Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Valley View Health Center,
(CCN: 31-5368),
Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-10-907
Decision No. CR2395

Date: July 12, 2011

DECISION

I grant the motion of the Centers for Medicare and Medicaid Services (CMS) for
summary judgment against Petitioner, Valley View Health Center. I sustain the per
instance civil money penalty (CMP) of $5,000 and the per day CMP of $50 per day for
the period of May 1 through May 9, 2010, for a total CMP amount of $5,450.

I. Background

Petitioner is a skilled nursing facility located in New Jersey. It participates in the
Medicare program. Petitioner’s participation in Medicare is governed by sections 1819
and 1866 of the Social Security Act (Act), as well as by implementing regulations at 42
C.F.R. Parts 483 and 488. Petitioner’s hearing rights are governed by regulations at 42
C.F.R. Part 498.

On April 29, 2010, the New Jersey State Department of Health and Senior Services
conducted a complaint survey of Petitioner to determine whether it was in compliance
with Medicare participation requirements. The surveyors determined that, among other
things, Petitioner was not complying substantially with certain Medicare requirements in
the area of nurse aide training, competency and registry verification and that Petitioner’s
noncompliance with these requirements constituted immediate jeopardy to resident health
and safety.' Specifically, CMS determined that Petitioner was out of compliance with the
Medicare requirements in the area of nurse aide training, competency and registry
verification pursuant to 42 C.F.R. §§ 483.75(b), (e)(4) and (e)(5)-(7).

The surveyors determined that Petitioner failed to operate and provide services in
compliance with all applicable federal, State and local laws, regulations and codes and
with professional standards and principles that apply to professionals providing services
in a long term care facility such as Petitioner’s. At the time of the survey, Petitioner
employed non-certified nurse aides. Petitioner also failed to ensure that seven out of
eight non-certified nurse aides hired since January 14, 2010, were enrolled in a state-
approved Nurse Aide Training and Competency Evaluation Program (NATCEP). The
surveyors further determined that Petitioner failed to obtain Multi-State registry
verification prior to employment for any of the 35 nurse aides hired from August 2009
through April 2010.

Petitioner timely requested a hearing challenging some of the deficiencies cited during
the April 29, 2010 survey: Tag F 492 (Compliance with federal, State and local laws);
and Tag F 495 (Nurse Aide Working less than four months-Training/Competency).” The
parties filed pre-hearing briefs (P. Br.; CMS Br.) Petitioner submitted two exhibits

' T will not review the immediate jeopardy finding. An Administrative Law Judge 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. 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 a nurse aide training program
since the facility has been assessed a CMP of $5,000 or more which precludes state
agency approval of a nurse aide training program. Act § 1819(f)(2)(B); 42 C.F.R.
§483.151(b)(2)(iv).

> Petitioner did not specifically address the deficiency cited for Tag F 496 (Nurse Aide
Registry Verification). The Statement of Deficiencies also cites five other deficiencies
with scope and severity levels of D and F (Tags F 157, 164, 309, 493 and 494), but
Petitioner did not contest them in its hearing request or discuss them in any of its later
submissions. Nor did Petitioner contest CMS’s determination to impose a CMP of $50
per day for the period of May 1, 2010 through May 9, 2010. Therefore, these unappealed
deficiencies establish a basis for imposing a $ 50 per day CMP, the lowest CMP that may
be imposed for that nine day period and I sustain CMS’s imposition of that remedy
without further discussion.

(P. Exs. 1-2); CMS submitted 21 exhibits (CMS Exs. 1-21). CMS included with its brief
a Motion for Summary Judgment.

1 initially set this matter for hearing but the parties requested a postponement. I granted
the parties’ request but I also reviewed CMS’s motion for summary judgment and
Petitioner’s response to that motion (P. Response). CMS contended that the present
matter turns on the interpretation of relevant federal and state law regarding the required
use and training of nurse aides. While Petitioner’s response argued that there were
material factual disputes, it did not clearly articulate which, if any, facts are disputed,
how they are material, and why in-person testimony would be necessary to resolve them.
l agreed with CMS that this matter involves legal issues for which an in-person hearing is
unnecessary. I concluded that this matter could be decided on the basis of the parties’
written briefs and submissions and cancelled the hearing. I allowed Petitioner the
opportunity to submit a supplemental brief which it did (P. Supp.).

IL. Issues
I consider whether summary judgment is appropriate.
On the merits, I consider:

(1) Whether, at the time of the survey on April 29, 2010, the facility was in
substantial compliance with Medicare requirements; and

(2) If the facility was not in substantial compliance, is the penalty imposed, a $5,000
per instance CMP reasonable?

III. 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 conclusion drawn from
applying the applicable law to the undisputed evidence establishes that
the facility was not in substantial compliance with 42 C.F.R. §§
483.75(b), (e)(4) and (e)(5)-(7) 2

While Petitioner contends that there are disputes of fact present, there simply are no
material facts in dispute here. Rather, this matter involves the parties’ differing
interpretations of the applicable law. In fact, Petitioner states in all of its submissions
that it does not and cannot dispute that seven out of eight nurse aides hired since January
14, 2010 and working at Petitioner facility at the time of the survey were not “certified,”
and were not enrolled in a Nurse Aide Training and Competency Evaluation Program
(NATCEP). Petitioner contends that the requirements are at best ambiguous and do not
require that nurse aides be enrolled ina NATCEP on “day one” of employment.
Petitioner agrees that enrollment in such a course by a non-certified nurse aide is a
requirement within the first 120 days of employment. But Petitioner’s position is that
because there is such turnover of nurse aides and since it contends that a NATCEP takes
only a few weeks at most to complete, its nurse aides were not always enrolled in a
NATCEP program until such time as it appeared that they were going to last as regular
employees. It claims that it still properly trained and supervised these employees,
although it did not have at its facility an approved NATCEP. And, finally, Petitioner’s

> My findings of fact and conclusions of law are set forth, in italics and bold, in the discussion

captions of this decision.

interpretation of the applicable law is that an uncertified nurse aide does not have to be
enrolled in a NATCEP as of the date of employment as long as the nurse aide enrolls in
and completes a NATCEP program before the completion of his or her 120th day of
employment.’ Petitioner further contends that no residents were harmed or injured as a
result of its practice.

I find that the applicable law is unambiguous. As a result I conclude that Petitioner was
not in compliance with Medicare requirements at 42 C.F.R. § 483.75(b) and 42 C.F.R.

§ 483.75(€)(4).

New Jersey statutes and regulations regulate the use of nurse aides in long-term care
facilities. The relevant section of the New Jersey Administrative Code provides, at N. J.
ADMIN. CODE § 8-39-43.1:

§ 8-39-43.1 Nurse aide competency

(a) An individual who meets any of the following criteria shall be considered by
the Department to be competent to work as a nurse aide in a licensed long-term
care facility in New Jersey:

1.

Has a currently valid nurse aide in long-term care facilities certificate
and is registered in good standing on the New Jersey Nurse Aide
Registry; or

Has been employed for less than 120 days and is currently enrolled in an
approved nurse aide in long term care facilities training course and
scheduled to complete the competency evaluation program (skills and
written/oral examination) within 120 days of employment; or

. Has been employed for no more than 120 days, has completed the

required training specified in (a) 2, above, and has been granted a
conditional certificate by the Department while awaiting clearance from
the criminal background investigation conducted in accordance with
N.J. ADMIN. CODE 8:431.

* Petitioner contends that a non-certified aide in its employ on April 29, 2010 for less
than 100 days could complete an NATCEP before his or her 120th day of employment as
these courses take only several hours to complete and are typically started and completed
over one to three weeks. The State requirements for a nurse aide training program
require 90 hours of training: 50 hours of classroom instruction and 40 hours of clinical
experience. N.J. ADMIN. CODE § 8-39-43.10(b). At the very least, even assuming that
someone enrolled in such a program attended full-time, it would require at least two and
one-half weeks to complete the course.
Moreover, 42 C.F.R. § 483.75(e)(4) provides that the facility must not use any individual
who has worked less than four months as a nurse aide unless the individual is a fulltime
employee in a State-approved training and competency evaluation program, has
demonstrated competence through satisfactory participation in a State-approved nurse
aide training and competency evaluation program, or because the individual met certain
deeming requirements not relevant here for a Certified Nurse Aide. 42 C.F.R.

§ 483.75(e)(5)-(7) further requires that, before allowing an individual to serve as a nurse
aide, a facility must receive registry verification that the individual has met competency
evaluation requirements unless the individual is a full-time employee in a NATCEP
approved by the State or the individual can prove that he or she has recently successfully
completed a NATCEP or competency evaluation program approved by the State and has
not yet been included in the registry.

I do not find any of these regulations to be ambiguous. They clearly require that any non-
certified nurse aide employed by a facility must be currently enrolled in a NATCEP and
must complete that program within 120 days of employment. This means enrolled as of
the date of hire. Interpreting the regulations as Petitioner would have me do ignores the
clear goal and purpose for the requirements in the first instance: to ensure that nursing
and nursing related services provided to vulnerable, elderly and frail nursing home
residents are provided by competent employees. This is not just a State requirement but a
federal requirement. In fact, section 1819(b)(5) of the Social Security Act imposes as a
requirement for any long term care facility participating in the Medicare program that any
nurse aide employed by that facility must have certain required training. The
interpretation set forth by Petitioner turns these requirements upside down, and having
done so, would invite dangerous situations. It would mean that nurse aides who have not
been certified and who are not yet currently enrolled in an approved NATCEP program
could provide services to residents as long as they somehow enroll and complete a
NATCEP before her or his 120th day of employment. Petitioner’s interpretation frankly
would lead to illogical and potentially perilous results.

Petitioner may argue that it provided training and supervision but even if it did, its
training and supervision was not the same as or equal to the kind of training provided by
an approved NATCEP in New Jersey. And Petitioner has not shown that there was
anything preventing Petitioner from setting up and seeking approval of a NATCEP from
the State if it wished to pursue its own training. But, in order to receive approval for a
New Jersey NATCEP, each student is required to be under the supervision of the
registered professional nurse instructor at all times when providing resident care as part
of the student’s clinical experience in the facility. N.J. ADMIN. CODE 8.39-43.10(p).°
Here, Petitioner admits that the non-certified nurse aides work under the supervision of
others, including RNs, several LPNs and their CNA supervisor but it does not contend
that supervision of non-certified nurse aides was limited to the kind of supervision
required under the state law for a state approved NATCEP and that the non certified aides
were supervised by a registered professional nurse instructor at all times when providing
resident care.

Petitioner disputes that the non-nurse aides were properly supervised by registered
nurses. Even accepting that fact as true, Petitioner failed to ensure that nurse aides hired
and who had worked less than 120 days were currently enrolled in a state approved
NATCEP prior to rendering resident care.°

Furthermore, CMS’s interpretation that a nurse aide must be currently enrolled in a
NATCEP and complete that program within 120 days of employment is further supported
by the regulations at 42 C.F.R. § 483.75(e)(5)-(7). That regulation provides as follows:

(e) Required training of nurse aides.
* * * *
(5) Registry verification. Before allowing an individual to serve as a nurse
aide, a facility must receive registry verification that the individual has met
competency evaluation requirements unless—
(i) The individual is a full-time employee in a training and
competency evaluation program approved by the State; or
(ii) The individual can prove that he or she has recently successfully
completed a training and competency evaluation program or
competency evaluation program approved by the State and has not
yet been included in the registry. Facilities must follow up to ensure
that such an individual actually becomes registered.

> NJ. ADMIN. CODE 8.39-43.10(m) requires a nurse aide training program
instructor/evaluator among other things to be currently licensed as a registered
professional nurse in New Jersey, possess at least three years of full-time or full-time
equivalent experience in a licensed health care facility and one year as a registered
professional nurse in a licensed long term care facility and have completed a training
workshop offered by New Jersey for instructors/evaluators. Petitioner does not contend
that its training of non-certified nurse aides was provided only by individuals with such
qualifications.

° On the date of the survey, April 29, 2010, one of the nurse aides providing care, nurse
aide 3, informed the surveyor that she had been working at the facility since January 2010
(specifically, January 14, 2010) yet she still was not currently enrolled in a NATCEP.
CMS Ex. 6 at 5.
(6) Multi-State registry verification. Before allowing an individual to serve
as a nurse aide, a facility must seek information from every State registry
established under sections 1819(e)(2)(A) of the Act . . .the facility believes
will include information on the individual.

(7) Required retraining. If, since an individual’s most recent completion of
a training and competency evaluation program, there has been a continuous
period of 24 consecutive months during none of which the individual
provided nursing or nursing-related services for monetary compensation,
the individual must complete a new training and competency evaluation
program or a new competency evaluation program.

The regulation here makes it abundantly clear that before an individual can serve as a
nurse aide, the facility must verify through nurse registries that the nurse aide has met all
competency evaluation requirements unless that individual is currently enrolled and
employed full time training and competency program approved by the State or has
successfully completed such a program and has not yet been included in the registry. The
facility, in the latter case, still must continue to follow up to ensure that such an
individual actually becomes registered. Therefore, if I were to accept Petitioner’s
interpretation, I would have to ignore the rest of the applicable regulatory requirements. I
am bound by all applicable regulations and appropriate regulatory construction requires
that all parts of a regulation be read together. Doing so here, the only rational
interpretation is that a non-certified nurse aide must be enrolled in a NATCEP on her or
his date of hire and must complete that program within 120 days of employment.

I also find that Petitioner did not meet the requirements under 42 C.F.R. § 483.75(e)(5)-
(7). The surveyors reviewed Petitioner’s records and found that it failed to obtain Multi-
State registry verification prior to employment for 35 of 35 nurse aides hired from August
2009 through April 2010. CMS Ex. | at 18. Petitioner fails even to address this
deficiency or to attempt a rebuttal of it. Therefore, I conclude that Petitioner was not in
substantial compliance with this requirement.

B. The penalty imposed is reasonable.

I next consider whether the $5,000 per instance 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 seg. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver
Spring, DAB No. 1638 at 8 (1999).

CMS has imposed just one $5,000 per instance CMP, which is in the middle 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. It
merely states that the CMP imposed is “extremely high for a rural 45 bed facility in
which no patients were harmed and the facility acted promptly to remedy the
deficiencies.” P. Supp. at 11.

However, that a CMP imposes “financial burden” or as Petitioner contends, is “extremely
high” 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, the standard for
determining whether a CMP is reasonable based on the facility’s financial condition
requires the facility to 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). Petitioner does not claim this degree of financial
insolvency. Therefore, 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. Here, there is no
dispute that Petitioner used non-certified nurse aides without training, without enrollment
in a certified nurse aide training and competency program and without proper
supervision, and, by its own admission, had done so for years. Moreover, Petitioner did
not dispute that it did not failed to obtain Multi-State registry verification prior to
10

employing 35 nurse aides hired from August 2009 through April 2010. These failures
evidence significant disregard for the residents’ safety, for which the facility is culpable.

I therefore find reasonable the $5,000 per instance CMP.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Miracle Mile Community Mental Health Center,
Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-239
Decision No. CR2390

Date: June 27, 2011

DECISION

I sustain the determination of the Centers for Medicare and Medicaid Services (CMS) to
revoke the Medicare billing privileges of Petitioner, Miracle Mile Community Mental
Health Center. Considering Petitioner has not come forward with any treatment records
to show that it was actively providing screening for patients being considered for
admission to state mental facilities, I find Petitioner was not providing a required core
service of a community mental health center (CMHC) necessary for its Medicare
provider enrollment.

I. Background

Petitioner is a CMHC in Miami, Florida. On March 19, 2010, SafeGuard Services (SGS)
conducted an on-site review on behalf of CMS at Petitioner’s facility. During the review,
Petitioner’s clinical director and Petitioner’s owner reportedly stated to the SGS
investigators that Petitioner was not providing children services but was planning to
provide such services once it was approved for Medicaid. CMS Exs. 5-7; CMS Ex. 14.
Further, Petitioner was also unable to produce any evidence that it screened patients for
possible admission to state mental health facilities, either directly or through a contract
with another facility. CMS Ex. 7, at 3; CMS Ex. 14, at 2-3; CMS Ex. 5. Thereafter, SGS
recommended that First Coast Service Options (FCSO), a CMS contractor, revoke
Petitioner’s Medicare provider number. On April 21, 2010, FCSO sent a letter notifying
Petitioner that FCSO was revoking its Medicare provider number and billing privileges,
effective the date of the on-site review, with a two-year reenrollment bar. CMS Ex. 3.
The revocation letter notified Petitioner that the basis for the revocation was due to
noncompliance with regulations and standards as specified at 42 C.F.R.

§ 424.535(a)(1). The revocation letter specifically noted that Petitioner was not
providing outpatient specialized children services and screening for patients being
considered for admission to state mental health facilities. Jd. The revocation letter also
informed Petitioner that it could request a reconsideration decision by sending the request
to CMS at an address in Baltimore, Maryland. CMS Ex. 3, at 2.

Petitioner submitted its reconsideration request to FCSO in Florida on or about May 26,
2010. CMS Ex. 2, at 6. FCSO does not perform reconsiderations determinations and
informed Petitioner on July 29, 2010 that Petitioner needed to send the reconsideration
request to CMS in Baltimore, Maryland. Jd. Eventually, CMS received Petitioner’s
reconsideration request at the Baltimore address on or about August 26, 2010. /d. at 12.
In its reconsideration request, Petitioner: stated that Dr. Carmen Bruno, a child
psychiatrist, was on staff prior to the site inspection; denied reported statements made by
its clinical director and owner to SGS investigators; and provided two outpatient
treatment records for children from October and December 2009. CMS Ex. 2. Also,
Petitioner attached two “Citrus Health Network, Inc. Screening Services Agreement[s]”
to its reconsideration request. CMS Ex. 2, at 29, 46.

On December 20, 2010, CMS sent an unfavorable decision letter to Petitioner confirming
FCSO’s decision to revoke Petitioner’s billing privileges. CMS Ex. 1. The decision
letter found that Petitioner was not in compliance with the requirements of a CMHC at 42
C.F.R. § 410.2 at or around the time that FSCO performed the on-site review. The
decision letter stated that SGS had determined that Petitioner was not providing two of
the four core services that would qualify it as a CMHC. Specifically, it found that SGS
ad determined that Petitioner did not have a contract with another agency or facility for
patient screening services for state mental facilities and that both Petitioner’s owner and
Petitioner’s clinical director stated that Petitioner was not going to provide children’s
outpatient services until Petitioner received a Medicaid number. In addition, the decision
letter concluded that Petitioner did not timely submit its reconsideration request to CMS.

On January 24, 2011, Petitioner filed a hearing request with the Civil Remedies Division
of the DAB to appeal the decision. In accordance with a prehearing order I sent, CMS
filed a motion to dismiss and supporting brief (CMS Br.), accompanied by 15 exhibits
(CMS Ex. 1-15), and CMS provided written direct testimony for one proposed witness.
Petitioner thereafter filed its brief (P. Br.), accompanied by seven attachments that I have
labeled as exhibits (P. Exs. 1-7).' Petitioner did not list any proposed witnesses and
accordingly did not include any written direct testimony. In accordance with the
prehearing order, a hearing in this matter was not necessary, as Petitioner did not request
to cross-examine CMS’s proposed witness. Therefore, I decide this case based on the
written record.

II. Applicable Law

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

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

(2) Provides 24-hour-a-day emergency care services;

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

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

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

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

' Petitioner did not label its attachments. I have labeled Petitioner’s attachments as:

Ex. 1 — Approval letter dated April 16, 2010 from Florida Medicaid to Dr. Bruno
Ex. 2 — Dr. Carmen Bruno’s attestation

Ex. 3 — Dr. Mario Aguado’s attestation

Ex. 4 — January 24, 2011 hearing request to the DAB

Ex. 5 — 2010 screening agreement with Citrus Health Network, Inc.

Ex. 6 — 2009 screening agreement with Citrus Health Network, Inc.

Ex. 7 — August 9, 2010 Request for Reconsideration

Mire ee
CMS may revoke a provider’s Medicare billing privileges if it determines, based on an
on-site review, that the provider is no longer operational to furnish Medicare covered
items or services, or is not otherwise meeting Medicare enrollment requirements. 42
C.F.R. § 424.535(a)(5)(i). Section 1866(j)(2) of the Social Security Act (Act) (42 U.S.C.
§ 1395cc(j)(2)) provides administrative and judicial hearing rights to providers or
suppliers whose Medicare billing privileges are revoked. CMS implemented section
1866(j) of the Act by providing for administrative hearing rights for revoked providers or
suppliers in 42 C.F.R. §§ 424.545, 405.874, and Part 498. These procedures provide for
a hearing before Administrative Law Judges (ALJs) of this forum and for review of the
resulting ALJ decisions by the appellate division of the DAB.

In provider appeals under section 1866(j)(1) of the Act and 42 C.F.R. Part 498, CMS
must make a prima facie showing that the provider or supplier has failed to comply
substantially with federal requirements. See Medisource Corp., DAB No. 2011 (2006).
To prevail, the provider must overcome CMS’s prima facie showing by a preponderance
of the evidence. Batavia Nursing and Convalescent Ctr., DAB No. 1904 (2004), aff'd,
Batavia Nursing and Convalescent Ctr. v. Thompson, 129 Fed. Appx. 181 (6th Cir.
2005).

II. Issues
The issues in this case are whether:
1. Petitioner’s hearing request is properly before me, and

2. CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and
billing privileges.

IV. Discussion

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

I. I decline to dismiss Petitioner’s hearing request.

CMS moved to dismiss Petitioner’s hearing request, arguing Petitioner requested an
untimely reconsideration decision, and therefore the hearing request is not properly
before me. CMS Br. at 2-3. A Petitioner must file with CMS a request for
reconsideration from an initial determination within 60 days of its receipt. See 42 C.F.R.
§ 498.22. Petitioner’s notice of revocation from FSCO was dated April 21, 2010. CMS
Ex. 2, at 14. Initially, Petitioner submitted its reconsideration request to FCSO on or
about May 26, 2010, well-within the required 60 days of receipt of the initial
determination. /d. at 6. However, FSCO instructed Petitioner to submit its
reconsideration request to CMS at an address in Baltimore, Maryland in the initial
determination letter. /d. at 15. Had Petitioner sent its reconsideration request to the
specified address, the request would have clearly been timely filed. Nonetheless, FSCO
did not forward Petitioner’s reconsideration request to CMS. Instead, by letter dated July
29, 2010, after the appeal period expired, FSCO notified Petitioner that it needed to send
its reconsideration request to CMS in Baltimore, Maryland. Jd. at 6. CMS ultimately
received the reconsideration request, sent from the Petitioner, on or about August 26,
2010. Id. at 12.

A December 20, 2010 response letter from CMS concluded that Petitioner had failed to
submit a timely reconsideration request to CMS and that, even if it assumed the
reconsideration request was timely, Petitioner had failed to provide outpatient specialized
children services and screening services for patients being considered for admission to
state mental health facilities. CMS Ex. 1.

As an extension of CMS, FSCO should have made an effort to forward Petitioner’s
reconsideration request to CMS, or at least notify Petitioner earlier, before the appeal
period had expired. Considering Petitioner’s good faith efforts to file a timely appeal to
its initial determination, and considering the December 20, 2010 CMS letter to Petitioner
still addressed the case’s substantive issues, I will recognize the CMS letter as a
reconsideration decision issued in response to a timely appeal. Petitioner’s January 24,
2010 hearing request to the DAB is thus filed timely within 60 days of the date of the
reconsideration decision. See 42 C.F.R. § 498.40. Under these circumstances, I decline
to dismiss Petitioner’s hearing request.

2. Petitioner was not providing screening for patients being considered for
admission to state mental health facilities, a required core service fora CMHC
to be enrolled in Medicare.

A CMHC must provide all four core services to meet the definition of a CMHC for
Medicare reimbursement. 42 C.F.R. § 410.2; see 42 U.S.C. § 300x-2(c)(1)(B)-(E).
Among other requirements, a CMHC must provide screening services, either directly or
through a contract with another entity, for patients being considered for admission to state
mental health facilities to determine the appropriateness of this admission. CMS
determined, on its on-site review, that Petitioner was not meeting this Medicare
enrollment requirement to provide Medicare covered services for Medicare patients.
Petitioner did not produce any evidence that it actively provided any screening services.
CMS Ex. 7, at 3; CMS Ex. 14, at 2-3; CMS Ex. 5. During the on-site review,

Petitioner’s owner reportedly told the SGS investigators that she had “transfer”
agreements with Citrus Health and Jackson Memorial, but she provided no
documentation of these agreements and reportedly offered no explanation regarding what
she meant by “transfer” agreements. CMS Ex. 14, at 3. Petitioner has now provided two
“Citrus Health Network Screening Services Agreement[s].” P Ex. 5; P. Ex. 6; CMS Ex. 2
at 29, 46.7 The 2010 agreement provided that it was “effective on the 1“ day of March,
2010,” however, it was signed and dated May 3, 2010, by the notary who attested to the
signatures of Petitioner’s clinical director and Petitioner’s president and owner. CMS Ex.
2, at 30-45. At no point has Petitioner come forward with any patient screening records
to show CMS or me that it provides the required screening services.

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

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

The May date of the notary’s signature on the 2010 screening agreement with Citrus
Health Network places the validity of the March 2010 effective date in doubt. I find it
notable that the agreement appears to be backdated to the month of the SGS on-site
review. Even if the 2010 screening agreement with Citrus Health Network was
indisputably valid, however, I find it is not enough for Petitioner to meet its burden by
only showing an agreement to provide this service without showing any patient treatment
records. Absent these records, I see no reason to make any judgment on the validity of
the screening agreement itself.

> Petitioner also provided these two Citrus Health Network agreements with its request
for reconsideration that it filed with CMS.
CMS’s brief also contends that Petitioner does not meet state certification requirements
for a CMHC in Florida? and that Petitioner does not provide outpatient services for
children. Considering Petitioner has not shown that it actively provided the core CMHC
service of screening patients for admission to state mental hospitals, a requirement for
Medicare enrolment and billing privileges, I decline to address these other arguments
because they would be immaterial to the outcome of this decision.

V. Conclusion

I sustain CMS’s determination to revoke Petitioner’s Medicare billing privileges on the
basis that it was it was not actually providing all the required core services of a CMHC
that are necessary for Medicare enrollment.

/s/
Joseph Grow
Administrative Law Judge

> For Medicare enrollment, a CMHC must meet applicable licensing or certification
requirements for CMHCs in the state in which it is located. See 42 C.F.R. § 410.2.
Florida law defines a CMHC as a “publicly-funded, not-for-profit center which contracts
with the [Florida Department of Children and Family Services] for the provision of
inpatient, outpatient, day treatment, or emergency services.” Fla. Stat. Ann § 394.455(6)
(2010). CMS argues that Petitioner was incorporated as a for-profit corporation and
therefore it should not be certified as a CMHC due to this noncompliance with the
Florida statute. CMS Exs. 11, 12, and 14.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Ifiok Akpan
(O.1. No. 2-09-40563-9),
Petitioner
v.
The Inspector General.
Docket No. C-11-241
Decision No. CR2392

Date: June 28, 2011

DECISION

Petitioner, Ifiok Akpan, asks review of the Inspector General’s (I.G.’s) determination to
exclude him for five years from participation in the Medicare, Medicaid, and all federal
health care programs under section 1128(a)(1) of the Social Security Act (Act). For the
reasons discussed below, I find that the I.G. is authorized to exclude Petitioner and that
the statute mandates a minimum five-year exclusion.

Discussion

The sole issue before me is whether the I.G. has a basis for excluding Petitioner from
program participation. Because an exclusion under section 1128(a)(1) of the Act must be
for a minimum period of five years, the reasonableness of the length of the exclusion is
not an issue. Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

The parties have submitted briefs (1.G. Br.; P. Br.), and the LG. filed a reply. With his
brief, the LG. submitted six exhibits (I.G. Exs. 1-6). In the absence of any objections, I
admit into evidence I.G. Exs. 1-6.
I directed the parties to indicate in their briefs whether an in-person hearing would be
necessary and, if so, to “describe the testimony it wishes to present, the names of the
witnesses it would call, and a summary of each witnesses’ proposed testimony.” I
specifically directed the parties to explain why the testimony would be relevant. Order
and Schedule for Filing Briefs and Documentary Evidence, Attachment | (Informal Brief
of Petitioner § III) and Attachment 2 (Informal Brief of I.G. { III) (February 11, 2011).
The L.G. indicates that an in-person hearing is not necessary. Petitioner, on the other
hand, contends that an in-person hearing is necessary and lists four witnesses that he
intends to call. For two of the witnesses, himself and his wife, he explains that their
testimony would show that his guilty plea to criminal charges was not voluntary. He
does not explain why he wants to call the other two witnesses, saying “information not
available at this time.” P. Br. at 3.

Thus, Petitioner offers only one justification for an in-person hearing — to challenge his
criminal conviction. As the following discussion explains, his criminal conviction may
not be collaterally attacked in this forum. 42 C.F.R. § 1001.2007(d); Joann Fletcher
Cash, DAB No. 1725 (2000). By regulation, I must exclude irrelevant or immaterial
evidence. 42 C.F.R. § 1005.17(c). Iam therefore obligated to exclude the testimony that
Petitioner proposes, so an in-person hearing would serve no purpose.

Petitioner must be excluded for five years because he was
convicted of a criminal offense related to the delivery of an
item or service under the Medicare or a state health
program, within the meaning of section 1128(a)(1) of the
Social Security Act.’

From December 2004 until September 2006, Petitioner worked for a home health agency
in New York State. Although he had no valid state nursing license, he worked as a
licensed practical nurse, and the agency billed the Medicaid program for his “nursing
services” as if they had been provided by a licensed nurse. The deception cost the State
Medicaid program $4,000 in damages. I.G. Ex. 2 at 2; I.G. Ex. 4 at 6; 1G. Ex. 5. In
November 2008, he was indicted on one felony count of grand larceny and one felony
count of unauthorized practice of nursing. I.G. Ex. 6. Pursuant to a plea agreement, on
May 7, 2009, he pled guilty in New York State Court to one misdemeanor count of
attempted criminal trespass, and the court accepted the plea. 1.G. Ex. 3; LG. Ex. 4 at 5-7;
LG. Ex. 5.

In a letter dated December 30, 2010, the I.G. advised Petitioner that, because he had been
convicted of a criminal offense related to the delivery of an item or service under the
Medicare or a state health care program, the I.G. was excluding him from participation in

' [make this one finding of fact/conclusion of law.
Medicare, Medicaid, and all federal health care programs for a period of five years. The
letter explained that section 1128(a)(1) of the Act authorizes such exclusion. I.G. Ex. 1.

Section 1128(a)(1) of the Act requires that the Secretary of Health and Human Services
exclude an individual who has been convicted under federal or state law of a criminal
offense related to the delivery of an item or service under Medicare or a state health care
program.” 42 C.F.R. § 1001.101.

Petitioner concedes that he was convicted of a criminal offense but argues that he was not
convicted of an offense for which an exclusion is required. According to Petitioner,
because he was convicted of attempted criminal trespass, his crime was not related to the
delivery of an item or service under Medicare or a state health care program. P. Br. at 2.

In determining whether a conviction is program-related within the meaning of section
1128(a)(1), I may look beyond both the language of the statute under which he was
convicted and the precise wording of his plea. An offense is related to the delivery of an
item or service under Medicare or a state health care program, if there is “a nexus or
common-sense connection” between the conduct giving rise to the offense and the
delivery of the item or service. Lyle Kai, R.Ph., DAB No. 1979 (2005); Berton Siegel,
D.O., DAB No. 1467 (1994). It is well-settled that the I.G. may rely on extrinsic
evidence to explain the circumstances underlying a conviction. The regulations
specifically provide that evidence of “crimes, wrongs, or acts other than those at issue in
the instant case is admissible in order to show motive, opportunity, intent, knowledge,
preparation, identity, lack of mistake, or existence of a scheme.” 42 C.F.R. §1005.17(g);
see Narendra M. Patel, DAB No. 1736 (2000); Tanya A. Chuoke, R.N., DAB No. 1721
(2000); Bruce Lindberg, D.C., DAB No. 1280 (1991).

Here, however, I need not even look at extrinsic evidence to find the necessary
connection between Petitioner’s crimes and the Medicaid program. In his plea
agreement, Petitioner conceded that, “from on or about December 29, 2004 to on or about
September 6, 2006,” he entered the homes of Medicaid recipients and remained there
unlawfully, causing $4,000 in damages to the New York State Medicaid program. I.G.
Ex. 2 at 2. He agreed to make restitution in that amount. LG. Ex. 4 at 5.

Petitioner was therefore convicted of a crime related to the delivery of an item under the
Medicaid program, and is subject to a minimum five-year exclusion. Act
§ 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

Petitioner also suggests that his plea was not voluntary and not adequately explained to
him by his attorney. He says that he held a nursing license from Nigeria, which he

° The term “state health care program” included a state’s Medicaid program. Act
§ 1128(h)(1), 42 U.S.C. § 1320a-7(h)(1).
thought was valid “for this position.” P. Br. at 3. According to the May 7, 2009 court
transcript, however, the state court judge carefully explained the consequences of his
guilty plea, and, under oath, Petitioner declared that his plea was voluntary and that he
was adequately represented by counsel. I.G. Ex. 4.

In any event, federal regulations explicitly preclude any collateral attack on Petitioner’s
conviction.

When the exclusion is based on the existence of a criminal conviction . . .
where the facts were adjudicated and a final decision was made, the basis
for the underlying conviction . . . is not reviewable and the individual or
entity may not collaterally attack it either on substantive or procedural
grounds, in this appeal.

42 C.F.R. § 1001.2007(d); Joann Fletcher Cash, DAB No. 1725; Chander Kachoria,
R.Ph., DAB No. 1380 at 8 (1993) (“There is no reason to ‘unnecessarily encumber the
exclusion process’ with efforts to reexamine the fairness of state convictions.”); Young
Moon, M.D., DAB CR1572 (2007).

Conclusion

The I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all
federal health care programs, and the statute mandates a five-year minimum period of
exclusion.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Omni Manor Nursing Home
(CCN: 365433),
Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-373
Decision No. CR2391

Date: June 27, 2011

DECISION

I sustain the determination of the Centers for Medicare and Medicaid Services
(CMS) to impose civil money penalties of $550 per day against Petitioner, Omni
Manor Nursing Home, for each day of a period that began on April 24, 2008 and
that ran through May 21, 2008.

I. Background

Petitioner is a skilled nursing home in the State of Ohio. It participates in
Medicare, and its participation is subject to the requirements of sections 1819 and
1866 of the Social Security Act as well as to implementing regulations at 42
C.F.R. Parts 483 and 488. Its hearing rights are governed by regulations at 42
C.F.R. Part 498.

This case began with a determination by CMS that Petitioner failed to comply
substantially with Medicare participation requirements. CMS determined to
impose civil money penalties against Petitioner of $550 per day for each day of a
period that began on April 24, 2008 and that ran through May 21, 2008. Petitioner
requested a hearing, and the case was assigned originally to another administrative
law judge.

Petitioner then conceded that it had failed to comply substantially with Medicare
participation requirements. It also conceded that the $550 per day civil money
penalty amount was reasonable. It persisted, however, in challenging the duration
of the remedy, arguing that it had attained compliance with Medicare participation
requirements on April 29, 2008.

After a period of time, the case was reassigned to me for a hearing and a decision.
I issued summary judgment in favor of CMS. Petitioner appealed the case to the
Departmental Appeals Board (Board), and a Board appellate panel remanded the
case to me, ordering that I afford Petitioner a hearing on the issue of duration.
Petitioner then waived its right to an in-person hearing. I granted the parties a
final round of briefing.

All of the exhibits that the parties proffered were received previously by me and
remain in the record of the case. These were previously identified by the parties
and received as CMS Ex. 1 — CMS Ex. 24 and P. Ex. 1 — P. Ex. 49. Petitioner,
however, submitted on May 2, 2011 a declaration from Paulette Trexler,
Petitioner’s Quality Assurance Director, together with P. Ex. 49, and a new exhibit
marked as P. Ex. 50.

II. Issue, Findings of Fact, and Conclusions of Law
A. Issue

The sole issue in this case is the duration of Petitioner’s noncompliance with
Medicare participation requirements.

B. Findings of Fact and Conclusions of Law

For the reasons that I discuss below, I find that Petitioner was substantially
noncompliant with Medicare participation requirements from April 24 through
May 21, 2008.

Where there is noncompliance, the burden is on the facility to prove that it came
back into compliance. Texan Nursing and Rehabilitation of Amarillo, LLC, DAB
No. 2323 (2010). Simply asserting that compliance was achieved by a particular
date is insufficient to satisfy this burden. Nor is documentation that staff attained
in-service training sessions or that other forms of training were provided to staff
necessarily proof of compliance, where the noncompliance consisted of staff
failures to provide nursing care to residents that is consistent with regulatory
requirements. Proof that the staff attended training sessions is not proof that the
staff actually provided care in compliance with the training that they received.
That is particularly the case where a staff’s failures include failures to comply with
an explicit order by a physician, or with facility protocols and policies that had
been in effect previously. In that circumstance, simply telling an employee to
comply with a directive is never proof that the employee is actually doing so.

Petitioner did not prove that it attained compliance with all regulatory
requirements prior to May 21, 2008. The evidence that Petitioner relies on to
show compliance consists largely of documents showing that staff were retrained
or instructed to do their jobs correctly. What is singularly lacking from
Petitioner’s evidence is proof that the staff actually implemented, at any date prior
to May 21, the training that was provided to them.

For example, CMS found — and Petitioner does not deny — that Petitioner failed to
comply substantially with the requirements of 42 C.F.R. § 483.25. This regulation
requires a skilled nursing facility to provide each of its residents with the
necessary care and services to attain the highest practicable physical, mental, and
psychosocial well-being, in accordance with the resident’s comprehensive
assessment and plan of care. The unchallenged evidence of noncompliance is that
Petitioner failed to provide respiratory care to a resident who is identified as
Resident # 180. CMS Ex. 5 at 5-8. This evidence shows that, between about 4
and 5 a.m. on April 9, 2008, the nursing staff failed to recognize obvious signs that
the resident was in respiratory distress (the resident had a respiratory rate of 32
breaths per minute) and failed to keep close watch on the resident and record their
observations. The staff did not intervene until after the resident became non-
responsive. Jd. at 7-8. The staff failed to perform their duty to protect the
resident, despite a physician’s order that had been issued at 4 a.m. on April 9 that,
among other things, directed the staff to transfer the resident to a hospital if the
resident showed continued signs of respiratory distress.

What this unchallenged evidence shows, then, is failure by a staff to: comply with
an explicit order by a physician; recognize the clinical signs and symptoms of
respiratory distress; document those signs and symptoms; and take immediate
action necessary to protect the resident’s welfare. Given the nature of this
noncompliance, evidence that the staff was ordered to do better and was given
retraining would not be persuasive proof that the staff did what they had been
ordered to do. What is required is proof that that the staff actually implemented
the training and directives that they received. Such proof might consist of
evidence of actual treatment provided by the staff in circumstances that are
analogous to those that are the basis for the finding of deficiency or of observation
of the staff showing that the staff did what they had been instructed to do.

Here, Petitioner’s evidence consists of proof that the staff members, who were
culpable for the treatment failures in the case of Resident # 180, were disciplined
coupled with proof that nursing staff attended retraining sessions. Petitioner’s
Final Brief at 4. Additionally, Petitioner implemented an audit form that would be
utilized to monitor staff’s performance of their duties to assure that changes in
residents’ conditions were properly detected and observed. Jd. These measures
may have been necessary elements of assuring compliance. But, their
implementation is not proof that Petitioner attained compliance.

The measures that Petitioner relies on as proof that it attained compliance prior to
May 21 consist in large measure of documentation that staff were told to do better
and retrained. As I have explained, evidence of this type does not consist of
evidence that these measures — as necessary as they may have been — were actually
implemented in actual cases.

As for the audits that Petitioner asserted it performed of its staff, it has not offered
documentary evidence of the results of those audits that prove that staff was
actively monitored, and their performance measured against applicable standards
of care. There is no proof, for example, that staff was observed providing care in
individual instances of problems analogous to those experienced by Resident

# 180 and that detailed observations of staff performance were made to assure that
the staff were performing their duties appropriately. The audit forms that
Petitioner introduced consist of cursory entries showing that, with certain
residents, nurses on duty noted changes in the residents’ conditions. P. Ex. 49 at
10-12. They do not consist of detailed observations about what the nurses saw,
how they recognized changes in the residents’ conditions, how they monitored
these changes, what care they provided, and what consultation they engaged in. I
find that these forms are simply not proof that staff was complying with
professionally recognized standards of care in providing care to these residents.

I note also that Petitioner averred in its Plan of Correction that the audits would be
performed for a period of one month after completion of staff retraining. CMS Ex.
5 at 1,6. The inference I draw from that is that Petitioner’s own management was
not confident that retraining alone would produce instantaneous compliance by
staff but that there would be a necessary period of observation and, if necessary,
correction to assure that all staff were in compliance with necessary participation
requirements.

As another example, it is undisputed that Petitioner was found not to be complying
substantially with the requirements of 42 C.F.R. § 483.25(d). In pertinent part, the
regulation requires a facility to ensure that a resident who is incontinent of bladder
receives appropriate treatment and services to prevent urinary tract infections and
to restore as much normal bladder function as possible. The undisputed facts
establish that Petitioner violated these regulatory requirements in that it failed to
promptly discontinue the use of a urinary tract catheter (Foley catheter) for a
resident (Resident # 102) and failed also to provide appropriate incontinence care
to another resident (Resident # 4).

Petitioner asserts that it addressed this deficient care by: reviewing the records of
all residents with catheters to assure that the residents continued to require them;
providing in-service training to all nursing staff on April 25, 28, and 29, 2008 to
assure that the staff were instructed in the circumstances under which Foley
catheters should be discontinued; monitoring the residents to assure that that
catheters were removed promptly when no longer medically needed; providing
immediate in-service training to two nursing assistants concerning infection
control during resident care; and providing in-service training to all nurse aide
staff on April 22 and “continuing to” April 29, 2008 on appropriate incontinence
care. Petitioner’s Final Brief at 5-6.

In fact, and Petitioner’s assertions notwithstanding, Petitioner did not prove that
all of its nurse aides attended the in-service sessions. P. Ex. 48 at 18-22.
Petitioner’s own record of its in-service training shows that numerous individuals
failed to sign the attendance form. That failure of proof, in and of itself, is
sufficient for me to conclude that Petitioner did not attain compliance with all
participation requirements prior to May 22, 2008.

Moreover, the fact that nurse aides were retrained in providing incontinence care
is not by itself proof that they implemented the training that was given to them.
Presumably, all of these aides had received training in providing incontinence care
prior to April 24, 2008, and that training was insufficient to assure that they
provided appropriate care. Given that, the fact that these aides received additional
training, by itself, is hardly proof that they adhered to that training. Petitioner has
not provided proof that its management personally observed the aides after they
were retrained and assured that they applied their training correctly.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Grace Akpan
(O.1. No. 2-09-40563-9),
Petitioner
v.
The Inspector General.
Docket No. C-11-228
Decision No. CR2389

Date: June 27, 2011

DECISION

Petitioner, Grace Akpan, asks review of the Inspector General’s (1.G.’s) determination to
exclude her for five years from participation in the Medicare, Medicaid, and all federal
health care programs under section 1128(a)(1) of the Social Security Act (Act). For the
reasons discussed below, I find that the I.G. is authorized to exclude Petitioner and that
the statute mandates a minimum five-year exclusion.

Discussion

The sole issue before me is whether the I.G. has a basis for excluding Petitioner from
program participation. Because an exclusion under section 1128(a)(1) of the Act must be
for a minimum period of five years, the reasonableness of the length of the exclusion is
not an issue. Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

The parties have submitted briefs (1.G. Br.; P. Br.), and the LG. filed a reply. With his
brief, the LG. submitted six exhibits (I.G. Exs. 1-6). In the absence of any objections, I
admit into evidence I.G. Exs. 1-6.
I directed the parties to indicate in their briefs whether an in-person hearing would be
necessary and, if so, to “describe the testimony it wishes to present, the names of the
witnesses it would call, and a summary of each witnesses’ proposed testimony.” I
specifically directed the parties to explain why the testimony would be relevant. Order
and Schedule for Filing Briefs and Documentary Evidence, Attachment | (Informal Brief
of Petitioner § III) and Attachment 2 (Informal Brief of I.G. { III) (February 11, 2011).
The L.G. indicates that an in-person hearing is not necessary. Petitioner, on the other
hand, contends that an in-person hearing is necessary and lists four witnesses that she
intends to call. For two of the witnesses, herself and her husband, she explains that their
testimony would show that her guilty plea to criminal charges was not voluntary. She
does not explain why she wants to call the other two witnesses, saying “information not
available at this time.” P. Br. at 3.

Thus, Petitioner offers only one justification for an in-person hearing — to challenge her
criminal conviction. As the following discussion explains, her criminal conviction may
not be collaterally attacked in this forum. 42 C.F.R. § 1001.2007(d); Joann Fletcher
Cash, DAB No. 1725 (2000). By regulation, I must exclude irrelevant or immaterial
evidence. 42 C.F.R. § 1005.17(c). Iam therefore obligated to exclude the testimony that
Petitioner proposes, so an in-person hearing would serve no purpose.

Petitioner must be excluded for five years because she was
convicted of a criminal offense related to the delivery of an
item or service under the Medicare or a state health
program, within the meaning of section 1128(a)(1) of the
Social Security Act.’

From November 2004 until March 2006, Petitioner worked for a home health agency in
New York State. Although she had no valid state nursing license, she worked as a
licensed practical nurse, and the agency billed the Medicaid program for her “nursing
services” as if they had been provided by a licensed nurse. The deception cost the State
Medicaid program $4,000 in damages. I.G. Ex. 2 at 2; 1.G. Ex. 4 at 9; 1G. Ex. 5. In
November 2008, she was indicted on one felony count of grand larceny and one felony
count of unauthorized practice of nursing. I.G. Ex. 6. Pursuant to a plea agreement, on
May 7, 2009, she pled guilty in New York State Court to one misdemeanor count of
attempted criminal trespass, and the court accepted the plea. I.G. Ex. 3; LG. Ex. 4 at 6-9;
LG. Ex. 5.

In a letter dated December 30, 2010, the I.G. advised Petitioner that, because she had
been convicted of a criminal offense related to the delivery of an item or service under
the Medicare or a state health care program, the I.G. was excluding her from participation

' [make this one finding of fact/conclusion of law.
in Medicare, Medicaid, and all federal health care programs for a period of five years.
The letter explained that section 1128(a)(1) of the Act authorizes such exclusion. I.G.
Ex. 1.

Section 1128(a)(1) of the Act requires that the Secretary of Health and Human Services
exclude an individual who has been convicted under federal or state law of a criminal
offense related to the delivery of an item or service under Medicare or a state health care
program.” 42 C.F.R. § 1001.101.

Petitioner concedes that she was convicted of a criminal offense but argues that she was
not convicted of an offense for which an exclusion is required. According to Petitioner,
because she was convicted of attempted criminal trespass, her crime was not related to
the delivery of an item or service under Medicare or a state health care program. P. Br. at
2.

In determining whether a conviction is program-related within the meaning of section
1128(a)(1), I may look beyond both the language of the statute under which she was
convicted and the precise wording of her plea. An offense is related to the delivery of an
item or service under Medicare or a state health care program, if there is “a nexus or
common-sense connection” between the conduct giving rise to the offense and the
delivery of the item or service. Lyle Kai, R.Ph., DAB No. 1979 (2005); Berton Siegel,
D.O., DAB No. 1467 (1994). It is well-settled that the I.G. may rely on extrinsic
evidence to explain the circumstances underlying a conviction. The regulations
specifically provide that evidence of “crimes, wrongs, or acts other than those at issue in
the instant case is admissible to show motive, opportunity, intent, knowledge,
preparation, identity, lack of mistake, or existence of a scheme.” 42 C.F.R. §1005.17(g);
see Narendra M. Patel, DAB No. 1736 (2000); Tanya A. Chuoke, R.N., DAB No. 1721
(2000); Bruce Lindberg, D.C., DAB No. 1280 (1991).

Here, however, I need not even look at extrinsic evidence to find the necessary
connection between Petitioner’s crimes and the Medicaid program. In her plea
agreement, Petitioner conceded that “from on or about November 23, 2004 to on or about
March 7, 2006,” she entered the homes of Medicaid recipients and remained there
unlawfully, causing $4,000 in damages to the New York State Medicaid program. I.G.
Ex. 2 at 2. She admitted in open court that her crime had cost the New York State
Medicaid program $4,000 in damages and agreed to make restitution in that amount. I.G.
Ex. 4 at 9.

° The term “state health care program” included a state’s Medicaid program. Act
§ 1128(h)(1), 42 U.S.C § 1320a-7(h)(1).
She was therefore convicted of a crime related to the delivery of an item under the
Medicaid program and is subject to a minimum five-year exclusion. Act
§ 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

Petitioner also suggests that her plea was not voluntary and not adequately explained to
her by her attorney. She says that she held a nursing license from Nigeria, which she
thought was valid “for this position.” P. Br. at 3. According to the May 7, 2009 court
transcript, however, the state court judge took great pains to ensure that her plea was
voluntary. After explaining the significance of her guilty plea, he gave her an additional
opportunity to consult with her attorney. I.G. Ex. 4 at 4-6. Under oath, she agreed that
she had ample time to discuss the plea with her attorney, was satisfied with his services,
gave up her right to appeal the conviction, was pleading guilty voluntarily of her own free
will, and was freely giving up her right to a trial. 1.G. Ex. 4 at 7-8. After all of that, the
judge gave her a final opportunity to withdraw her plea, and she repeated that she wished
to plead guilty. LG. Ex. 4 at 10.

In any event, federal regulations explicitly preclude any collateral attack on Petitioner’s
conviction.

When the exclusion is based on the existence of a criminal conviction . . .
where the facts were adjudicated and a final decision was made, the basis
for the underlying conviction . . . is not reviewable and the individual or
entity may not collaterally attack it either on substantive or procedural
grounds, in this appeal.

42 C.F.R. § 1001.2007(d); Joann Fletcher Cash, DAB No. 1725; Chander Kachoria,
R.Ph., DAB No. 1380 at 8 (1993) (“There is no reason to ‘unnecessarily encumber the
exclusion process’ with efforts to reexamine the fairness of state convictions.”); Young
Moon, M.D., DAB CR1572 (2007).

Conclusion

The I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all
federal health care programs, and the statute mandates a five-year minimum period of
exclusion.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Akram Ismail
(PTAN 698444),
Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-326
Decision No. CR2387

Date: June 23, 2011

DECISION

The Medicare enrollment and billing privileges of Petitioner, Akram Ismail, are revoked,
effective May 4, 2010, for noncompliance with enrollment requirements and failure to
report adverse legal action.

I. Background

The Centers for Medicare and Medicaid Services (CMS) notified Petitioner by letter
dated August 4, 2010, that his Medicare enrollment and billing privileges were revoked,
effective May 4, 2010, pursuant to the Social Security Act (the Act) § 1861(r) (42 U.S.C.
§ 1395x(r)) and 42 C.F.R. § 424.535(a)(1) due to the suspension of his New Jersey
medical license; and pursuant to 42 C.F.R. § 424.516 (d)(1)(ii) due to his failure to report
adverse legal action to CMS. CMS Exhibit (CMS Ex.) 1.

Petitioner’s October 4, 2010 request for reconsideration of the initial revocation decision
was received by the CMS contractor on October 7, 2010. CMS Ex. 2. On December 29,
2010, a contractor hearing officer issued a reconsideration decision revoking Petitioner’s
billing privileges. CMS Ex. 7.

On March 3, 2011, Petitioner requested a hearing before an Administrative Law Judge
(ALJ). This case was assigned to me for hearing and decision. I issued an
Acknowledgment and Prehearing Order on March 7, 2011. On April 7, 2011, CMS filled
a Motion for Summary Judgment (CMS Br.) with CMS Exs. 1 through 10. On May 5,
2011, Petitioner filed a Brief in Opposition to CMS’s Motion for Summary Judgment (P.
Br.) with Petitioner’s exhibits (P. Exs.) 1 through 3. CMS filed a Reply Brief (CMS
Reply) on May 20, 2011. The parties have filed no objections to CMS Exs. | through 10
and P. Exs. | through 3 and they are admitted. Petitioner requested an oral hearing and
oral argument on the motion. P. Br. at 11-12. However, summary judgment is
appropriate and no oral hearing is necessary. Further, both parties have filed their briefs
on the motion and Petitioner offers no explanation for how oral argument will aide my
understanding of the parties’ arguments or assist my ruling or decision. The motion for
oral argument is, therefore, denied.

II. Discussion
A. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the
supplementary medical insurance benefits program for the aged and disabled known as
Medicare Part B. Payment under the program for services rendered to Medicare-eligible
beneficiaries may only be made to eligible providers of services and suppliers.' Act

§§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).
Administration of the Part B program is through contractors. Act § 1842(a) (42 U.S.C.
§ 1395u(a)).

The Act requires the Secretary of Health and Human Services (the Secretary) to issue
regulations that establish a process for the enrollment of providers and suppliers,

A “supplier” furnishes services under Medicare and the term supplier applies to

physicians or other practitioners and facilities that are not included within the definition
of the phrase “provider of services.” Act § 1861(d) (42 U.S.C. § 1395x(d)). A “provider
of services,” commonly shortened to “provider,” includes hospitals, critical access
hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities,
home health agencies, hospice programs, and a fund as described in sections 1814(g) and
1835(e) of the Act. Act § 1861(u) (42 U.S.C. § 1395x(u)). The distinction between
providers and suppliers is important because they are treated differently under the Act for
some purposes.
including the right to a hearing and judicial review in the event of denial or non-renewal.
Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505, a provider or
supplier must be enrolled in the Medicare program and be issued a billing number to have
billing privileges and to be eligible to receive payment for services rendered to a
Medicare eligible beneficiary. If enrollment is approved, a supplier is issued a National
Provider Identifier (NPI) to use for billing Medicare and a PTAN, an identifier of the
supplier for inquiries. Medicare Program Integrity Manual (MPIM), CMS Publication
100-08, Chapter 10, Healthcare Provider/Supplier Enrollment, § 6.1.1.

Qualified physician services are covered by Medicare Part B, subject to some limitations
for those physicians enrolled in Medicare. Act §§ 1832(a) (42 U.S.C. § 1395k(a));
1861(s)(1) (42 U.S.C. § 1395x(s)(1)). “Physician’s services” are professional services
performed by physicians, including surgery, consultation, and home, office, and
institutional calls (with certain exceptions). Act § 1861(q) (42 U.S.C. § 1395x(q)). The
term “physician,” when used in connection with the performance of any function or
action, includes a doctor of medicine or osteopathy, a doctor of dental surgery or dental
medicine, a doctor of podiatric medicine, a doctor of optometry, and a chiropractor, if
legally authorized to practice medicine and surgery by the state in which he or she
performs such function or action and subject to the limitations specified in the Act. Act
§ 1861(r) (42 U.S.C. § 1395x(r)); 42 C.F.R. § 410.20(b). The Medicare program
authorizes Medicare Part B payments for services provided by physicians. 42 C.F.R.

§ 410.20. A physician who wants to bill Medicare or its beneficiaries for Medicare-
covered services or supplies must enroll in the Medicare program. 42 C.F.R. § 424.505.

CMS may revoke an enrolled provider’s or supplier’s Medicare billing privileges and any
provider or supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535.
Pursuant to 42 C.F.R. § 424.535(a)(1), CMS may revoke a provider’s or supplier’s
enrollment if it is determined that the provider or supplier is not in compliance with
enrollment requirements and fails, after being given the opportunity, to achieve
compliance before a final determination to revoke billing privileges. Pursuant to 42
C.F.R. § 424.535(a)(9), billing privileges may also be revoked for failure to report the
information required by 42 C.F.R. § 424.516(d)(1)(ii) and (iii). Physicians, non-
physician practitioners, and organizations of such individuals must report the following
events to the appropriate CMS contractor within 30 days and other changes in enrollment
must be reported within 90 days: (1) change of ownership; (2) any adverse legal action;
or (3) a change in practice location. The effective date of revocation of billing privileges
in the case of license suspension or revocation is the date of the license suspension or
revocation. 42 C.F.R. § 424.535(g). The Act provides for a hearing by an ALJ and
judicial review of the determination to deny enrollment or re-enrollment. Act

§ 1866(j)(2).

B. Issues
The issues in this case are:
Whether summary judgment is appropriate; and

Whether there is a basis for the revocation of Petitioner’s Medicare
enrollment and billing privileges.

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

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

1. Summary judgment is appropriate.

CMS has requested summary judgment. The Secretary’s regulations that establish the
procedure to be followed in adjudicating Petitioner’s case are at 42 C.F.R. Part 498. 42
C.F.R. § 424.545(a)(1). The regulations do not establish a summary judgment procedure
or recognize such a procedure. However, the Departmental Appeals Board (the Board)
has long accepted that summary judgment is an acceptable procedural device in cases
adjudicated pursuant to 42 C.F.R. Part 498. The Board has also recognized that the
Federal Rules of Civil Procedure are not applicable in administrative adjudications such
as this, but the Board has accepted that Federal Rule of Civil Procedure 56 and related
cases provide useful guidance for determining whether summary judgment is appropriate.

Summary judgment is appropriate when there is no genuine dispute as to any issue of
material fact for adjudication and/or the moving party is entitled to judgment as a matter
of law. In determining whether there are genuine issues of material fact for trial, the
reviewer must view the evidence in the light most favorable to the non-moving party,
drawing all reasonable inferences in that party’s favor. The party requesting summary
judgment bears the burden of showing that there are no genuine issues of material fact for
trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant
may not defeat an adequately supported summary judgment motion by relying on upon
the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a
material fact, i.e., a fact that would affect the outcome of the case if proven. Senior
Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein). The
standard for deciding a case on summary judgment and an ALJ’s decision-making in
deciding a summary judgment motion differs from resolving a case after a hearing. On
summary judgment, the ALJ does not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the evidence, as would be done when
finding facts after a hearing on the record. Rather, on summary judgment the ALJ
construes the evidence in a light most favorable to the non-movant and avoids deciding
which version of the facts is more likely true. Holy Cross Vill. at Notre Dame, Inc, DAB
No. 2291 at 5 (2009). The Board has also recognized that on summary judgment it is
appropriate for the ALJ to consider whether a rational trier of fact could find that the
parties’ evidence would be sufficient to meet that party’s evidentiary burden. Dumas
Nursing and Rehab., L.P., DAB No. 2347, at 5 (2010). The Secretary has not provided
for the allocation of the burden of persuasion or the quantum of evidence in 42 C.F.R.
Part 498. However, the Board has provided some persuasive analysis regarding the
allocation of the burden of persuasion in cases subject to 42 C.F.R. Part 498. Batavia
Nursing and Convalescent Ctr., DAB No. 1904 (2004), aff'd, Batavia Nursing &
Convalescent Ctr. v. Thompson, 129 Fed. App'x 181 (6th Cir. 2005).

The material facts in this case, as discussed hereafter, are not disputed and there is no
genuine dispute as to any material fact that requires a trial. In fact, Petitioner concedes
that the facts are not disputed but requests an oral hearing and oral argument on the CMS
motion. P. Br. at 11-12.? Although Petitioner did not specifically request summary
judgment in his favor, that is indeed the gist of his argument and I have carefully
considered whether summary judgment in favor of Petitioner may be appropriate. The
issues in this case that require resolution, are issues of law related to the interpretation
and application of the regulations that govern the revocation of enrollment and billing
privileges in the Medicare program to the undisputed facts of this case. Accordingly,
summary judgment is appropriate.

“ Petitioner states that he would testify regarding his Florida license renewal and the
requirements that he had to meet to qualify to have his license renewed through 2013,
including continuing medical education and updating his practice profile. Petitioner
states that a representative of the Florida Department of Health would testify that
Petitioner’s Florida license is still active, that Petitioner is complying with all Florida
licensure and regulatory requirements, and that Petitioner is abiding by the terms of the
suspension of his license. P. Br. at 2. I accept these facts as true for purposes of this
decision, but they are not material to resolution of the issues in this case and do not affect
the outcome.
2. There was a basis for the revocation of Petitioner’s enrollment and
billing privileges pursuant to 42 C.F.R. § 424.535(a)(1), because he was
not legally authorized to practice medicine as a physician due to the
suspension of his license. Act § 1861(r) (42 U.S.C. § 1395x(r)); 42
C.F.R. § 410.20(b).

3. There was a basis for revocation of Petitioner’s enrollment and
billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) because
Petitioner failed to report adverse legal action as required by 42 C.F.R.
§ 424.516(d)(1)(ii).

Petitioner does not dispute that on about December 14, 2009, the Florida Department of
Health entered an Emergency Suspension Order (ESO) against Petitioner. CMS Ex. 5;
CMS Ex. 6, at 2; P. Ex. 1; P. Br. at 3. It is not disputed, for purposes of ruling upon this
motion, that the ESO issued by Florida is not a permanent suspension or a revocation of
Petitioner’s license to practice medicine in Florida, but Petitioner admits that under the
Florida ESO, he cannot treat patients or practice medicine.*> CMS Ex. 6, at 2; P. Ex. 2, at
2. In fact, it is a third degree felony under Florida law to offer to practice, attempt to
practice, or practice with a suspended license. Fla. Stat. § 456.065(d)1 (2010).

Petitioner does not deny that effective May 4, 2010, the New Jersey State Board of
Medical Examiners suspended his license to practice medicine in New Jersey based on
the ESO issued by the Florida Department of Health. CMS Ex. 6, at 2; P. Br. at 3. The
New Jersey Board suspended Petitioner’s New Jersey Medical license until Petitioner’s
license is reinstated by Florida, with no restrictions, conditions, or probation. CMS Ex. 6,
at 2; CMS Ex. 10; P. Br. at 3. It is also a crime in New Jersey to engage in the practice of
medicine while one’s license or permit to practice medicine is suspended. N.J Rev. Stat.
§ 2C:21-20 (2011).

Petitioner advises me that the Florida Department of Health and the Florida Board of
Medicine have not imposed any discipline against Petitioner. Rather, an amended
complaint has been filed against Petitioner and he has requested a formal administrative
hearing, which has not yet occurred due to pending criminal charges. P. Br. at 3-4. I
accept these statements as true for purposes of ruling upon the motion for summary
judgment. Petitioner notes that it is possible that he could be absolved of all charges and,
if so, the suspension of his license would be terminated. P. Br. at 4. Of course, Petitioner
may advise CMS, or its contractor, if he is acquitted of the criminal charge and the
suspensions are lifted.
Petitioner does not deny that he never reported the Florida or the New Jersey suspension
of his license to CMS or its contractor.

The CMS contractor, Highmark, notified Petitioner of two grounds for the revocation of
his billing privileges: (1) New Jersey suspended Petitioner’s license to practice medicine
and he no longer satisfied the requirement of section 1861(r) of the Act, as implemented
by 42 C.F.R. § 410.20(b), as he was no longer legally authorized to practice medicine or
surgery; and (2) Petitioner failed to report the suspension of his medical license by New
Jersey, an adverse legal action for which reporting is required by 42 C.F.R. §
424.516(d)(1)(ii). CMS Ex. 1, at 1.

Section 1861(r) of the Act and 42 C.F.R. § 410.20(b) are clear that in order to participate
in Medicare and to seek reimbursement for physician services provided to a Medicare
beneficiary, the physician must be legally authorized to practice medicine by the state in
which he provides the services. Petitioner does not dispute that he could not legally
provide physician services in New Jersey during the suspension of license to practice
medicine.’ CMS may revoke the billing privileges of any currently enrolled provider or
supplier, ending their participation in Medicare, for many reasons. Noncompliance with
the enrollment requirements for a provider of supplier type is an authorized basis for
revocation of Medicare billing privileges and participation. 42 C.F.R. § 424.535(a)(1).
Petitioner could not legally practice medicine in New Jersey after his license was
suspended and he no longer met the enrollment requirement of section 1861(r) of the Act
and 42 C.F.R. § 410.20(b). Therefore, revocation of his billing privileges was authorized
by 42 C.F.R. § 424.535(a)(1).

Revocation was also authorized by 42 C.F.R. § 424.535(a)(9) because Petitioner did not
report the suspension of his New Jersey medical license. Enrolled physicians are
required to report to their Medicare contractor any adverse legal action within thirty days.
This condition for maintaining enrollment is established by 42 C.F.R. § 424.516(d)(1)(ii).
The phrase “adverse legal action” is not specifically defined in 42 C.F.R. Part 424. But
the ordinary or usual meaning of the individual words support a conclusion that the
drafters of the regulation intended the phrase to refer to some legal action or action
pursuant to or under color of law that is hostile to or contrary to the interest, concern, or
position of one against whom the action was taken. See Black’s Law Dictionary 31, 58,
912 (18th ed. 2004); Merriam-Webster Dictionary, http://www.merriam-
webster.com/dictionary (2011). Petitioner does not urge me to conclude that the

Petitioner also does not dispute that he could not legally practice medicine in Florida
during the suspension of his Florida license. However, the suspension of his Florida
license was not the basis for the revocation of his billing privileges and Medicare
participation in this case.
suspension of his license in New Jersey was not an adverse legal action. Petitioner does
not dispute that he failed to report the adverse legal action of the New Jersey Board.
Petitioner violated the reporting requirement established by 42 C.F.R. §
424.516(d)(1)(ii).° Therefore, revocation of his billing privileges was authorized by 42
CER. § 424.535(a)(9).

Petitioner argues that the Act and the regulations: (1) do not specifically define the phrase
“legally authorized to practice medicine;” or (2) address whether a “temporary or non-
final suspension” renders one “not legally authorized to practice medicine.” P. Br. at 6.
These arguments are nonsensical and verge on being frivolous given the fact that
Petitioner does not dispute that he cannot legally practice medicine in either Florida or
New Jersey, while his licenses are suspended. Petitioner also does not specifically assert
that the suspensions of his licenses were not adverse legal actions.

Petitioner argues that he is complying with Florida and New Jersey licensing
requirements and, therefore, he is in compliance with enrollment requirements. P. Br. at
8-9. However, whether or not Petitioner complies with state licensing requirements is not
the issue. The requirement for being enrolled and maintaining enrollment under the Act
and regulations is based on whether Petitioner is legally authorized to practice medicine.
In this case, Petitioner does not dispute that he may not legally practice medicine in either
New Jersey or Florida, while his licenses are suspended. Thus, he does not meet current
enrollment requirements, even though he may meet state licensing requirements.

Petitioner argues that because the federal regulations do not distinguish between
permanent and temporary suspensions, CMS cannot rely upon the regulations. P. Br. at
9-10. The fact that the regulations do not distinguish between temporary and permanent
exclusions does not benefit Petitioner. The absence of a distinction in the regulations
should be construed to mean that any such distinction has no impact. Section 1861(r) of
the Act specifically requires that a physician must be legally authorized to practice
medicine by the state in which he provides the services. If the impact of a suspension,
whether temporary or permanent, is that a physician is no longer legally authorized to
practice medicine, the physician is no longer in compliance with participation
requirements and revocation is authorized.

° The hearing officer concluded that the reporting requirement did not apply to Petitioner
as his Medicare file in New Jersey had been deactivated since 1994. CMS Ex. 7, at 3.
The hearing office did not provide any analysis or citation of authority for that
conclusion. However, even if the hearing officer’s conclusion is correct, Petitioner is
nevertheless subject to revocation of his billing privileges because he was not legally
authorized to practice medicine due to the suspension of his license.
Petitioner argues that CMS cannot revoke his billing privileges because the regulations
do not specifically provide that a temporary or contingent suspension constitutes either an
adverse legal action or a final adverse action. P. Br. at 11. Petitioner correctly states that
the regulations do not define the phrase “adverse legal action” as used in 42 C.F.R.

§ 424.516(d)(1)(ii). However, Petitioner points to the definition of “final adverse action”
in 42 C.F.R. § 424.502, and argues that the definition limits the obligation to report under
42 C.F.R. § 424.516(d)(1)(ii) to only final adverse legal actions. The gist of Petitioner’s
argument is that his suspensions are not permanent or final and he had no obligation to
report to CMS. Petitioner’s argument is without merit. If the drafters of 42 C.F.R.

§ 424.516(d)(1)(ii) intended for only “final adverse action” to be reportable, they would
have used that phrase given the fact they specifically defined that phrase in 42 C.F.R.

§ 424.502. Rather, the use of the phrase “adverse legal action” in 42 C.F.R.

§ 424.516(d)(1)(ii) was clearly intended to be broadly construed to require that all
“adverse legal action” be reported, not just the subset of final adverse legal actions. The
suspension of Petitioner’s licenses caused him to no longer be legally authorized to
practice medicine in either New Jersey or Florida. The suspensions were legal actions
adverse to the interests of Petitioner and reporting was required.

III. Conclusion

For the foregoing reasons, I conclude that there was a basis for the revocation of
Petitioner’s billing privileges and enrollment in Medicare.

/s/
Keith W. Sickendick
Administrative Law Judge