1) of the Act
mandated his exclusion.

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

5. Petitioner’s exclusion for five years is not unreasonable as a matter
of law.

Five years is the minimum authorized period for a mandatory exclusion pursuant to
section 1128(a). Act § 1128(c)(3)(B). Ihave found a basis for Petitioner’s exclusion
pursuant to section 1128(a) of the Act, and the minimum period of exclusion is five years
and not unreasonable as a matter of law.

II. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare,
Medicaid, and all federal health care programs for the minimum statutory period of five
years effective October 20, 2009.

/s/
Keith W. Sickendick
Administrative Law Judge