Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Bedford Care Center - Monroe Hall, LLC
(CCN: 25-5297),

Petitioner
Vv.

Centers for Medicare and Medicaid Services.
Docket No. C-09-397
Decision No. CR2229

Date: August 30, 2010

DECISION

I find that Bedford Care Center — Monroe Hall (Petitioner) was not in substantial
compliance with 42 C.F.R. § 483.25(h) by failing to provide a severely cognitively-
impaired resident (Resident 1) with adequate supervision to prevent her elopement from
the facility. I also sustain as reasonable the Centers for Medicare and Medicaid Services
(CMS) imposition of civil money penalties (CMP) of $3,550 per day from January 20
through January 28, 2009 and $100 per day for January 29, 2009 for one day of non-
compliance.

I. Background

Petitioner participates in the Medicare and Medicaid programs pursuant to sections 1819,
1919 and 1866 of the Social Security Act (Act) and by its implementing regulations at 42
C.F.R. Parts 483 and 488. Its right to a hearing in this case is governed by regulations at
42 CFR. Part 498.
On January 29, 2009, the Mississippi State Department of Health (the state survey
agency) conducted a complaint survey and found Petitioner was not in substantial
compliance with Tag F323 — accidents and supervision under the quality of care
regulation at 42 C.F.R. § 483.25(h). CMS Ex. 3. The state survey agency determined
that Petitioner failed to ensure adequate supervision for Resident | to prevent her from
leaving the facility on January 20, 2009 at 9:22 p.m. without supervision even though the
Resident had a history of wandering and was wearing a wander-alert watch. The staff
was not aware of the whereabouts of Resident 1 until 11 p.m. when she was found in a
nearby trailer park. CMS Ex. 1. Based on the survey finding, CMS notified Petitioner
that this incident constituted immediate jeopardy to residents’ health and safety and
demonstrated substandard quality of care. CMS imposed a CMP in the amount of $3,550
per day for the period of January 20 through January 28, 2009 and $100 for one day of
substantial noncompliance on January 29, 2009. CMS Ex. 2.

I conducted a hearing November 16-17, 2009; the parties received a transcript (Tr.) of the
proceeding. CMS offered and I admitted CMS Exhibits (CMS Exs.) 1-36. Tr. at 12.
Petitioner offered and I admitted Petitioner Exhibits (P. Exs.) 1-17. Tr. at 12-13. The
parties submitted posthearing briefs and reply briefs.

II. Applicable Law

The regulatory requirements for long-term care facilities that participate in the Medicare
and Medicaid programs are set forth at 42 C.F.R. Part 483. Facility compliance with the
participation requirements is determined through a survey and certification process.
Sections 1819 and 1919 of the Social Security Act; 42 C.F.R. Parts 483, 488, and 498.
This process is performed on behalf of the Secretary and CMS by state survey agencies.
Under Part 488, CMS may impose a CMP against a facility that is not complying
substantially with participation requirements. 42 C.F.R. §§ 488.406, 488.408, 488.430.
The penalty may start accruing as early as the date that the facility was first out of
compliance and runs until the date substantial compliance is achieved or the provider
agreement is terminated.

“Deficiency” is defined as a facility’s “failure to meet a participation requirement
specified in the Act” or in 42 C.F.R. Part 483. 42 C.F.R. § 488.301. The term
“substantial compliance” means “a level of compliance with the requirements of
participation such that any identified deficiencies pose no greater risk to resident health
or safety than the potential for causing minimal harm.” Jd. “Noncompliance” means
“any deficiency that causes a facility to not be in substantial compliance.” Id. And,
“immediate jeopardy” means “a situation in which the provider’s noncompliance . . . has
caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” Id.

The regulations specify that a CMP that is imposed against a facility on a per day basis
will fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The
upper range of CMP, of from $3050 per day to $10,000 per day, is reserved for
deficiencies that constitute immediate jeopardy to a facility’s residents, and, in some
circumstances, for repeated deficiencies. 42 C.F.R. §§ 488.438(a)(1)(i), (d)(2). The
lower range of CMP, from $50 per day to $3000 per day, is reserved for deficiencies that
do not constitute immediate jeopardy, but either cause actual harm to residents, or cause
no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R.

§ 488.438(a)(1)(ii). There is only a single range of $1000 to $10,000 for a per instance
CMP that applies whether or not immediate jeopardy is present. 42 C.F.R.

§§ 488.408(d)(1)(iv), 488.438(a)(2).

The Act and regulations make a hearing before an ALJ available to a long-term care
facility against which CMS has determined to impose a CMP. Act § 1128A(c)(2); 42
C.F.R. §§ 488.408(g), 498.3(b)(13). The hearing before an ALJ is a de novo proceeding.
Anesthesiologists Affiliated, et. al, DAB CR65 (1990), aff'd, 941 F.2d 678 (8th Cir.
1991); Emerald Oaks, DAB No. 1800, at 11 (2001); Beechwood Sanitarium, DAB No.
1906 (2004); Cal Turner Extended Care Pavilion, DAB No. 2030 (2006); The Residence
at Salem Woods, DAB No. 2052 (2006). A facility has a right to appeal a “certification
of noncompliance leading to an enforcement remedy.” 42 C.F.R. § 488.408(g)(1); see
also, 42 C.F.R. §§ 488.330(e), 498.3. However, the choice of remedies by CMS or the
factors CMS considered when choosing remedies are not subject to review. 42 C.F.R.

§ 488.408(g)(2). A facility may only challenge the scope and severity level of
noncompliance found by CMS if a successful challenge would affect the amount of the
CMP that could be collected by CMS or impact upon the facility’s nurse aide training
program. 42 C.F.R. §§ 498.3(b)(14), (d)(10)(i). CMS’s determination as to the level of
noncompliance “must be upheld unless it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2).
This includes CMS’s findings of immediate jeopardy. Woodstock Care Center v.
Thompson, 363 F.3d 583 (6th Cir. 2003). The Departmental Appeals Board (the Board)
has long held that the net effect of the regulations is that a provider has no right to
challenge the scope and severity level assigned to a noncompliance finding, except in the
situation where that finding was the basis for an immediate jeopardy determination.’ See,
e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000).
Review of a CMP by an ALJ is governed by 42 C.F.R. § 488.438(e).

III. Issues, findings of fact and conclusions of law
A. Issues
The issues in this case are whether Petitioner failed to comply substantially with the

requirements of 42 C.F.R. § 483.25(h) that the resident environment remain as free of
accident hazards as is possible and that each resident receives adequate supervision and

' Such a challenge is only applicable where CMS has imposed a per day CMP within the
upper range; there is no such challenge available if a per instance CMP is imposed.
assistance devices to prevent accidents; and whether CMS’s determination that
Petitioner’s noncompliance with the requirements of 42 C.F.R. § 483.25(h) constituted
immediate jeopardy was clearly erroneous.

Petitioner has not argued that the CMPs imposed are unreasonable.
B. Findings of fact and conclusions of law

I make the following findings of fact and conclusions of law (Findings), set forth below
as separate headings in bold and italics, to support my decision in this case.”

1. Petitioner was not in substantial compliance with the requirements of
42 CF.R. § 483.25(h).

This case involves a single deficiency. Specifically, CMS maintains that Petitioner
violated section 483.25(h) by failing to provide a cognitively-impaired resident, Resident
1 with adequate supervision to prevent her elopement.

Resident 1, a 66 year-old female, was diagnosed as having schizophrenic disorder of
paranoid type, other persistent mental disorders, dementia, depression, and neurotic
behaviors. CMS Br. at 2; CMS Ex. 8, at 5; CMS Ex. 10, at 8. Resident 1 had both short
term and long term memory problems. CMS Ex. 9, at 2. Her cognitive skills for daily
decision making were moderately impaired and had deteriorated prior to the time of the
Minimum Data Set Assessment on November 21, 2008. Jd. Resident | had periods of
altered perception or awareness of her surroundings, episodes of disorganized speech,
and mental function variations over the course of the day. Jd. She also had auditory
hallucinations (she appeared to be “hearing things”), delusions (she believed people were
trying to shoot her) and confusion. CMS Ex. 8, at 18, 24, 26, 44.

Resident 1 was fully ambulatory, but was at risk for falls. CMS Ex. 8, at 6; CMS Ex. 10,
at 3-4. She wandered around the facility aimlessly, and often wandered into other
residents’ rooms. Jd.; CMS Ex. 9, at 3; CMS Ex. 11, at 2-4, 8, 11. She also had made
one or more attempts to elope the facility and she was considered an elopement risk.
CMS Ex. 8, at 6. Her physician ordered a wander-alert watch for her and her care plan

> [have reviewed the entire record, including all the exhibits and testimony. As I am not
bound by the rules of evidence applicable to court procedure (See 42 C.F.R. § 498.61), I
may admit evidence and determine later, upon a review of the record as a whole, what
weight, if any, I should accord that evidence or testimony. To the extent that any
contention, evidence, or testimony is not explicitly addressed or mentioned, it is not
because I have not considered the contentions. Rather, it is because I find that the
contentions were not supported by the weight of the evidence or by credible evidence or
testimony.
addressed her wandering behavior and required that she be monitored for her location
every two hours with visual checks. CMS Ex. 8, at 8; CMS Ex. 10, at 18.

On January 20, 2009, at approximately 9:20 p.m., Resident 1 was standing at the nurses’
station, refusing to take her medications. CMS. Ex. 11, at 9. At 9:50 p.m., LPN Holmes
went to Resident 1’s room to attempt to give her the medications, but Resident 1 was not
in her room. LPN Holmes then checked all the places Resident | usually would go to in
the facility. Resident 1 was not found. LPN Holmes alerted all the staff and everyone
searched the inside of the facility three times. /d. When she still was not found, the staff
went outside to search for Resident 1 around the buildings and parking lots. Jd. She was
not found; the police then were called to aid in the search. /d., at 9-10.

Some of the staff drove over to a nearby trailer park, about two blocks south of the
facility. They found Resident | at around 11 p.m. She was on the ground, sitting up
against one of the trailers. She had on a top, but her pants and her brief were off. No one
else was around her. When the staffers started to walk over to Resident 1, a pit bull
jumped up and came after them. However, they quickly noticed to their relief that the pit
bull was tied up on a chain and couldn’t reach them. The dog, though, was only about
three feet away from Resident 1 when it reached the end of its chain. CMS Ex. 12, at 13-
14; CMS Ex. 20, at 3. An ambulance was called and Resident | was transported to the
hospital. CMS Ex. 20. The outside temperature was 30 degrees Fahrenheit at the time
Resident 1 was found. CMS Ex. 33; CMS Ex. 12, at 14.

Petitioner relied on the Elopement Computer Tracking System (ECTS or system) to track
and monitor those residents assessed to be at risk for elopement. This system monitors
the physical location of each resident wearing a wander-alert watch, provided the resident
is within the system’s monitoring range, and displays the resident’s location on a
computer monitor located at the front reception desk.? CMS Ex. 12, at 2-3; Tr. 31, 178.
The system will lock down all the exit doors when a resident wearing a wander-alert
watch comes close to the doors, except for the dining room exit or smoking area exit
doors where the residents are allowed to go out. CMS Ex. 15, at 3. Ifa resident wearing
a wander-alert watch does leave through any of these doors, an alert sounds on a pager
unit, discussed in more detail below. Jd. If this occurs, Petitioner’s policy states that the
nurse should advise the CNA to join the resident outside to monitor the resident’s
activity. Jd. Should any of the residents wearing the wander-alert watch leave the
monitoring range, the system sounds an alert through a pager that an elopement is in
progress and identifies the door through which the resident has passed. CMS Ex. 15, at
3; P. Ex. 6.

* The reception desk is located away from the residents’ rooms and away from where all
the nursing care, daily care, and meals are provided. CMS Ex. 36; Tr. 222.
The facility maintains two pagers for the ECTS. Petitioner’s policy requires that while
one pager is in use, the other pager should be charging at the nurses’ station. Tr. 76, 176-
77, 183, 240-41; P. Exs. 6 and 7. A designated nurse for each shift is to have the pager
on his or her person at all times while working. /d. According to Petitioner’s policy, the
pagers are literally to be “handed off” to the next designated nurse at each shift change.
P. Exs. 2 and 7; Tr. 234; CMS Ex. 35, at 7. And, at each shift change, the designated
ongoing nurse is responsible for making sure the pagers are functioning correctly. P.
Exs. 6 and 7; CMS Ex. 35, at 7. If the pager is not functioning correctly or if the system
becomes inoperable, the designated nurse is responsible for notifying her or his
supervisor, the Director of Nursing, and for stationing personnel at the appropriate doors
if the system is not functioning. Jd. Also, the facility policy notes that if the pagers are
not working or not charged completely, the computer monitor at the front desk will allow
the staff to locate the residents. P. Ex. 6.

On the day of the elopement, Andrea McGill was the designated nurse in charge of
eeping the pager on the day shift. CMS Ex. 12, at 9; CMS Ex. 35, at 12; P. Ex. 2. At
the end of her shift, Ms. McGill left the pager on the nurse’s desk instead of handing it to
Sarah Holmes, the ongoing designated nurse, in person. P. Ex. 2. Ms. Holmes left both
pagers at the nurse’s station desk to be charged because, she claimed, both pagers had
blank screens and she thought this meant that both pagers needed to be charged. CMS
Ex. 12, at 5; CMS Ex. 24, at 6. Ms. Holmes notified no one about the alleged problem
with the pagers. CMS Ex. 24, at 6. Consequently, she was not wearing the pager as she
proceeded with her duties. Resident 1 exited the building at 9:23 p.m., while both pagers
were left at the nurse’s station.

There is no dispute that on the night of the incident, the ECTS was operational and
unctioning. There is no dispute that the pagers also were working that night — the
Director of Nursing, upon returning to the facility after the search for Resident 1, checked
the pagers and confirmed that the pager “was charged, on and working.” P. Ex. 16; Tr. at
251.

Petitioner contends that it provided adequate supervision and assistance devices to
prevent Resident | from eloping from the facility. Petitioner further contends that it took
all reasonable steps to protect Resident 1 and that her elopement was not because of a
ailure on the part of the Petitioner but because one employee, LPN Holmes, who had
been trained and knew the Petitioner’s policies, failed in her duty to follow those policies
and procedures in place. Petitioner therefore argues that the conduct of LPN Holmes was
an isolated event and not evidence of deficiencies in Petitioner’s practices. Petitioner
contends that if I sustain the deficiency cited against Petitioner because LPN Holmes
‘ailed to have the pager on her person, I would be elevating the standard from reasonable
and adequate measures to a strict liability standard. P. Br. at 24-25.

I disagree with that argument; I am not persuaded by Petitioner’s arguments and
assertions that it adequately protected Resident 1. On the contrary, I find CMS’s
arguments to be persuasive and supported by the weight of the evidence.

The applicable regulation has been the subject of much litigation.’ It requires a facility to
take all reasonable measures to protect its residents from accident hazards that are known
or that are foreseeable. Here, Petitioner chose to implement the ECTS as its method to
protect those residents who were at risk for elopement; however, the preponderance of
the evidence shows that the ECTS, as implemented and used by Petitioner, did not
constitute an adequate level of supervision for residents at risk for elopement such as
Resident 1. Moreover, the preponderance of the evidence also shows that the failure to
supervise Resident 1 adequately to prevent her elopement was not an isolated event to be
blamed on the failure of a single employee to follow the facility’s policy. Rather, I agree
with CMS that the elopement of Resident | resulted from a multitude of failures on the
part of Petitioner’s staff, not simply and solely the failure of LPN Holmes, to follow
established policies and procedures for implementation of the ECTS. First, the
designated nurse going off-duty did not “hand off” the pager directly to LPN Holmes; she
merely put it on the nurse’s station desk — a failure to follow ECTS policy. Tr. 234;
CMS Ex. 35, at 12. Next, LPN Holmes did not carry the pager on her person on the
night of the incident, claiming that she believed that the pagers were not operating
properly — a failure to follow the policy. Then, LPN Holmes did not call her supervisor
immediately to report that the pagers were not working — a failure to follow the policy.
CMS Ex. 1, at 9 (“LPN #1 stated that he/she had not notified anyone regarding the blank
pager screen. . .”), 10. Based on her belief that the pagers were not working, LPN
Holmes did not look at the computer monitor to verify the operation of the system and the
whereabouts of the residents wearing the wander-alert watches, nor did any of the other
staff in the facility that evening who were supposedly trained in the use of the ECTS
system — a failure to follow ECTS policy. She also did not station staff at the exit doors

4+ See Koester Pavilion, DAB No. 1750, at 24 (2000) (the regulation does not impose
strict liability of unforeseeable mishaps, but requires a facility “to do everything in its
power to prevent accidents”); Windsor Health Care Center, DAB No. 1902, at 5 (2003)
(a facility may “choose the methods it uses to prevent accidents, but the chosen methods
must constitute an ‘adequate’ level of supervision under all the circumstances”);
Briarwood Nursing Center, DAB No. 2115, at 11 (2007) (the relevant inquiry is “whether
the facility took all reasonable steps to ensure that a resident receives supervision and
assistance devices that meet his or her assessed needs and mitigate foreseeable risks of
harm from accidents”); and Burton Health Care Center, DAB No. 2051, at 14 (2006) (in
determining whether the supervision a facility provides was adequate, the Board looks
“first to whether the facility provided supervision in accordance with the resident’s . . .
plan of care” and a facility’s failure to “provide the type of supervision that it had
determined was required to meet the resident’s needs” supports the finding of a
deficiency under section 483.25(h)(2)).
to prevent an elopement in the event that the system was not operational — a failure of
the ECTS policy. Prior to the night in question, LPN Holmes routinely failed to wear the
pager on her person, placing the pager on the medication cart instead, thus making it
impossible for her to hear the pager if she was away from the medication cart.

Petitioner tries to diminish its responsibility here by claiming that any deficiency is due
solely to LPN Holmes’ failure to follow the policies and procedures established by
Petitioner on how to implement the ECTS. However, Petitioner has an ongoing
responsibility to make sure its staff not only is trained in its policies and procedures on
implementation of the ECTS but also to supervise its staff in the performance of their
duties after they are trained to determine if the staff actually follow the policies and
procedures established. This is all the more important in the circumstances as in this
case, where Petitioner chose to use and rely solely on a particular system to prevent
elopement from its facility. Thus, under the federal participation requirement, it is
Petitioner’s responsibility to make sure that its staff is familiar with ECTS and know how
it should be used. This requires that Petitioner properly supervise its staff to determine if
whatever system they choose to use is properly implemented.

And, finally, it is well settled that a facility cannot disown the acts and omissions of its
own staff, not even an isolated error by a single employee, to immunize itself from a
finding of substantial noncompliance. As the Board stated in Cal Turner Extended Care
Pavilion--

[a facility cannot] avoid responsibility by blaming one nurse for the failure of
multiple systems. . . a facility “cannot disown the consequences of the
inadequacy of the care provided by the simple expedient of pointing the finger at
her fault, since she was the agent of her employer empowered to make and carry
out daily care decisions.” Emerald Oaks, DAB No. 1800, at 7, n.3 (2001); see also
Cherrywood Nursing and Living Center, DAB No. 1845 (2002) and Ridge
Terrace, DAB No. 1834 (2002).

DAB No. 2030, at 15 (2006); see also Life Care Center of Gwinnett, DAB No. 2240, at
12-13 (2009).

2. CMS’s determination that the facility’s noncompliance posed
immediate jeopardy to resident health and safety is not clearly
erroneous.

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause,
“serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. CMS’s
determination as to the level of a facility’s noncompliance (which would include an
immediate jeopardy finding) must be upheld unless it is “clearly erroneous.” 42 C.F.R.
§ 498.60(c). The Board has observed repeatedly that the “clearly erroneous” standard
imposes on facilities a heavy burden to show no immediate jeopardy and has sustained
determinations of immediate jeopardy where CMS presented evidence “from which
‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” Barbourville Nursing
Home, DAB No. 1962, at 11; Florence Park Care Center, DAB No. 1931, at 27-28
(2004).

I find that there is no question that Petitioner’s noncompliance placed Resident 1 and
other elopement-risk residents in immediate jeopardy. I further find that the finding of
immediate jeopardy was not clearly erroneous. Here, the failure of Petitioner to
adequately supervise and provide assistance devices to prevent accidents to Resident 1
resulted in the elopement of this Resident from the facility. As a result of the elopement,
the whereabouts of this Resident went unnoticed for well over an hour. While the
Resident suffered abrasions to her knee caps and was exposed to extremely cold weather
with out adequate clothing, it is merely fortuitous that she did not suffer more serious
harm. Clearly, the likelihood of serious harm or death to Resident 1 was great due to her
cognitive impairment and her lack of safety awareness; once she eloped from the facility,
she was at risk for being struck by a motor vehicle, for falling, for hypothermia, or for
attack by one of the several dogs tied up in the canine minefield where she was found.

3. The penalty imposed is reasonable.

CMS imposed a penalty in the amount of $3,550 per day from January 20 through
January 28, 2009 and $100 per day for January 29, 2009.

In order to determine whether the CMPs are reasonable, I apply the factors listed in 42
C.F.R. § 488.438(f), which are: (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 listed in 42 C.F.R. § 488.404 include: (1) the scope and severity of the
deficiency; (2) the relationship of 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 must 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 deficiency 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 Center, DAB No. 1848, at 21 (2002).
10

CMS has imposed a penalty of $3,550 per day, which is at the low end of the penalty
range for situations of immediate jeopardy ($3,050-$10,000). CMS does not cite facility
history as a factor that justifies a higher CMP and Petitioner does not argue that its
financial condition affects its ability to pay the penalty. I have considered the remaining
necessary factors. The facility here is culpable for the deficiency because it did not
properly supervise its staff to determine whether its own policies and procedures intended
to prevent elopements were being implemented as required. This measure of culpability,
taken into consideration together with the finding of immediate jeopardy, is sufficient to
sustain the CMP at $3,550 per day for the period of January 20 through January 28, 2009.
I further conclude that the CMP of $100 for January 29, 2009 is reasonable because while
Petitioner had abated the immediate jeopardy by that date, the facility had not completed
the keypad locks on some of the exits until after January 29, 2009.

Therefore, I find the penalties imposed reasonable.
IV. Conclusion
For the reasons discussed above, I find that Petitioner’s facility was not in substantial

compliance with the Medicare requirements, and that its noncompliance posed immediate
jeopardy to resident health and safety. I affirm as reasonable the penalty imposed.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Miller’s Merry Manor — Rockport, et al.,
Petitioners,
Vv.
Centers for Medicare & Medicaid Services.
Docket Nos. C-10-558 through C-10-570
Decision No. CR2228

Date: August 27, 2010

DECISION

For the reasons set forth below, I grant the Centers for Medicare & Medicaid Services’
(CMS’s) motion for summary judgment (MSJ) in each of these consolidated cases. A
complete list of Petitioners, along with the corresponding docket numbers and provider
transaction access numbers (PTANs) is appended to this decision. The undisputed
evidence establishes that Petitioners were not in compliance with Medicare program
requirements, and, as a consequence, CMS has the authority to revoke Petitioners’
Medicare supplier PTAN numbers.

I. Applicable Law and Regulations

Section 1834(a)(16)(B) of the Social Security Act (Act), 42 U.S.C. § 1395m(a)(16)(B),
states that the Secretary of Health and Human Services (Secretary) “shall not provide for
the issuance (or renewal) of a provider number for a supplier of durable medical
equipment, for purposes of payment . . . for durable medical equipment furnished by the
supplier, unless the supplier provides the Secretary on a continuing basis . . . with a surety
bond in a form specified by the Secretary and in an amount that is not less than $50,000.”

CMS’s regulations implement statutory requirements through the “supplier standards” at
42 C.F.R. § 424.57(c) that suppliers of durable medical equipment, prosthetics, orthotics,
and supplies (DMEPOS) must meet to maintain Medicare billing privileges. As relevant
here, section 424.57(c) provides:

(c) Application certification standards. The supplier must meet and must
certify in its application for billing privileges that it meets and will continue
to meet the following standards.

a

(22) All suppliers of DMEPOS and other items and services must be
accredited by a CMS-approved accreditation organization in order to
receive and retain a supplier billing number. The accreditation must
indicate the specific products and services, for which the supplier is
accredited in order for the supplier to receive payment for those specific
products and services. [supplier standard 22]

* OR Rk

(26) [The supplier m]ust meet the surety bond requirements specified in
paragraph (d) of this section. [supplier standard 26]

The surety bond requirements at 42 C.F.R. § 424.57(d) referenced in supplier standard 26
state, as relevant here, that “beginning October 2, 2009, each Medicare-enrolled
DMEPOS supplier must meet the requirements of paragraph (d) ... .” These include
maintaining ‘“‘a bond that is continuous,” which “meet[s] the minimum requirements of
liability coverage ($50,000),” and provides that “[t]he surety is liable for unpaid claims,
CMPs [civil money penalties], or assessments that occur during the term of the bond.”
42 C.F.R. § 424.57(d)(1)(ii), (4), (5). “The term of the initial surety bond must be
effective on the date that the application is submitted to the NSC [National Supplier
Clearinghouse, a Medicare contractor].” 42 C.F.R. § 424.57(d)(2). CMS may at any
time require a DMEPOS supplier to show compliance with the surety bond requirement.
42 CFR. § 424.57(d)(12).

The regulations provide that failure to submit a surety bond as required is grounds for
revocation of a supplier’s billing privileges. 42 C.F.R. § 424.57(d)(4)(ii)(B); see also 42
C.F.R. § 424.57(d)(11) (“CMS revokes the DMEPOS supplier’s billing privileges if an
enrolled supplier fails to obtain, file timely, or maintain a surety bond as specified in this
subpart and CMS instructions.”). Section 1834(a)(20)(F)(i) of the Act imposed the
requirement to become accredited by October 1, 2009, implemented by supplier standard
22. The regulations also provide that CMS “will revoke a supplier’s billing privileges if
it is found not to meet” the supplier standards or other requirements in section 424.57(c).
42 CFR. § 424.57(e) (formerly § 424.57(d)).!

' Paragraph (e) of section 424.57 was previously designated paragraph (d) and was
redesignated by the rulemaking that imposed the surety bond requirements at paragraph
(d); however, the redesignations have not yet been incorporated into the Code of Federal
Regulations. See 42 C.F.R. Ch. IV § 424.57, Editorial Note (Oct. 1, 2009). References
are to the regulation as redesignated.
A supplier that has had its billing privileges revoked is “barred from participating in the
Medicare program from the effective date of the revocation until the end of the re-
enrollment bar. The re-enrollment bar is a minimum of | year, but not greater than 3
years depending on the severity of the basis for revocation.” 42 C.F.R. § 424.535(c).

II. Background

Petitioners in this appeal consist of 13 DMEPOS suppliers owned by Miller’s Health
Systems, Inc., d/b/a Miller’s Merry Manor (Miller’s), operating at 13 locations. NSC
revoked the supplier numbers of each location. CMS Exs. 1, at 7 (October 9, 2009
revocation notice in C-10-569); 2, at 7 (October 9, 2009 revocation notice in C-10-565);
3, at 7 (November 9, 2009 revocation notice in C-10-564); 4, at 7 (October 9, 2009
revocation notice in C-10-568); 5, at 7 (October 9, 2009 revocation notice in C-10-566);
6, at 7 (October 9, 2009 revocation notice in C-10-559); 7, at 7 (October 9, 2009
revocation notice in C-10-563); 8, at 7 (November 9, 2009 revocation notice in C-10-
558); 9, at 7 (October 9, 2009 revocation notice in C-10-560); 10, at 7 (October 9, 2009
revocation notice in C-10-562); 11, at 7 (November 9, 2009 revocation notice in C-10-
561); 12, at 7 (October 9, 2009 revocation notice in C-10-570); and 13, at 7 (October 9,
2009 revocation notice in C-10-567).”

By a single letter dated November 6, 2009, Petitioners sought reconsideration of all the
revocations, as well as of additional supplier numbers not presently before me. See, e.g.,
CMS Ex. 1, at 5. An NSC hearing officer upheld the revocations in decisions issued over
two days. CMS Exs. 1, at 1 (January 15, 2010 reconsideration decision in C-10-569); 2,
at 1 (January 15, 2010 reconsideration decision in C-10-565); 3, at 1 (January 15, 2010
reconsideration decision in C-10-564); 4, at 1 (January 14, 2010 reconsideration decision
in C-10-568); 5, at 1 (January 14, 2010 reconsideration decision in C-10-566); 6, at 1
(January 14, 2010 reconsideration decision in C-10-559); 7, at 1 (January 14, 2010
reconsideration decision in C-10-563); 8, at 1 (January 15, 2010 reconsideration decision
in C-10-558); 9, at 1 (January 15, 2010 reconsideration decision in C-10-560); 10, at 1
(January 15, 2010 reconsideration decision in C-10-562); 11, at 1 (January 14, 2010
reconsideration decision in C-10-561); 12, at 1 (January 15, 2010 reconsideration

> CMS Exhibits 1-13 consist of the decisional documents relating to each Petitioner,
including each reconsideration decision, acknowledgment, reconsideration request, and
revocation notice. CMS organized the exhibits in order of PTANs assigned to the
suppliers (rather than by the docket numbers assigned to the cases on appeal). CMS
Motion for Summary Judgment and/or Dismissal (MSJ) at 1-2 n.2. Where the
corresponding documents in these exhibits are identical or the distinctions are immaterial,
I may cite only to a document in CMS Exhibit 1. CMS Exhibit 14 consists of 266 pages
of materials submitted by Petitioners. The same material accompanied Petitioners’
hearing requests but without consecutive numbering. In order to assist the reader in
following the discussion, I cite only to the numbered CMS exhibit for these duplicative
submissions.

4

decision in C-10-570); and 13, at 1 (January 14, 2010 reconsideration decision in C-10-
567).

By letter dated March 18, 2010 (HR), Petitioners requested hearings on appeal of the
listed reconsideration decisions. The material attached to the hearing request is, as noted,
contained in CMS’s numbered exhibits, which are admitted without objection. The cases
were assigned to me as a member of the Departmental Appeals Board (Board) pursuant to
42 C.F.R. § 498.44. L issued a pre-hearing order (PHO) on March 30, 2010 and ordered
the cases consolidated on April 27, 2010 at CMS’s request and without objection from
Petitioners.

Petitioners failed to respond timely to CMS’s MSJ or to a letter sent by fax from this
office inquiring as to whether Petitioners intended to submit a response, so I ordered the
record closed on July 7, 2010. Thereafter, new counsel appeared for Petitioners and
requested an opportunity to file a “very brief response” to CMS’s motion, which I
permitted. Order Reopening Record at 1 (July 16, 2010). After determining that
Petitioners’ response (P. Br.), accompanied by an affidavit of Lori Haug, Chief Financial
Officer of the Petitioners’ parent corporation (Haug Aff.), contained new arguments not
reflected in the hearing request, I permitted CMS to file a reply which it did on August 6,
2010 (CMS Br.), accompanied by a declaration of Barry Bromberg, CMS’s Project
Officer overseeing NSC’s enrollment activities (Bromberg Decl.).

CMS objects to the admission of the Haug affidavit based on section 498.56(e) which
bars admission of “any new documentary evidence” before the ALJ absent a good cause
determination. CMS Br. at 5. CMS argues that I should treat the affidavit as “new
documentary evidence,” even if testimonial in nature, because it “is also literally a
document ....” Jd. CMS suggests that this reading harmonizes section 498.56(e) with
section 405.874(c)(3),(5) which requires suppliers to “submit all evidence that they want
to be considered” on reconsideration and precludes the supplier from “introducing new
evidence at higher levels of the appeals process.” CMS Br. at 5-6. CMS goes even
further and suggests that the “good cause” exception applies only to documentary
evidence whereas all testimonial evidence is completely barred by section
405.874(c)(3),(5). Id.

I disagree. To read the requirement that all supportive evidence be submitted on
reconsideration as precluding any later testimony would make a mockery of the ALJ
hearing process. The fundamental unfairness of CMS’s position is highlighted by CMS’s
proffer of its own witness testimony, illustrating that such a reading would result in
hearings in which only one party may offer testimony. The regulations afford no right to
an oral hearing during reconsideration or at any time prior to the ALJ hearing phase of
the appeal process. Reconsideration is not a hearing and the regulations addressing
reconsideration make no provision for convening an oral hearing. While section 405.874
refers to reconsideration being handled by the CMS regional office or “a contractor
hearing officer,” it has no hearing procedures and nowhere empowers or requires CMS or
the contractor to convene an oral hearing, take sworn testimony, preserve an accurate
5

transcript, or provide for cross-examination. On the contrary, more specific regulations
governing reconsideration at subpart B of part 498 (§§ 498.20 - 498.25) state that the
reconsideration will be performed based on written submissions. Thus, section 498.24(a)
states that, in conducting reconsideration, CMS (or its contractor) receives “written
evidence and statements that are relevant and material” and “[c]onsiders . . . the evidence
considered in making the initial determination, and any other written evidence submitted
under paragraph (a)... .” (Emphasis added). That a hearing officer may, as was
apparently done here, have unrecorded oral communication with a petitioner or their
representative does not convert the reconsideration process into an oral hearing. As
suppliers have no right to an oral hearing on reconsideration, barring testimony offered
“for the first time” at the ALJ level would have the absurd effect of denying suppliers the
right to oral hearings. In discussing the ALJ hearing process available to providers and
suppliers, subpart C of part 498 clearly provides evidentiary hearings at which witnesses
may be presented to provide sworn testimony and may be cross examined. CMS points
to nothing in the regulatory history evincing any intent that these procedures would not
apply to supplier/provider enrollment appeals under part 498. In the absence of clear
language to the contrary, I do not read a restriction on new documentary evidence to
constitute a bar to testimonial evidence in the context of an ALJ hearing.

The next question is whether, by complying with my order to submit direct examination
testimony in written form, Petitioners lost the ability to have that evidence considered in
their ALJ-level appeal. I find that they did not. That the testimony may be embodied in a
written form is an efficient option for reserving scarce and costly hearing time for
confrontation of witnesses whose credibility or accuracy is challenged. I decline to
accept the literalism of CMS’s argument which would simply result in burdening the
entire administrative system by forcing in-person hearings for oral testimony in
supplier/provider enrollment cases.

Finally, the two provisions cited by CMS are best reconciled, to the extent reconciliation
is required at all, by reading them as precluding appellants from withholding documents
at the reconsideration level only to proffer them on appeal unless an ALJ makes a
determination that good cause exists for the late submission. The requirement that a
petitioner submit all evidence that they wish considered at the reconsideration level
cannot reasonably be read to refer to sworn testimony or cross-examination since no
provision is made for receipt of such evidence at that level. Based on my analysis, I
therefore admit the Haug affidavit.

CMS also argues that Ms. Haug discusses documents which were not mentioned or
submitted on reconsideration and that Petitioners “should not be allowed to end-run the
limits on new evidence set forth in § 498.56(e) by submitting a declaration that claims the
existence and contents of documents when the documents themselves could not be
considered.” CMS Br. at 6, citing Haug Aff. at §§ 15-16. The documents at issue were
never even submitted on appeal but merely proffered as available for some future
hearing, nor was any showing of good cause for any eventual late submission offered. I
agree that Petitioners may not rely on testimony about the documents after failing to
6

submit the documents themselves and explain why they could not have been submitted
below. I discuss this conclusion further in ruling on the motion for summary judgment.

After receipt of the CMS reply brief, Petitioners asked to respond to the arguments
therein and the declaration relating to Medicare law and policy on consolidating supplier
numbers. Over CMS’s objection, I permitted a 5-page surreply which Petitioners
submitted on August 20, 2010 (P. Surreply).

III. Issues
The issues in this case are

(1) whether CMS is entitled to summary judgment on the ground that the
undisputed facts demonstrate that the revocation of Petitioners’ Medicare billing
privileges was legally authorized;

(2) whether Petitioners’ concerns about deactivation of certain supplier numbers
are properly before me; and

(3) whether Petitioners’ arguments that their multiple supplier numbers should be
consolidated into a single number or that past claims which have been “held”
should be paid are properly before me.

IV. 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
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, Inc., DAB No. 2291, at
5 (2009).
7
V. Findings of Fact, Conclusions of Law, and Discussion

I make findings and conclusions set out below in the bold, italicized headings, each
followed by my supporting discussion.

A, CMS was authorized as a matter of law to revoke Petitioners’ billing
privileges based on undisputed evidence that Petitioners had not obtained surety
bonds as required by 42 C.F.R. § 424.57(c)(26) and (d).

Petitioners state that their parent company operates 35 long-term care (LTC) facilities in
Indiana which are serviced by its DMEPOS supply operations out of a central location in
Warsaw, Indiana, from which enteral/parenteral products and services are delivered to
residents in the LTC facilities. P. Br. at 2; Haug Aff. at 1. Miller’s obtained DMEPOS
supplier numbers many years ago for the LTC facility locations at which it delivered
those DMEPOS products and services. /d. Petitioners began to pursue revalidation of
the supplier numbers in 2007 by submitting “approximately thirty applications, many of
which were processed without any further requests for information and some of which
were processed successfully after receiving additional information. HR. Petitioners
assert that they were told that the remaining numbers “were not reactivated in error” even
though the applications were “essentially identical for all locations... .” HR.

In seeking reconsideration, Petitioners indicated that they sought only to get the supplier
numbers “reactivated so as to be able to process payments, and then inactivated as of
September 30, 2009.” See, e.g., CMS Ex. 1, at 2. The hearing officer reported that, in
writing and in oral presentations, Ms. Haug, on behalf of Petitioners, represented that, on
the one hand, “the company was not interested in retaining their supplier numbers after
the October 1, 2009 deadline” but only wanted to get reimbursed for services provided
prior to that date, and, on the other hand, that once the supplier numbers were reactivated
for that prior period, the company “would look at proceeding with the proper
documentation being completed for the supplier numbers that may not be accredited.” Id.
The hearing officer found these two positions to be in conflict and, in any case,
inconsistent with applicable procedures for revalidation. Id.

Similarly, Petitioners assert to me that they “are simply requesting that these numbers be
reactivated for the period since inactivation through October 1, 2009” but acknowledge
their understanding that “a surety bond and accreditation would be necessary to bill under
these numbers after October 1, 2009.” HR. In short, Petitioners do not assert that they
were in compliance with surety bond requirements at any point. I discuss in the next
section Petitioners’ contentions about reactivation of their supplier numbers for the pre-
October 1, 2009 period. In this section, I consider whether the revocations (all of which
took effect 30 days after the issuance of the applicable revocation notice well after
October 1, 2009) are authorized as a matter of law based on the undisputed facts.

As noted above, the statute states that the Secretary shall not issue or renew a DMEPOS
supplier number “unless the supplier provides the Secretary on a continuing basis . . .
8
with a surety bond... .” 42 U.S.C. § 1395m(a)(16)(B) (emphasis added). This
requirement for continuous compliance is implemented in the regulations that the
Secretary issued. The introductory language of 42 C.F.R. § 424.57(c) states, in pertinent
part, “‘[t]he supplier must meet and must certify in its application for billing privileges
that it meets and will continue to meet” the supplier standards listed within. (Emphasis
added.) Those standards include section 424.57(c)(26) (supplier standard 26), which
states that a supplier “[m]Just meet the surety bond requirements specified in paragraph
(d) of this section.” It follows that a supplier must meet the surety bond requirements
specified in paragraph (d) on a continuing basis.

Consistent with this, the preamble to the final rule on appeals of CMS determinations
when a provider or supplier fails to meet the requirements for Medicare billing privileges
states that CMS believes that “all providers and suppliers must meet and maintain all
Federal and State requirements for their provider or supplier type to enroll or maintain
their enrollment in the Medicare Program.” 73 Fed. Reg. 36,448, 36,452 (June 27, 2008).

The regulation at 42 C.F.R. § 424.535 plainly authorizes CMS to revoke a supplier’s
Medicare enrollment whenever the supplier fails to maintain compliance with enrollment
requirements. Thus, section 424.535 provides:

Revocation of enrollment and billing privileges in the Medicare
program.

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

(1) Noncompliance. The provider or supplier is determined not to be in
compliance with the enrollment requirements described in this section, or in
the enrollment application applicable for its provider or supplier type, and
has not submitted a plan of corrective action as outlined in part 488 of this
chapter... .

It is an enrollment requirement that “[t]he supplier must meet and must certify in its
application for billing privileges that it meets and will continue to meet” the supplier
standards in 42 C.F.R. § 424.57(c), which includes the surety bond requirement of section
424.57(c)(26). 42 C.F.R. § 424.57(c). CMS will revoke the supplier’s Medicare billing
privileges if the supplier fails to meet any of these standards. 42 C.F.R. § 424.57(e);
18661CPayday.com, DAB No. 2289, at 13 (2009) (“[F]ailure to comply with even one
supplier standard is a sufficient basis for revoking a supplier’s billing privileges.”).

Section 424.57(d)(11) further makes abundantly clear the consequences of a failure to
obtain a compliant surety bond, as follows:

CMS revokes the DMEPOS supplier’s billing privileges if an enrolled
supplier fails to obtain, file timely, or maintain a surety bond as specified in
this subpart and CMS instructions. Notwithstanding paragraph (e) of this
9

section, the revocation is effective the date the bond lapsed and any
payments for items furnished on or after that date must be repaid to CMS
by the DMEPOS supplier.

42 CFR. § 424.57(d)(11); see also 42 C.F.R. § 424.57(c)(26).

The regulatory language is plain. A supplier must comply with all standards or CMS will
revoke its billing privileges. And I must sustain CMS’s determination where the facts
establish noncompliance with one or more of the regulatory standards. Petitioners here
make no claim to have complied with the additional requirement of supplier standard 22
to become accredited by October 1, 2009.

I therefore conclude that CMS acted within its regulatory authority to revoke Petitioners’
Medicare supplier numbers, because Petitioners were not compliant with the surety bond
requirements of 42 C.F.R. § 424.57(c)(26) and (d) by October 2, 2009 and did not
voluntarily terminate their enrollments before the requirement went into effect.

Petitioners assert that “Miller’s believes that there are numerous facts in dispute in this
matter” so that summary judgment should be denied (P. Br. at 7), but the standard for
summary judgment is that the non-movant must show that material facts are in dispute.
The facts that Petitioners refer to are not material. For example, Petitioners assert that
Miller’s “has never had a compliance problem with CMS (for which the surety bond is
intended to protect)” and that it obtained a single accreditation in anticipation of
consolidating its supplier numbers. P. Br. at 6 (emphasis in original). The requirements
for each supplier enrolled in Medicare to obtain a surety bond and become accredited do
not depend on whether that supplier has had past compliance problems nor whether the
supplier’s number may later be consolidated with that of another enrolled supplier that is
accredited. See infra for further discussion of the consolidation issue. Similarly,
Petitioners allege that CMS has not raised “‘any concerns regarding Miller’s submission
of claims for covered Medicare DME ....” Jd. at 4 (emphasis in original). Petitioners’
uncontested noncompliance with the accreditation and surety bond requirement is
unrelated to whether any concerns have arisen about its claims.

Petitioners also contend that Miller’s is suffering “financial hardship” because the
“inconsistent processing of enrollment applications” has forced it “to hold and not seek
payment for many Medicare claims in excess of $170,000. Jd. at 7. I cannot address the
status of other supplier numbers which have been approved or deactivated and are not
before me. To the extent that some unsubmitted claims related to the revoked supplier
numbers, the issue before me is whether the revocations are supported by law, not
whether Petitioners incurred costs for services performed after revocation. Petitioners do
not deny that they had 30 days notice of the impending revocation so it is not clear why
Miller’s would have provided services thereafter for which they are holding claims. To
the extent that Petitioners are seeking equitable relief based on hardship or equitable
estoppel based on confusion about its communications with NSC (see Haug Aff. passim),
this forum cannot offer relief from legal requirements on such grounds. Such arguments

10
essentially seek estoppel against the federal government, which, if available at all, is
presumably unavailable absent “affirmative misconduct,” such as fraud. See, e.g., Pac.
Islander Council of Leaders, DAB No. 2091 (2007); Office of Pers. Mgmt. v. Richmond,
496 U.S. 414, 421 (1990). Petitioners allege nothing that could be characterized as
affirmative misconduct. Furthermore, I would not find even the basic requirements of
estoppel to be present since Petitioners have not shown that they reasonably relied on any
misrepresentation in incurring costs which are not reimbursable.

Finally, Petitioners state that Miller’s “is prepared to demonstrate at the hearing, that it
possessed a surety bond and accreditation which fully covered the Company’s DME
supplier business which included any locations where the Company delivered products
for beneficiary use.” P. Br. at 6-7. Petitioners had ample opportunity to proffer evidence
of compliant surety bond and accreditation documentation at the reconsideration but did
not do so. See CMS Ex. 14 (representing Petitioners’ entire submission at the
reconsideration level in each case).? The regulations require that I exclude any
documentary evidence not submitted on reconsideration unless good cause exists for the
late submission. 42 C.F.R. § 498.56(e). Despite my advising Petitioners of this
requirement in my initial order, they offer no explanation for late submission. See PHO
at 2. Indeed, they still do not proffer the purported evidence now, but merely suggest that
they are “prepared” to do so at an eventual hearing even though I instructed Petitioners to
submit all proposed exhibits with their exchange and response to the MSJ, and advised
them that an in-person hearing would be necessary only if a party requested to cross-
examine a witness whose written direct testimony was admitted. PHO at 2-3. Petitioners
had no basis to withhold documentary evidence on the assumption that yet another
opportunity would be provided to them to produce this documentation. While I draw all
reasonably inferences in Petitioners' favor in ruling on CMS’s summary judgment
motion, I cannot infer a good cause showing that Petitioners fail to even allege.

I conclude that CMS is entitled to summary judgment on the issue properly before me of
whether Petitioners' revocations were authorized under the applicable law.

B. Deactivation is not subject to review before me.

The revocation notices sent to Petitioners informed them that NSC was revoking their
supplier numbers effective 30 days from the date of the notices. See, e.g., CMS Ex. 1,

at 7. They also asked Petitioners to contact NSC immediately if they had timely obtained
required accreditation and/or surety bonds or if they had submitted a request for

> Ms. Haug avers that Miller’s “submitted applications to notify the NSC on our recent
accreditation and attainment of the surety bond” but no such application was submitted
on appeal. Haug Aff. at 4. Nothing in the Haug affidavit suggests that these documents
covered the multiple supplier numbers for different service locations, as opposed to the
centralized supplier distribution center. Since Petitioners chose not to provide me or the
hearing officer with the actual terms of the surety bond or accreditation documentation, I
cannot reasonably infer coverage of the Petitioners’ supplier numbers.
11
voluntary termination of their supplier numbers prior to October 1, 2009. Jd. Voluntary
termination of a supplier number before the accreditation or surety bond requirements
went into effect would mean that the supplier was not out of compliance and therefore
would not be revoked. See Sherye Epps d/b/a Sunshine Shoes, DAB CR2215, at 10
(2010) (citing CMS information letter advising suppliers of option to voluntarily
terminate enrollment before new surety bond and accreditation requirements took effect);
74 Fed. Reg. 166, 180 (Jan. 2, 2009) (CMS believed “that some DMEPOS suppliers will
make the decision to withdraw from the Medicare program due to the additional costs
associated with the surety bond”). Voluntary termination, unlike revocation, carries no
re-enrollment bar and therefore such a supplier could re-apply immediately once they
achieved compliance. Petitioners do not assert, and the record does not show, that they
ever requested voluntary termination despite the statements cited above from the
reconsideration decisions and the hearing request to the effect that Petitioners were only
seeking retroactive reinstatement in order to submit past claims but was not attempting to
meet the accreditation and surety bond requirements until some later point.

Petitioners argue that some of their supplier numbers were deactivated in error and
should have been reactivated, as were other supplier numbers. HR. CMS, however,
points out that Petitioners themselves submitted a chart showing the action dates for 30
supplier locations for which it sought revalidation. CMS MSJ at 10-11; CMS Ex. 14, at
6-7. Eleven of the 13 supplier numbers that were revoked and are at issue on appeal are
listed as having been among those that were reactivated in 2007. CMS Ex. 14, at 6-7.
Further, all the supplier numbers at issue in the present case are listed in the chart as
active as of June 10, 2009. Jd.

In their response to CMS’s motion, Petitioners do not dispute CMS’s reading of the chart
as it applies to the numbers at issue. Instead, Petitioners simply state that 22 of the 30
revalidation applications “were ultimately processed to completion and 8 were
deactivated by NSC due to an enrollment-related documentation issue ....” P. Br. at 4.
Petitioners suggest that deactivation amounted to a constructive revocation since NSC
would not either consolidate those numbers under a single supplier number (a new
contention which I address below) or reactivate them. Petitioners nowhere indicate that
any of the deactivated supplier numbers are among those presently before me. I therefore
have no jurisdiction to take any action as to those numbers.

In any case, Petitioners are mistaken in equating deactivation and revocation. The
actions differ significantly in their consequences. Deactivation, like voluntary
termination, does not involve any re-enrollment bar, so that a deactivated supplier
number may be reactivated upon submission of whatever information is necessary (as
happened with most of the supplier numbers in the chart). Compare 42 C.F.R.

§ 424.535(c) with 42 C.F.R. § 424.540(b). Furthermore, suppliers whose numbers are
revoked have appeal rights, whereas the only provision to challenge a deactivation
permits submission of a rebuttal statement but does not mention any right to
reconsideration or to further administrative review. Compare 42 C.F.R. § 424.545(a)
with 42 C.F.R. § 424.545(b); see also 42 C.F.R. §§ 405.374, 405.375(c).
12

C. Petitioners’ additional arguments regarding consolidation of their
multiple supplier numbers and about payment for past services are not
properly before me.

In responding to CMS’s motion, Petitioners suggest that neither the deactivations nor the
revocations that affected its multiple supplier numbers would have happened if “the
entire Miller’s Part B supplier business would have been consolidated into a single
Medicare Part B supplier number.” P. Br. at 1-2. Petitioners contend that this approach
would have been appropriate because Miller’s DMEPOS operations are provided to
patients in its 35 LTC facilities but are run by a “single, centralized company under a
single corporate tax ID... .” Jd. at 2. According to Petitioners, no one at Miller’s or
NSC apparently knows why Miller’s received 30 separate supplier numbers when it
enrolled in Medicare more than 22 years ago. /d; Haug Aff. at 2.

Petitioners do not dispute that, when they received re-enrollment applications for the 30
separate supplier number, they sought to re-enroll each of them separately. P. Br. at 3.
Nor do Petitioners allege that they ever filed an application to enroll as a single supplier.

In fact, Petitioners assert that the idea of consolidating supplier numbers occurred to Ms.
Haug only in 2009 when she became aware of the requirement that each supplier submit
proof of a compliant surety bond by October 1, 2009. /d.; Haug Aff. at 3. Ms. Haug
alleges that she then had conversations with accreditation companies and with unnamed
NSC representatives that led her to conclude that they “could operate the business under a
single Medicare Part B supplier number,” whereupon Miller’s obtained a single
accreditation and surety bond. Haug Aff. at 3-4. She states that they did so based on “the
representations from the NSC that we would be able to consolidate our Medicare supplier
numbers... .” Jd. at 4. Ms. Haug contends, based on these assertions, that the
revocations at issue were “inconsistent with our prior conversations with the NSC... .”
Id.

To begin with, I fail to see the alleged inconsistency. Accepting for purposes of
summary judgment that some representative of NSC did indicate that Miller’s could
enroll a single consolidated supplier number, I still find no representation by Petitioners
that Miller’s ever filed an application seeking to enroll as a consolidated supplier.
Petitioners accuse CMS of failing to understand Miller’s business structure, but do not
explain why Miller’s sought to maintain all 30 supplier numbers and, as late as the
hearing request in this case, sought to reactivate those which had been deactivated. See
P. Br. at 1. Since Petitioners never filed an application for a consolidated number, no
such application was ever denied. As mentioned above, appeal rights extend to denials of
applications, but Petitioners do not provide any basis for me to review an inchoate
dispute prior to any actual application or denial. In short, even assuming NSC would
approve consolidation, Petitioners do not show that Miller’s could simply proceed as if
consolidation had been sought and granted without ever requesting a new consolidated
supplier number.
13

Secondly, I agree with CMS that no initial determination has been made about
consolidating Miller’s supplier numbers, and therefore I have no basis to reach this issue
in the present case. CMS Br. at 3-4. In essence, Petitioners are saying that their supplier
numbers should not be revoked because they did not need to have so many numbers to
start with. I can find no support for the position that a revocation is improper if the
underlying number was superfluous. As I have already pointed out, Petitioners were free
to terminate the numbers voluntarily but I see no basis to preclude CMS from revoking
them when the supplier standards are not met. I further agree with CMS that no
regulation provides authority for me to rule in the first instance on whether supplier
numbers should be consolidated. Jd. at 4 n.4.

CMS also argues on the merits that the multiple supplier numbers reflecting multiple
LTC facility locations where the supplies are delivered cannot properly be collapsed into
a single consolidated supplier number because a number of supplier standards can only
be met and monitored by treating the locations as separate suppliers. CMS Br. at 6-8;
Bromberg Decl. passim. Petitioners strongly contest CMS’s position as inconsistent with
CMS practice and unsupported by Medicare law or policy. P. Surreply at 1. According
to Petitioners, all applicable requirements can be met from a centralized location from
which supplies are furnished rather than requiring a physical location within each nursing
ome at which they are delivered to beneficiaries. Jd. at 2-5. I do not resolve the
propriety of consolidating some or all of Miller’s various DMEPOS supplier numbers
since I have concluded that the question is not properly before me. I disagree with
Petitioners that a finding that Medicare law permits a centralized location with a
consolidated number would legally moot the present dispute. As I have explained, the
permissibility of an alternative arrangement does not mean that CMS cannot revoke the
current supplier numbers for those Petitioners that have not complied with applicable
supplier standards. Although Petitioners assert that it is “unnecessary if not impossible,
in today’s Medicare enrollment system, to obtain separate supplier numbers” based on
each location serviced, Petitioners do not explain how they then found it possible to do so
for 22 years until they were required to comply with accreditation and surety bond
standards. Jd. at 5.

Finally, I note that Petitioners request that I waive “the timely filing limit for the claims
involved with these provider numbers that were never processed accurately,” on the
grounds that some claims are “just past the filing limit” and that Petitioners have been
“very diligent about our communication and attempts to get all paperwork in
appropriately and in a timely fashion.” HR. Petitioners nowhere propose any source of
authority for me to waive timely claims limits and the reference to numbers that were
“never processed accurately” suggests to me that Petitioners are referring to the
deactivated numbers which are not, as I discussed above, before me in this appeal.
Petitioners do not indicate whether they have ever made such a request to NSC or CMS.
I decline Petitioners’ invitation to instruct CMS and NSC to work with them to treat
unsubmitted claims as timely. P. Br. at 7.

14
VI. Conclusion

For the reasons explained above, I grant summary judgment in favor of CMS, and sustain
the revocation of Petitioners’ Medicare supplier numbers.

/s/
Leslie A. Sussan
Board Member


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Robert Young, M.D.
(NPI: 1962649483)

Petitioner
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-615
Decision No. CR2227
Date: August 27, 2010
DECISION

I reject the motion of the Centers for Medicare & Medicaid Services (CMS) to dismiss
the hearing request of Petitioner, Robert Young, M.D., for the reasons explained below.
As to the merits of this case, I decide this case on the written record and find that
Petitioner is entitled to an effective date of enrollment in the Medicare program of August
10, 2009, and is entitled to bill for services rendered as of July 11, 2009.

I. Background

This case arises from the efforts of Petitioner to enroll in Medicare with his payments
reassigned to a new physician group, Radnet, Inc. The process involved a number of
submissions by Petitioner to Palmetto GBA National Supplier Clearinghouse (NSC), a
Medicare contractor, two reconsideration decisions issued by NSC hearing officers, and
ultimate approval of Petitioner’s supplier number but with an effective date later than
Petitioner seeks. I outline first the chronological events in this process and address their
legal significance in my analysis.
Petitioner first submitted a CMS 855R application form! on April 25, 2009 in order to
reassign his payments to Radnet. Hearing Request, dated Apr. 8, 2010 (HR). Radnet
alleges, and CMS nowhere disputes, that it inquired on behalf of Petitioner to NSC about
the status of that application on July 27, 2009. See CMS Br. at 9. Again, it is undisputed
that an NSC representative informed Radnet during that call that Petitioner needed to also
submit a CMS 855] application form because Petitioner was not currently enrolled in
Medicare.” Jd. According to Petitioner, the NSC representative indicated that the CMS
855I had previously been requested via letter sent by NSC to Petitioner on June 30, 2009.
CMS Ex. 1, at 10.° Petitioner alleges that he did not receive that letter from NSC and had
no knowledge of the returned application prior to his telephone inquiry. CMS Ex. 1, at 2,
8, 10. The letter is in the record and indicates that Petitioner’s April 2009 application
was returned because it lacked forms needed to process a reassignment package, i.e., the
CMS 8551. CMS Ex. 1, at 10.

On July 31, 2009, Petitioner submitted a request for reconsideration of the return of his
CMS 855R for failure to provide requested information. CMS Ex. 1, at 7-8. Along with
the reconsideration request, Petitioner sent new CMS 855R and CMS 855] applications to
NSC. Jd. The request was directed to NSC to “whom it may concern.” Jd. The postal
service track and confirm results show receipt on August 10, 2009. CMS Ex. 1, at 6.
Petitioner describes these applications as appropriately completed (CMS Ex. 1, at 7-8),
and CMS has offered no disagreement with that characterization.

' Form CMS 855R is the Medicare enrollment application for the reassignment of
Medicare benefits. CMS Enrollment Applications, available at
http://www.cms.hhs.gov/MedicareProviderSupEnroll (“Enrollment Applications”).

? The form CMS 8551 is the individual Medicare enrollment application for physicians
and non-physician practitioners.

*>CMS Exhibit 1 consists of Petitioner’s hearing request and attached documents, namely:
Petitioner’s request for reconsideration letter dated February 3, 2010; NSC’s
reconsideration decision letter dated March 10, 2010; NSC’s request for reconsideration
form filled out by Petitioner, dated February 2010; U.S. Postal Service track and confirm
results showing delivery date of August 10, 2010; NSC’s request for reconsideration
form filled out by Petitioner, dated July 31, 2009; letter dated July 31, 2009 from Radnet,
Inc. to NSC stating that CMS 855I and CMS 855R forms are enclosed; letter dated April
25, 2009 from NSC indicating they received Petitioners enrollment application; letter
dated June 30, 2009 from NSC returning Petitioner’s application; letter dated October 28,
2009 from NSC indicating reconsideration request for the application returned on June
30, 2009 is denied; two letters dated December 18, 2009 from NSC indicating
Petitioner’s CMS 855 applications were received; letter dated January 27, 2010 from
NSC indicating Petitioner’s applications were processed to approval and an effective date
of November 17, 2009 was given.
In response to the reconsideration request on October 28, 2009, the contractor issued an
unfavorable decision. CMS Ex. 1, at 11. In regard to the CMS 855I and CMS 855R
applications submitted with the reconsideration request, the Medicare hearing officer
stated that they “cannot be considered in appeal decision. Once the approval [sic]
decision has been received, the provider will need to submit new applications with all
mandatory attachments for processing.” Jd.

On December 8, 2009, Petitioner resubmitted CMS 855R and CMS 855] applications
which NSC acknowledged receiving on December 18, 2009. CMS Ex. 1, at 3, 13. These
applications were processed to approval and an “effective date” of November 17, 2009
was given, which reflects the effective date of approval as the date of receipt by NSC
along with the 30-day retrospective billing period pursuant to 42 C.F.R. § 424.521 (a).
CMS Ex. 1, at 15.

By letter dated February 3, 2010, Petitioner requested reconsideration of the effective
date. CMS Ex. 1, at 2. NSC denied Petitioner’s request for reconsideration on March 10,
2010 stating that physicians “cannot appeal the effective date decision made by the
contractor.” CMS Ex. 1, at 4.

By letter dated April 8, 2010, Petitioner requested review of the refusal to change the
effective date and asked that I change his effective date of enrollment in the Medicare
program to March 1, 2009. By order dated April 14, 2010, I acknowledged the receipt
and docketing of Petitioner’s hearing request and set out procedures for developing the
record. In response to my order, CMS filed a motion to dismiss or, in the alternative,
motion for summary judgment (which I have referred to as CMS Br.) accompanied by
CMS exhibits (Exs.) 1 through 5.

Petitioner did not respond to CMS’s motion in a timely manner. After being contacted,
Petitioner’s representative informed my office that she had been out caring for a gravely
ill family member and was therefore behind in her work. Despite repeated calls and
messages over the following three weeks, Petitioner’s representative did not respond or
indicate any intention to submit any further material. Upon balancing the personal
circumstances of Petitioner’s representative with the fact that time is of the essence in this
case, rather than impose sanctions or summarily dismiss for abandonment, I ordered the
record in the case closed. Order Closing Record, issued July 22, 2010. No further
communication was received from Petitioner or his representative. Accordingly, I
proceed to rule on CMS’s motions based on the written record.

II. Applicable Law
The Social Security Act (Act) authorizes the Secretary of Health and Human Services

(Secretary) to promulgate regulations governing the enrollment process for providers and
suppliers. Act §§ 1102, 1866(j) [42 U.S.C. §§ 1302, 1395cc(j)]. Under the Secretary’s
regulations, a provider or supplier that seeks billing privileges under Medicare must
“submit enrollment information on the applicable enrollment application. Once the
provider or supplier successfully completes the enrollment process . .. CMS enrolls the
provider or supplier into the Medicare program.” 42 C.F.R. § 424.510(a).

The regulations specify that a “provider or supplier must submit a complete enrollment
application and supporting documentation to the designated Medicare fee-for-service
contractor,” and that the application include “complete . . . responses to all information
requested within each section as applicable to the provider or supplier type.” 42 C.F.R. §
424.510(d)(1)-(2).

The effective date of enrollment for physicians and physician groups is set by regulation
as follows:

The effective date for billing privileges for physicians . . . and physician
... 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 ... first began furnishing services at a new

practice location.

42 C.F.R. § 424.520(d). In addition, CMS permits limited retrospective billing as
follows:

Physicians . . . and physician . . . organizations may retrospectively bill for
services when a physician or... a physician . . . organization have met all
program requirements, including State licensure requirements, and services
were provided at the enrolled practice location for up to—

(1) 30 days prior to their effective date if circumstances precluded
enrollment in advance of providing services to Medicare beneficiaries, or
(2) 90 days [in certain emergencies.]

42 CFR. § 424.521 (a).

A prospective supplier “that is denied enrollment in the Medicare program . . . may
appeal CMS’ decision” in accordance with 42 C.F.R. Part 498. 42 C.F.R. § 424.545(a).
An appeal must be requested “in writing within 60 days from receipt of the notice of the
initial, reconsidered or revised determination unless that period is extended” by the judge
for “good cause shown” and receipt is presumed to be 5 days after the date on the notice
absent a contrary showing. 42 C.F.R. § 498.40(a)(2).
III. Issues

The issues before me are whether Petitioner has a right to appeal his effective date
determination and, if so, whether CMS properly determined the effective date of
Petitioner’s enrollment in the Medicare program.

IV. Findings of Fact and Conclusions of Law

My findings and conclusions are in the italicized headings supported by the subsequent
discussions below.

A. I reject CMS’s argument that Petitioner has no right to appeal the effective
date determination.

CMS sought dismissal arguing that the regulations do not permit appeals of effective date
determinations by suppliers whose enrollment is approved. CMS Br. at 11-17. I reject
this argument for the reasons explained here.

The Departmental Appeals Board (Board) recently addressed CMS’s argument about
effective date appeals in Victor Alvarez, M.D., DAB No. 2325 (2010). In Alvarez, the
Board concluded that “a determination of a supplier’s effective date of enrollment in
Medicare is an initial determination subject to appeal rights under 42 C.F.R. Part 498.”
Alvarez, DAB No. 2325, at 1. The Board explained that this determination is consistent
with the historical interpretation of hearing rights under section 1866(h)(1)(A) and as
discussed in the rulemaking process. Further, “while section 498.3(b)(15) originally
applied primarily to suppliers subject to survey and certification, the term ‘supplier’ as
used in 42 C.F.R. Part 498 was amended to cover all Medicare suppliers, including
physicians.” /d. at 3.

In several prior decisions, I also came to the same conclusion. See, e.g., Michael Majette,
D.C., DAB CR2142 (2010); Eugene Rubach, M.D., DAB CR2125 (2010); Mobile Vision,
Inc., DAB CR2124 (2010). I likewise concluded that 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. A legislative rule generally binds the agency that issues
it, and the agency is legally bound to follow its own regulations as long as they are in
force. Cal. Dep’t of Soc. Servs., DAB No. 1959 (2005); Hermina Traeye Mem’l Nursing
Home, DAB No. 1810 (2002), citing Kenneth Culp Davis and Richard J. Pierce, Jr.,
Administrative Law Treatise § 6.5 (3rd ed. 1994), aff’d Sea Island Comprehensive
Healthcare Corp. v. U.S. Dep’t of Health & Human Servs., 79 F. App’x 563 (4th Cir.
2003); 2 AM. JUR. 2d Administrative Law § 236 (2010), available at WL AM. JUR.
ADMINLAW § 236. Absent further rulemaking, I am bound to follow the plain meaning of
the regulation and, as the Board mandated, permit an appeal by any provider or supplier
dissatisfied with a determination as to the effective date of its provider agreement or
supplier approval.

I therefore deny CMS’s motion to dismiss on this basis.

B. I conclude that the effective date of Petitioner’s enrollment in the Medicare
program under the governing regulations is August 10, 2009, with
retroactive billing to July 11, 2009.

Petitioner seeks an effective date of March 1, 2009, the date requested in his initial CMS
855R application that was filed on April 25, 2009. Petitioner argues that “the Medicare
process for Provider Enrollment was adhered to as well as the several attempts made to
correct any issues that occurred albeit without confirmed notification to the provider.”
HR.

That initial CMS 855R application submitted in April 2009, however, was returned to
Petitioner because a CMS 855] application was necessary and not submitted. CMS Ex. 1,
at 10. Petitioner’s representative admitted in her request for reconsideration that Radnet
did not know that Petitioner was not enrolled in Medicare at that time and thus did not
submit a CMS 855] application. CMS Ex. 1, at 8. Petitioner therefore cannot claim that
the April 2009 application was improperly returned or could have been processed to
approval.

CMS states in its brief that “the only issue before this tribunal is to determine the date of
filing of the Medicare enrollment application that was subsequently approved by
Palmetto [GBA].” CMS Br. at 18. CMS argues that “[t]he undisputed facts in this case
show that the only Medicare application approved by Palmetto was filed by [Petitioner]
on December 18, 2009.” Jd.

It is not disputed, however, that Petitioner did submit both CMS 855R and CMS 8551
applications on July 31, 2009 with his request for reconsideration. NSC apparently did
not process those applications because they were sent to the wrong department.
Specifically, NSC states in its reconsideration decision letter that the CMS 855I and CMS
855R applications “cannot be considered in the appeal decision. Once the approval [sic]
decision has been received, the provider will need to submit new applications with all
mandatory attachments for processing.” CMS Ex. 1, at 11.

CMS further argues that “it is clear that the applications sent to the contractor’s appeals
department could not have been and were not processed and approved.” CMS Br. at 20.
I disagree. To begin with, CMS does not identify any respect in which the applications
that were submitted on July 31, 2009 were incomplete or different from the copies later
resubmitted and processed to approval in December 2009. In other words, it is not clear
that the applications could not have been processed and approved in August 2009. The
only reason that was given as to why the applications submitted in July 2009 were not
processed was that the applications were sent to the wrong department of the contractor.
CMS Br. at 20; CMS Ex. 1, at 11. The documents submitted do not show that Petitioner
directed the letter to a specific department, since CMS did not submit an envelope and the
tracking document only establishes that it was received at the zip code for NSC in
Augusta, Georgia.

Even assuming that the envelope was sent to the address on the reconsideration request
form, i.e., to Provider Enrollment Appeals, I find, and CMS points to, nothing in the
regulations that requires applications to be sent to a particular department of the
contractor, or that state that applications sent to the wrong department are not considered
“filed” with a Medicare contractor. Furthermore, the preamble of the regulation refers to
guidelines for contractors handling applications, as follows:

We fully expect that most enrollment applications will be processed in
accordance with CMS processing requirements found in Publication 100-8,
Chapter 10 of the Program Integrity Manual (PIM). The PIM establishes
processing standards for initial applications, changes of information, and
reassignments that all Medicare contractors must follow.

73 Fed. Reg. 36,448, 36,453 (June 27, 2008). The PIM states, in pertinent part:

The processing of an application generally includes, but is not limited to,
the following activities:

+ Receipt of the application in the contractor’s mailroom and forwarding it
to the appropriate office for review;

PIM, Ch. 10, § 2.9.

Here, it appears that the only reason the applications submitted on July 31, 2009 and
received on August 10, 2009 were not processed to approval by the contractor was
because the contractor did not forward them to the appropriate office for review, as the
PIM required. CMS has not explained why the attachment of the new applications to the
reconsideration request prevented the contractor from forwarding them for processing by
the appropriate department. I conclude that, contrary to CMS’s conclusory assertion, the
record discloses no reason that the applications could not have been both processed and
approved based on their receipt on August 10, 2009.

CMS also relies on Vincent Pirri, M.D., DAB CR2065 (2010), as a reason to deny an
earlier effective date, quoting the ALJ commenting “that Petitioner may have experienced
some delays, including those caused by the contractor . . . is not a basis” for the ALJ to
order Petitioner to be enrolled on a date that is earlier than the date when the contractor
received all of the information necessary to process Petitioner’s application. CMS Br. at
20. This language is inapposite to the situation here. I do not order that Petitioner be
enrolled on a date earlier than that on which the contractor received all of the information
necessary to process his application. On the contrary, I order precisely that the date when
the contractor received all the information necessary to process his application is the date
on which the regulations provide that his approval to enroll takes effect. The undisputed
evidence before me shows that that date was when the applications which he mailed on
July 31, 2009, were received by the contractor, i.e., August 10, 2009. The contractor may
have caused some delays in the processing of the applications by misdirecting them
internally, but that is not the reason that I hold that Petitioner is entitled to an earlier
effective date. I merely apply the regulations in determining the correct effective date.

It follows that the date on which Petitioner filed a Medicare enrollment application that
was complete and was subsequently approved is August 10, 2009. CMS Ex. 1, at 7-8.
Therefore, in accordance with 42 C.F.R. § 424.520(d), the “[e]ffective date for billing
privileges” is August 10, 2009, the “date of filing of a Medicare enrollment application
that was subsequently approved by a Medicare contractor.” Because CMS found it
appropriate to grant Petitioner the 30-day retroactive billing period (CMS Ex. 1, at 15)
under 42 C.F.R. § 424.521(a), I will do the same. Therefore, the first day of Petitioner’s
retroactive billing period is correspondingly adjusted to July 11, 2009.

V. Conclusion

For the reasons set forth above, I change the effective date of Petitioner’s enrollment in
the Medicare program to August 10, 2009, with a retroactive billing period to July 11,
2009.

/s/
Leslie A. Sussan
Board Member