Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Center for Tobacco Products,
Complainant
v.

Shreeyamuna, LLC
d/b/a Woodside Mini Mart,

Respondent.

Docket No. C-15-3853
FDA Docket No. FDA-2015-H-3084

Decision No. CR4688

Date: August 22, 2016

INITIAL DECISION

I sustain the determination of the Centers for Tobacco Products of the United
States Food and Drug Administration (CTP) to impose a civil money penalty of
$11,000 against Respondent, Shreeyamuna, LLC d/b/a Woodside Mini Mart. The
preponderance of the evidence establishes that Respondent sold tobacco products
to minors, failed to verify the purchaser’s identification , and had an open pack of
cigarettes intended for the sale of individual cigarettes during a forty-eight month
period in violation of 21 C.F.R. §§ 1140.14(a), 1140.14(b)(1), and 1140.14(d).
These actions were violations of the Federal Food, Drug, and Cosmetic Act (Act),
21 U.S.C. § 387c(a)(7)(B).
I. Procedural History

Complainant began this matter by serving an administrative complaint on
Respondent, Woodside Mini Mart, at 999 Woodside Avenue, Greenville, South
Carolina 29611, and by filing a copy of the complaint with the Food and Drug
Administration’s (FDA) Division of Dockets Management. Respondent timely
answered the Complaint. In its Answer, Respondent admitted the violations
alleged in the Complaint.

On October 15, 2015, I issued an Acknowledgement and Prehearing Order
(APHO) that set deadlines for the parties to file their pre-hearing exchanges.
Respondent requested a hearing in order to challenge CTP’s determination to
impose an $11,000 civil money penalty against it. On December 29, 2015, CTP
filed a Notice of Pending Settlement and an Unopposed Motion to Extend
Deadlines. The Motion was granted on December 31, 2015. On March 29, 2016,
CTP filed a subsequent Notice of Pending Settlement and an Unopposed Motion
to Extend Deadlines that was granted on March 30, 2016. On May 17, 2016, CTP
filed a third Notice of Pending Settlement and an Unopposed Motion to Extend
Deadlines stating that Respondent has partially executed the settlement agreement,
but is requesting an additional forty-five (45) days to submit payment. I granted
the Motion extending the exchange deadline to July 11, 2016 for CTP and August
1, 2016 for the Respondent. I informed the parties that no further extensions
would be granted.

To date, the parties have not submitted a Notice of Settlement Agreement. On
July 11, 2016 CTP filed a brief and four proposed exhibits that are identified as
CTP Ex. 1- CTP Ex. 4. Respondent did not submit a written brief or any proposed
exhibits. Accordingly, I am issuing a decision on the record in this case. I receive
CTP Ex. 1- CTP Ex. 4 into the record.

II. Issues, Findings of Fact and Conclusions of Law
A. Issues
The issues are whether:
1. Respondent marketed and sold tobacco products in violation of
federal law;
2. A civil money penalty of $11,000 is reasonable.

B. Findings of Fact and Conclusions of Law

The following facts are undisputed. Respondent does business as Woodside Mini
Mart, located at 999 Woodside Avenue, Greenville, South Carolina 29611.
Respondent’s business includes the sale of tobacco products, including cigarettes.
CTP Informal Brief, at 4.

CTP asserts, and Respondent admits, that Respondent sold tobacco products to
minors on three occasions, failed to verify the purchaser’s identification on three
occasions, and had an open pack of cigarettes intended for the sale of individual
cigarettes on one occasion. Respondent’s Answer; CTP Informal Brief at 1.
Specifically, on December 16, 2013, July 2, 2014, and April 13, 2015, Respondent
sold tobacco products (cigarettes) to minor purchasers and failed to verify the
minors’ identification. CTP Informal Brief at 4-5. Respondent had an open pack
of cigarettes intended for the sale of individual cigarettes on April 28, 2015. CTP
Informal Brief at 6. The admitted violations add up to a total of six violations of
the Act and implementing regulations over a period of about forty-eight months.

Complainant is authorized to impose civil money penalties on individuals or
entities that violate the Act and its implementing regulations. Penalties of up to
$11,000 are authorized for six violations that occur within a 48- month period. 21
C.F.R. § 17.2. I find that the penalty that Complainant seeks to impose for
Respondent’s noncompliance is reasonable pursuant to 21 U.S.C. § 333(£)(5)(B).
Respondent egregiously violated the law and did so despite being warned not to.
Respondent put the health and safety of minors at risk with its multiple violations.
With regards to the proposed penalty, Respondent has not proven that its assets
and financial resources are insufficient to pay the penalty amount. On the
contrary, Respondent agreed that the proposed penalty of $11,000 is appropriate.
Respondent’s Answer.

Order

For these reasons, I enter judgment in the amount of $11,000 against Respondent
Shreeyamuna, LLC d/b/a Woodside Mini Mart.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Evelyn A. Kadia,

(OI File No.: 5-09-40361-9),
Petitioner,
Vv.
The Inspector General.
Docket No. C-16-529
Decision No. CR4686

Date: August 18, 2016

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Evelyn
A. Kadia, from participating in Medicare, State Medicaid, and other federally funded
ealth care programs for a minimum of five years.

I. Background

Petitioner requested a hearing to challenge the I.G.’s exclusion determination. The I.G.
filed a brief and seven exhibits, identified as I.G. Exhibit (Ex.) 1-1.G. Ex. 7, in support of

is determination. The I.G. also filed a reply brief. Petitioner filed a brief and seven
exhibits in opposition, identified as P. Ex. 1-P. Ex. 7.

Petitioner requested an in-person hearing to hear the testimony of three individuals. The
1.G. argues that these individuals’ proposed testimony is irrelevant. I find no basis for an
in-person hearing. In my pre-hearing order of May 18, 2016, I instructed the parties to
reduce all proposed testimony to written statements made under oath. Petitioner did so
for only one individual (Patrick J. Knight, P. Ex. 1) and provided no explanation for her

failure to obtain written statements from the other two proposed witnesses. As for Mr.
Knight’s testimony, I find it to be irrelevant for two reasons. First, although it attempts to
explain Petitioner’s conviction of criminal offenses, it states nothing that detracts from
my conclusion that Petitioner was convicted of crimes relating to the delivery of items or
services under a State Medicaid program. Second, it is excludable as an effort to re-
litigate the basis for Petitioner’s conviction of such crimes. I discuss my analysis in
greater detail, below.

I receive into evidence I.G. Ex. 1-1.G. Ex. 7. L also receive into evidence P. Ex. 2-P Ex.
7. Lexclude P. Ex. 1 for the reasons I have just stated.

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

The issue is whether Petitioner was convicted of a crime as is defined by section
1128(a)(1) of the Social Security Act (Act), thereby mandating that she be excluded for a
period of at least five years.

B. Findings of Fact and Conclusions of Law

Section 1128(a)(1) of the Act mandates the exclusion of any individual who is convicted
of a crime relating the delivery of an item or service under Medicare or a State Medicaid
program. Any exclusion imposed pursuant to section 1128(a)(1) must be for a period of
at least five years. Act § 1128(c)(3)(B).

Petitioner was convicted of crimes within the meaning of section 1128(a)(1). She
generated false medical records for the purpose of defrauding a State Medicaid program.
1G. Ex. 4; 1.G. Ex. 5; LG. Ex. 6. The evidence establishes unequivocally that the records
that Petitioner falsified were to be used as supporting documents for false claims made
under the Wisconsin Medicaid program. I.G. Ex. 2. Complex analysis is unnecessary
here to establish that Petitioner’s crimes were related to the delivery of Medicaid items or
services. The essence of her crimes was to facilitate defrauding Medicaid with false
claims for patient reimbursement for Medicaid items or services.

Petitioner argues that there was an original criminal complaint filed against her for
Medicaid fraud that was “dismissed as factually unsupported, and was not the factual
basis for . . . [Petitioner’s] misdemeanor convictions.” Petitioner’s informal brief at 1.
But, whether or not that is true, it doesn’t derogate an iota from the fact that Petitioner
was convicted of facilitating Medicaid fraud by falsifying patient records. That plainly is
enough to establish a conviction within the meaning of section 1128(a)(1).
Petitioner argues also that “it was mistakenly believed that . . . [she] knowingly
participated in . . . false billing and that she willingly submitted false claims to the
Wisconsin Medicaid program.” Petitioner’s informal brief at 2. She elaborates on her
argument to contend that her “only misconduct was acceding to her sister’s request that
she sign several patient charts for days where she had not provided the charted patient
care.” Id. at 3.

Petitioner seems to be arguing that she was unaware of the purpose of her creating false
patient records and that she was practically an innocent bystander to the Medicaid fraud
perpetrated by another individual (her sister). In one sense, she seems to be attempting to
argue that, although she stands technically convicted of crimes, she is not really guilty of
one, and certainly not guilty of assisting in the commission of fraud against the Medicaid
program. That, in effect, amounts to an attempt to re-litigate her conviction and to argue
her fundamental innocence. That argument is impermissible. 42 C.F.R. § 1001.2007(d).

But, more importantly, Petitioner’s argument is irrelevant. It does not matter that
Petitioner did not personally file false or fraudulent claims or that she did not stand to
benefit financially from them. She stands convicted of acts that abetted the filing of false
claims. Her acts were a necessary element of a scheme to defraud the Wisconsin
Medicaid program. That is enough to prove that she committed a crime related to the
delivery of Medicaid items or services.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Joseph Peet,
(OI File No. H-15-43099-9),

Petitioner,
Vv.
The Inspector General.
Docket No. C-16-243
Decision No. CR4684

Date: August 16, 2016

DECISION

Petitioner, Joseph Peet, was a personal care provider, working in Montgomery County,
Maryland. He was convicted on one felony count of Medicaid fraud. Based on this, the
Inspector General (IG) has excluded him for five years from participating in Medicare,
Medicaid, and all federal health care programs, as authorized by section 1128(a)(1) of the
Social Security Act (Act). Petitioner appeals the exclusion. For the reasons discussed
below, I find that the IG properly excluded Petitioner Peet and that the statute mandates a
minimum five-year exclusion.

Background

In a letter dated December 31, 2015, the I.G. notified Petitioner that he was excluded
from participating in Medicare, Medicaid, and all federal health care programs for a
period of five years because he was convicted of a criminal offense related to the delivery
of an item or service under Medicare or a state health care program. The letter explained
that section 1128(a)(1) of the Act authorizes the exclusion. 1.G. Ex. 1. Petitioner timely
requested review.
The IG submitted a written argument (IG Br.) and five exhibits (IG Exs. 1-5). Petitioner
did not respond to the IG’s brief. Instead, responding to my order to show cause,
Petitioner asked that I postpone this matter indefinitely while he attempts to appeal his
conviction and otherwise get his life in order. The IG objected, and I deny Petitioner’s
request.

In the absence of any other objections, I admit into evidence IG Exs. 1-5.
Neither party indicates that an in-person hearing is necessary. IG Br. at 4.
Discussion

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

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must
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(a).

Here Petitioner provided in-home services to a Medicaid beneficiary who resided in his
ome. IG Ex. 4. When she moved out, he continued to bill the state Medicaid program
‘or services that he no longer provided. On September 21, 2015, he was convicted on
one felony charge of Medicaid fraud. I.G. Exs. 3, 4,5. The court sentenced Petitioner to
five years’ probation and ordered him to pay restitution of $17,603.35. LG. Ex. 5.

Petitioner complains that the five-year exclusion is excessive and blames his “deceitful”
previous client for not returning to his home, which ultimately led to his conviction.
Hearing request. The regulations explicitly preclude such a collateral attack on an
underlying 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.

' [make this one finding of fact/conclusion of law.
42 C.F.R. § 1001.2007(d); Donna Rogers, DAB No. 2381 at 4-5 (2011); Joann Fletcher
Cash, DAB No. 1725 (2000); 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).

Petitioner’s conviction thus falls squarely within the statutory and regulatory definition of
“conviction,” and his conviction for Medicaid fraud is obviously related to the delivery of
services under a state health care program. He is therefore subject to exclusion. An
exclusion brought under section 1128(a)(1) must be for a minimum period of five years.
Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participation
in Medicare, Medicaid, and all federal health care programs, and I sustain the five-year
exclusion.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Carolyn R. Parker
(OI File No. H-15-42923-9),

Petitioner,
Vv.
The Inspector General.
Docket No. C-16-385
Decision No. CR4683

Date: August 16, 2016

DECISION

1 affirm the Inspector General (IG) of the United States Department of Health and Human
Services’ exclusion of Carolyn R. Parker (Petitioner) from participation in Medicare,
Medicaid, and all federal health care programs for a minimum period of five years under
42 U.S.C. § 1320a-7(a)(1).

I. Background

By notice letter dated December 31, 2015, the IG excluded Petitioner from participation
in Medicare, Medicaid, and all federal health care programs for five years. The IG cited
section 1128(a)(1) of the Social Security Act (Act) as the basis for Petitioner’s exclusion.
The IG stated that he was taking this action based on Petitioner’s conviction in the
Osceola District Court (District Court), State of Arkansas, of a criminal offense related to
the delivery of an item or service under the Medicare or a State health care program,
including the performance of management or administrative services relating to the
delivery of items or services, under any such program.
On February 26, 2016, Petitioner timely requested a hearing before an administrative law
judge. Petitioner stated she pled guilty to a misdemeanor theft charge, but denied that she
actually committed the crime. Petitioner argued that she should not be excluded because
her conviction was not for misappropriation of funds or related to “abuse of the system.”

On April 27, 2016, I held a prehearing conference by telephone, the substance of which is
summarized in my April 29, 2016 Order and Schedule for Filing Briefs and Documentary
Evidence (Order). In accordance with the Order, the IG filed a brief (IG Br.) and seven
exhibits (IG Exs. 1-7). The IG also moved that I accept redacted versions of IG Exs. 2, 4,
5, and 6. Petitioner filed a response brief (P. Br.) with one exhibit (P. Ex. 1), which is a
written statement from Petitioner titled “My Full Testimony.” The IG declined to file a
reply to Petitioner’s submission.

II. Decision on the Record

Neither party objected to any of the proposed exhibits. Therefore, I admit them all into
the record. See Order 45; CRDP § 14(e).

I grant the IG’s unopposed motion to admit redacted versions of IG Exs. 2, 4, 5, and 6. I
find that there is good cause to redact the names of Medicaid beneficiaries appearing in
those documents in order to protect their privacy. 42 C.F.R. § 1005.18(d).

Both parties indicated that an in-person hearing was not necessary. IG Br. at 5; P. Br. at
2. Petitioner submitted her own written testimony (P. Ex. 1). The IG declined to reply to
Petitioner’s submission; therefore, I conclude that the IG waived its opportunity to cross-
examine Petitioner. See 42 C.F.R. § 1005.16(b). Because neither party seeks an in-
person hearing, I decide this case based on the written record.

III. Issue

Whether the IG has a basis for excluding Petitioner from participating in Medicare,
Medicaid, and all other federal health care programs for five years pursuant to 42 U.S.C.
§ 1320a-7(a)(1). See 42 C.F.R. § 1001.2007(a)(1)-(2).

IV. Jurisdiction

I have jurisdiction to decide this case. 42 U.S.C. § 1320a-7(f); 42 C.F.R. § 1005.2.
V. Findings of Fact, Conclusions of Law, and Analysis’

The IG indicated that 42 U.S.C. § 1320a-7(a)(1) was the basis for Petitioner’s mandatory
exclusion. IG Ex. 1. The statute provides:

(a) Mandatory exclusion.

The Secretary shall exclude the following individuals and
entities from participation in any Federal health care program
(as defined in section 1320a—7b(f) of this title):

(1) Conviction of program-related crimes

Any individual or entity that has been convicted of a
criminal offense related to the delivery of an item or
service under subchapter XVIII of this chapter or
under any State health care program.

Thus, the elements the IG must prove to sustain Petitioner’s exclusion pursuant to

42 U.S.C. § 1320a-7(a)(1) in this case are: (1) Petitioner was convicted of a criminal
offense, and (2) Petitioner’s offense was related to the delivery of an item or service
under Medicare or a state health care program, including the performance of management
or administrative services relating to the delivery of items or services, under any such
program. 42 C.F.R. § 1001.101(a).

A, Petitioner pled guilty to three counts of theft from Medicaid beneficiaries
residing at a long term care facility, and the District Court sentenced her to
15 days in jail.

Petitioner was the business office manager at Osceola Therapy and Living (the facility),
a long term care facility that is both a Medicare and Medicaid provider. IG Ex. 7; P. Ex.
1 at 1. In that role, Petitioner was responsible for overseeing trust accounts for the
residents at the facility. P. Ex. 1 at 1. The practice of the former facility administrator
for whom Petitioner worked was for the administrator to sign for withdrawals made on
the residents’ trust accounts if a family member was not there to sign for it and,
sometimes, even for residents who were able to sign for the withdrawals themselves.

P. Ex. 1 at 1. The facility hired a new administrator, and Petitioner decided to resign her
position. P. Ex. | at 1-2.

' My findings of fact and conclusions of law are set forth in italics and bold font.
The new facility administrator audited the residents’ trust accounts. Based on this audit,
the facility administrator filed a report with the Osceola Police Department alleging that
Petitioner had used resident trust account funds to pay her phone bill and that of her
husband. IG Ex. 3 at 1; IG Ex. 4. The police obtained from the facility administrator
copies of checks signed by Petitioner paid to Verizon Wireless as follows: October 23,
2014, in the amount of $241.90 and December 9, 2014, for $487.10. IG Ex. 3 at 1.
Ultimately, Petitioner was charged with three counts of theft related to resident trust
accounts. IG Exs. 4,5. According to state records, the residents who were the victims of
the theft were on Medicaid. IG Ex. 6 at 4, 7, 9.

Petitioner pled guilty to three counts of theft of property in violation of Arkansas Code
§ 5-36-103. IG Ex. 2; see also P. Ex. | at 3. On April 20, 2015, the District Court
entered judgment and sentenced Petitioner to 15 days in jail. IG Ex. 2.

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

Under 42 U.S.C. § 1320a-7(a)(1), Petitioner must be “convicted of a criminal offense”
before she can be excluded. An individual is considered “convicted” when a judgment of
conviction has been entered by a federal, state, or local court, or a plea of guilty or no
contest has been accepted in a federal, state, or local court. 42 U.S.C. § 1320a-7(i)(1),
(3). In the present matter, Petitioner entered a guilty plea and, based on that guilty plea,
the District Court entered a judgment against Petitioner for three violations of Arkansas
Code § 5-36-103, and sentenced her to 15 days in jail. IG Ex. 2. Based on these facts, I
conclude that Petitioner was convicted of a criminal offense for purposes of 42 U.S.C.

§ 1320a-7(a)(1).

C. Petitioner’s criminal offense of theft from Medicaid beneficiary trust
accounts is an offense related to the delivery of an item or service under a
state health care program (i.e., Medicaid).

An individual must be excluded from participation in any federal health care program if
the individual was 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 U.S.C.

§ 1320a-7(a)(1); 42 C.F.R § 1001.101(a). A state health care program includes a state’s
Medicaid program. 42 U.S.C. § 1320a-7(h); 42 C.F.R. § 1001.2 (definition of State
health care program).

It is significant that the term “related to” simply means that there must be a nexus or
common sense connection. See Quayum v. U.S. Dep’t of Health & Human Servs.,

34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813,
820 (D.C. Cir. 2012) (describing the phrase “relating to” in another part of section 1320a-
7 as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,”
and one that is not subject to “crabbed and formalistic interpretation”) (internal quotation
marks omitted).

In the present case, Petitioner was the business office manager for a long term care
facility enrolled in the Medicare and Medicaid programs. IG Exs. 4, 7. The IG asserts,
and Petitioner does not dispute, that the three residents from whom Petitioner pled guilty
to stealing funds were Medicaid beneficiaries. IG Br. at 3 n.4; IG Ex. 6 at 4, 7, 9.

Long term care facilities enrolled in the Medicare or Medicaid programs must safeguard
resident funds that are entrusted to the facilities’ care. See 42 C.F.R. § 483.10(c).
Therefore, the function of properly handling residents’ funds is a “management or
administrative service[] relating to the delivery of items or services” under the Medicaid
program. 42 C.F.R. § 1001.101(a).

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

Petitioner asserts that she should not be excluded because she only pled guilty to the
misdemeanor theft offenses to avoid the possibility of being convicted of a felony.
Petitioner indicates that she is innocent of the charges that were made against her.
Petitioner states that she never would have pled guilty had she known that she would
serve time in jail and be excluded from continuing her career in the health care field.
P. Br.; P. Ex. 1 at 3-4.

I cannot consider Petitioner’s argument because it is an impermissible collateral attack on
her criminal conviction. I have no authority to review the facts in her criminal case and
determine whether she is in fact guilty or not. 42 C.F.R. § 1001.2007(d).

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

VI. Conclusion

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

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Optimus Homecare LLC,
(NPI: 1063897569),
Petitioner,
Vv.
Centers for Medicare & Medicaid Services,
Respondent.
Docket No. C-16-582
Decision No. CR4682

Date: August 16, 2016

DECISION

I sustain the determination of a Medicare contractor, as affirmed on reconsideration and
ratified by the Centers for Medicare & Medicaid Services (CMS), to deny an enrollment
application for Medicare participation by Petitioner, Optimus Homecare, LLC.

I. Background

Petitioner, seeking certification from CMS to participate in Medicare as a home health
agency, filed a hearing request in order to challenge the denial of its application to
participate in Medicare. CMS filed a brief and five proposed exhibits that are identified
as CMS Ex. 1-CMS Ex. 5. Petitioner filed a brief plus two unmarked and unidentified
exhibits. These consist of a license issued to Petitioner by the State of New Jersey, which
lam identifying as P. Ex. 1, and an accreditation services agreement, which I am
identifying as P. Ex. 2. I receive all of these exhibits into the record.
CMS moved for summary judgment as part of its pre-hearing exchange. It is unnecessary
that I decide whether the criteria for summary judgment are met in this case. Neither
party has offered the testimony of a witness and, consequently, no purpose would be
served by convening an in-person hearing. I decide the case based on the written record.

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

The issue is whether a Medicare contractor appropriately denied Petitioner’s application
to participate in Medicare as a home health agency.

B. Findings of Fact and Conclusions of Law

A “home health agency” is an agency or organization that is primarily engaged in
providing skilled nursing and other therapeutic services subject to applicable state
licensing laws and regulations. Social Security Act (Act), § 1861(0) (42 U.S.C.

§ 1395x(o)). In order to be certified to participate in Medicare, a home health agency
must comply with all applicable laws, including applicable State laws and regulations.
42 C.F.R. § 484.12(a). CMS has interpreted this section to require home health agencies
to be licensed pursuant to State law. Home Health Providers, Centers for Medicare &
Medicaid Services, https://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/CertificationandComplianc/HHAs.html (last updated 04/09/2013 4:53 PM).

CMS is authorized to deny a provider’s application for enrollment in Medicare where a
provider is found not to be complying with enrollment requirements. 42 C.F.R.

§ 424.530(a)(1). In order to qualify for participation a provider must submit all
applicable licenses, including State licenses, to CMS. 42 C.F.R. § 424.510(d)(2)(ii), (iii).

The facts of this case are undisputed and uncomplicated. Petitioner, a New Jersey entity,
does not have a license to provide health care services in that State as a home health
agency. CMS has refused to certify Petitioner as a Medicare participant because it does
not have the requisite license. That determination is entirely consistent with the
requirements of the Act and governing regulations.

Evidently, the State of New Jersey will not license Petitioner because Petitioner has not
obtained a certificate of need to provide home health care services in that State. For
Petitioner, the situation is a Catch-22 in that the State is not currently issuing such
certificates and apparently, has not done so for many years. See Request for Hearing at 1.
But, that does not change the outcome of this case. Whatever dispute Petitioner may
have with the State of New Jersey, and whatever may be the merits of that dispute,
Petitioner lacks a license to provide care in that State as a home health care agency and
that is outcome determinative for purposes of deciding whether Petitioner qualifies to be
certified to participate in Medicare.

Petitioner has produced a business license that it obtained from the State of New Jersey,
specifically, the Division of Consumer Affairs of the Department of Law and Public
Safety. That is a license to operate as a “health care service firm.” P. Ex. 1. The
issuance of such a license is governed by New Jersey State regulation. N.J. Admin. Code
Subchapter 13. A health care service firm is defined as:

Any person who operates a firm that employs individuals directly or
indirectly for the purpose of assigning the employed individuals to provide
health care or personal care services either directly in the home or at a care-
giving facility... .

N.J. Admin. Code § 13:45B-13.2.

That definition is distinct from New Jersey’s definition of a home health agency, which is
defined as:

a facility that is licensed . . . to provide preventative, rehabilitative, and
therapeutic services to patients in the patient’s home or place of residence.

N.J. Admin. Code § 8.33-1.3. It is plain from these regulations that a license as a health
care service firm is distinguishable from a license as a home health agency. The former
license authorizes an entity to employ persons and to assign them to provide health care
services in a patient’s home or care-giving facility. By contrast, a license for a home
health agency covers not only the personnel who may be assigned but the services that
may be performed by those personnel, and it plainly focuses precisely on those services.

The requirements for a home health agency are quite different from those for a health
care service firm. Amongst many distinguishing characteristics, home health agencies:
must be licensed by the New Jersey Department of Health (N.J. Admin. Code § 8:42-
2.2(a)); must have nursing services available 24 hours a day, seven days a week (N.J.
Admin. Code § 8:42-3.1(a)(2)); must undergo surveys by the Department’s Division of
Health Facility Survey and Field Operations (N.J. Admin. Code § 8:42-2.3)); must
provide continuity of care by retaining the same nursing personnel for each patient
whenever possible (N.J. Admin. Code § 8:42-3.1(b)(3)); and must have an established
policy and procedure manual available to the public (N.J. Admin. Code § 8:42-3.5(a),
(c)). Conversely, a health care service firm has no requirements for minimum services
provided and is licensed by the Division of Consumer Affairs of the New Jersey
Department of Law and Public Safety (N.J. Admin. Code §§ 13.45B-1.2 (definition of

“Director”), 13.45B-13.1(b)). Broadly speaking, New Jersey law treats a home health
agency as it does other health care providers, while it treats a health care service firm as it
does an employment agency. As a result, the two entities are not interchangeable.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Gregory Allen Louck
(O.I. File No. H-15-43553-9),

Petitioner,
v.

The Inspector General,
Department of Health and Human Services.

Docket No. C-16-431
Decision No. CR 4681
Date: August 16, 2016

DECISION

Petitioner, Gregory Allen Louck, is excluded from participation in Medicare, Medicaid,
and all federal health care programs pursuant to section 1128(a)(3) of the Social Security
Act (Act) (42 U.S.C. § 1320a-7(a)(3)), effective March 20, 2016. Petitioner’s exclusion
for the minimum period of five years is required by section 1128(c)(3)(B) of the Act

(42 U.S.C. § 1320a-7(c)(3)(B)).

I. Background

The Inspector General (I.G.) notified Petitioner by letter dated February 29, 2016, that he
was being excluded from participation in Medicare, Medicaid, and all federal health care
programs for five years. The L.G. cited section 1128(a)(3) of the Act as the basis for
Petitioner’s exclusion and stated that the exclusion was based on his conviction in the
Elkhart Superior Court, State of Indiana, of a criminal offense related to fraud, theft,

* Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after
the period of exclusion expires. Reinstatement is not automatic upon completion of the
period of exclusion.
embezzlement, breach of fiduciary responsibility or other financial misconduct in
connection with the delivery of a health care item or service. 1.G. Exhibit (Ex.) 1.

Petitioner filed a request for hearing on March 25, 2016. I convened a prehearing
conference by telephone on April 20, 2016, the substance of which is memorialized in my
Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence
dated April 20, 2016 (Prehearing Order). During the prehearing conference, Petitioner
waived an oral hearing. The parties agreed to a decision on the briefs and documentary
evidence and I set a briefing schedule.

Despite the waiver of oral hearing, the I.G. filed a motion for summary judgment and
supporting brief (I.G. Br.) on May 11, 2016, with I.G. Exs. 1 through 7. Petitioner filed a
response in opposition to the I.G. motion for summary judgment and a cross-motion for
summary judgment and brief in support thereof (P. Br.) on June 10, 2016, with no
exhibits. I infer based on Petitioner’s filings that Petitioner withdrew the waiver of an
oral hearing and I find it necessary to consider the parties’ summary judgment motions.

I informed Petitioner in the Prehearing Order, para. 7, that if he wished for me to consider
the documents he submitted with his hearing request, he had to resubmit the documents
properly marked as exhibits with his response brief. Petitioner did not file the
attachments to his hearing request marked as exhibits. Accordingly, I do not consider the
attachments to the hearing request as evidence in this case. Even if the attachments to the
request for hearing were offered, the documents are not relevant to the issues before me
and they would have been subject to exclusion on that basis. 42 C.F.R. § 1005.17(c). On
June 20, 2016, the LG. filed a reply brief. Petitioner did not object to my consideration of
1.G. Exs. 1 through 7 and they are admitted as evidence.

II. Discussion
A. Applicable Law

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

Pursuant to section 1128(a)(3) of the Act, the Secretary must exclude from participation
in any federal health care program:

Any individual or entity that has been convicted for an
offense which occurred after... [August 21, 1996], under
Federal or State law, in connection with the delivery of a
health care item or service or with respect to any act or
omission in a health care program (other than those
specifically described in [section 1128(a)(1)]) operated by or
financed in whole or in part by any Federal, State, or local
government agency, of a criminal offense consisting of a
felony relating to fraud, theft, embezzlement, breach of
fiduciary responsibility, or other financial misconduct.

The Secretary has promulgated regulations implementing these provisions of the Act.
42 CFR. § 1001.101(c).

Pursuant to section 1128(i) of the Act, an individual is convicted of a criminal offense
when: (1) a judgment of conviction has been entered by a federal, state, or local court
whether or not an appeal is pending or the record has been expunged; (2) there is a
finding of guilt in a court; (3) a plea of guilty or no contest is accepted by a court; or (4)
the individual has entered into any arrangement or program where judgment of
conviction has been withheld. 42 U.S.C. § 1320a-7(i)(1)-(4); 42 C.F.R. § 1001.2.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section
1128(a) of the Act will be for a period of not less than five years. 42 C.F.R.

§ 1001.102(a). The Secretary has published regulations that establish aggravating factors
the I.G. may consider to extend the period of exclusion beyond the minimum five-year
period, as well as mitigating factors that may be considered only if the I.G. proposes to
impose an exclusion greater than five years. 42 C.F.R. § 1001.102(b), (c).

The standard of proof is a preponderance of the evidence, and there may be no collateral
attack of the conviction that provides the basis of the exclusion. 42 C.F.R.
§ 1001.2007(c), (d). Petitioner bears the burden of proof and the burden of persuasion on

any affirmative defenses or mitigating factors, and the I.G. bears the burden on all other
issues. 42 C.F.R. § 1005.15(b), (c).

B. Issues
The Secretary has by regulation limited my scope of review to two issues:

Whether the I.G. has a basis for excluding Petitioner from participation in
Medicare, Medicaid, and all federal health care programs; and

Whether the length of the proposed period of exclusion is unreasonable.
42 C.F.R. § 1001.2007(a)(1).
When, as in this case, the I.G. imposes the minimum authorized five-year exclusion

under section 1128(a) of the Act, there is no issue as to whether the period of exclusion is
unreasonable. 42 C.F.R. § 1001.2007(a)(2).
C. Findings of Fact, Conclusions of Law, and Analysis

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

1. Petitioner’s request for hearing was timely and I have jurisdiction.
2. Summary judgment is appropriate.

There is no dispute that Petitioner timely filed his request for hearing on March 25, 2016,
and that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.
Petitioner waived an oral hearing during the prehearing conference. Prehearing Order at
3. 42 C.F.R. § 1005.6(b)(5). However, the LG. filed a motion for summary judgment
and Petitioner filed a response in opposition and a cross-motion for summary judgment.

1 infer from Petitioner’s filings that he withdrew the waiver of oral hearing. Accordingly,
it is necessary for me to determine whether or not summary judgment is appropriate or
whether I must decide this case on the merits after an oral hearing.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to
reasonable notice and an opportunity for a hearing. The Secretary has provided by
regulation that a sanctioned party has the right to hearing before an ALJ, and both the
sanctioned party and the LG. have a right to participate in the hearing. 42 C.F.R.

§§ 1005.2-.3. Either or both parties may choose to waive appearance at an oral hearing
and to submit only documentary evidence and written argument for my consideration.
42 C.F.R. § 1005.6(b)(5). An ALJ may also resolve a case, in whole or in part, by
summary judgment. 42 C.F.R. § 1005.4(b)(12).

Summary judgment is appropriate when the movant shows that there is no genuine
dispute as to any material fact and the only questions to be decided involve application of
the law to the undisputed facts; or the moving party prevails as a matter of law even if all
disputed facts are resolved in favor of the party against whom the motion is made. A
party opposing summary judgment must allege facts which, if true, would refute the facts
relied upon by the moving party. Deciding a case on summary judgment differs from
deciding a case on the merits after a hearing. An ALJ does not assess credibility or weigh
conflicting evidence when deciding a case on summary judgment. Bartley Healthcare
Nursing & Rehab., DAB No. 2539 at 3-4 (2013); Senior Rehab. & Skilled Nursing Ctr.,
DAB No. 2300 at 3 (2010); Holy Cross Village at Notre Dame, Inc., DAB No. 2291 at 5
(2009); see Fed. R. Civ. Pro. 56.

There are no genuine disputes as to any material facts in this case. The facts that trigger
exclusion under sections 1128(a)(3) of the Act are undisputed. Petitioner agrees that the
issue to be decided is an issue of law, specifically “whether a conditional judgment can

be construed as a felony conviction for purposes of imposing a mandatory exclusion . . .
under section 1128(a)(3) of the Social Security Act.” P. Br. at 3. Petitioner concedes that
if there is a basis for exclusion, five years is the minimum period authorized.

3. Petitioner’s exclusion is required by section 1128(a)(3) of the Act.
a. Facts

On April 7, 2015, Petitioner was charged by information filed in the Elkhart Superior
Court (state court) with two felony counts. Count I charged Petitioner, a certified
registered nurse anesthetist, with stealing Fentanyl, a Schedule II synthetic opioid, from
the Elkhart General Hospital between December 31, 2013 and January 29, 2014. Count
II charged Petitioner with possessing Fentanyl without a valid prescription or order. I.G.
Ex. 3; I.G. Ex. 7.

On October 5, 2015, Petitioner entered into a plea agreement with the Indiana prosecutor.
The agreement provided that Petitioner would plead guilty to Count I of the information,
which charged Petitioner with felony theft of the Fentanyl. Pursuant to the plea
agreement, Count II was to be dismissed and Petitioner’s potential sentence was limited.
1.G. Ex. 4 at 1-2. The plea agreement provided that Petitioner was “to earn misdemeanor
treatment once all terms and conditions have been satisfied.” I.G. Ex. 4 at 1.

On November 2, 2015, the state court judge accepted Petitioner’s guilty plea and entered
a judgment of guilty of felony theft of Fentanyl. The state court judge specified that he
“enters judgment conditionally pursuant to [Ind. Code §] 35-38-1-1.5 as a Class D felony
subject to potential reduction to a Class A misdemeanor provided the defendant complies
with all terms and conditions of probation.” IG. Ex. 5 at 1. Conditional judgment in the
state court is authorized by Ind. Code § 35-38-1-1.5 (2015). Count II was dismissed with
prejudice. I.G. Ex. 5. Petitioner was sentenced to 540 days of incarceration with four
days credit as time served and 536 days suspended. Petitioner was ordered to: pay
restitution of $966 to Elkhart General Hospital; continue with all treatment; pay assessed
fines and court costs; and serve 18 months of probation. I.G. Ex. 5. The criminal
sentencing order states specifically that “Judgment of Conviction entered.” I.G. Ex. 5

at 2. The document that establishes the terms of Petitioner’s probation states that the
state court entered the judgment of guilt of felony theft conditionally pursuant to Ind.
Code § 35-38-1-1.5, and that there was “potential” for reduction to misdemeanor charges
contingent on Petitioner meeting all terms and conditions of probation. I.G. Ex. 6.
Petitioner does not dispute that he has not yet satisfied the terms of his probation
agreement and he is not yet eligible to have the conditional felony conviction converted
to a misdemeanor. P. Br. at 4, 6.

b. Analysis

The LG. cites section 1128(a)(3) of the Act as the basis for Petitioner’s mandatory
exclusion. The statute requires the Secretary to exclude from participation any individual
or entity: (1) convicted of an offense under federal or state law; (2) the offense occurred
after August 21, 1996 (the date of enactment of the Health Insurance Portability and
Accountability Act of 1996); (3) the offense was committed in connection with the
delivery of a health care item or service, or with respect to any act or omission in a health
care program (other than Medicare or Medicaid) operated by or financed in whole or in
part by any federal, state, or local government agency; (4) the criminal offense was a
felony; and (5) the offense was related to fraud, theft, embezzlement, breach of fiduciary
responsibility, or other financial misconduct. Act § 1128(a)(3) (42 U.S.C. § 1320a-
7(a)(3)); 42 C.F.R. § 1001.101(c). I conclude that all the elements that trigger mandatory
exclusion under section 1128(a)(3) of the Act are satisfied in this case.

Petitioner was charged in state court with a state felony offense of theft of Fentanyl.
Petitioner does not dispute that he gained access to the drug through his work as a nurse
anesthetist at the hospital that owned the drug. Petitioner does not dispute that there is a
clear nexus between the theft of the Fentanyl, to which Petitioner had access due to his
work as a nurse anesthetist at the hospital, and the delivery of a health care item or
service not under Medicare or Medicaid. Petitioner does not dispute that the offense
occurred after August 21, 1996. However, Petitioner disputes that he was convicted of
felony theft on the theory that the state court entered a conditional judgment. Petitioner’s
arguments must be resolved against him as a matter of law.

Petitioner does not dispute the facts that the state court accepted his guilty plea and
specifically found Petitioner guilty of the class D felony of theft of the Fentanyl and that
the judgment of conviction was entered on the records of the court on November 2, 2015.
1.G. Ex. 5 at 2. Pursuant to section 1128(i) of the Act, an individual is convicted of a
criminal offense when: (1) a judgment of conviction has been entered by a federal, state,
or local court whether or not an appeal is pending or the record has been expunged; (2)
there is a finding of guilt in a court; (3) a plea of guilty or no contest is accepted by a
court; or (4) the individual has entered into any arrangement or program where judgment
of conviction has been withheld. 42 U.S.C. § 1320a-7(i)(1)-(4); 42 C.F.R. § 1001.2.
Therefore, under the Act, Petitioner was convicted of the felony when his guilty plea was
accepted, there was a finding of guilt based on the plea, and the judgment of conviction
was entered by the state court, all of which occurred on November 2, 2015. Even if
under the state law the conditional acceptance of the plea was treated as a withholding of
judgment, Petitioner is nevertheless considered to be convicted for purposes of section
1128(a) of the Act.

Furthermore, Ind. Code § 35-38-1-1.5 is titled “Converting Level 6 felony to Class A
misdemeanor” and that is exactly what the section provides for, that is, converting a
felony conviction to a misdemeanor. The state statue does not provide for a withholding
of entry of judgment or change the nature of the felony conviction until such time as the
conditions specified by the statute are satisfied. The statue authorizes a state court to
enter a judgment of conviction to a qualifying felony offense with the express provision
that it “will be converted” to a misdemeanor at a later date if certain conditions are
satisfied. Ind. Code § 35-38-1-1.5(a). The state court is not required to convert a felony
to a misdemeanor unless all conditions are met within the time specified and may not
convert the conviction if another offense is committed during the time specified. Ind.
Code § 35-38-1-1.5(c) — (d). The language of the Indiana statute is clear. The state court
judge enters a judgment of conviction of the qualifying felony and provides for it to be
converted to a misdemeanor if specified conditions are met by a specified time. The
statute does not provide that the felony conviction is not a felony conviction, only that it
may be changed at some point to a misdemeanor, if conditions are met. Petitioner argues
that pursuant to Ind. Code § 35-50-2-1, a conviction of a Class A misdemeanor under Ind.
Code § 35-38-1-1.5 is not a felony conviction. However, this provision has no
application to Petitioner as his felony conviction has not yet been converted to a Class A
misdemeanor. Petitioner has conceded in briefing that he is not yet eligible to have the
felony conviction converted to a misdemeanor. P. Br. at 4, 6. Accordingly, I find as fact
and conclude as a matter of law that Petitioner currently has a felony conviction that
triggers mandatory exclusion under section 1128(a)(3) of the Act.

Even if Petitioner’s conviction is later reduced to a misdemeanor, Petitioner’s conviction
occurred at the moment when Petitioner’s plea to the felony was accepted and a judgment
of conviction was entered. See, e.g., Carolyn Westin, DAB No. 1382 (1993), aff'd,
Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994) (discussing that Congress intended
to define the term “conviction” broadly and even if the criminal conviction is later
expunged, it remains a “conviction” under this civil federal statute). It is the felony
conviction that triggers section 1128(a)(3) of the Act and for which Congress directs
exclusion. The subsequent reduction of the felony to a misdemeanor has no impact.

Only reversal or vacation of the felony conviction on appeal would require that Petitioner
be reinstated. 42 C.F.R. § 1001.3005(a).

Accordingly, I conclude that the elements of section 1128(a)(3) of the Act are satisfied
and that Petitioner’s exclusion is required pursuant to section 1128(a)(3) of the Act.

4. Five years is the minimum authorized period of exclusion pursuant
to section 1128(a)(3) of the Act.

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

I have concluded that there is a basis to exclude Petitioner pursuant to section 1128(a)(3)
of the Act. Therefore, the I.G. must exclude Petitioner for a minimum period of five
years pursuant to section 1128(c)(3)(B) of the Act. The I.G. has no discretion to impose
a lesser period and I may not reduce the period of exclusion below five years.

Exclusion is effective 20 days from the date of the I.G.’s notice of exclusion to the
affected individual or entity. 42 C.F.R. § 1001.2002(b).

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare,
Medicaid, and all federal health care programs for the minimum statutory period of five
years, effective March 20, 2016.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Tina G. Caron a/k/a Tina G. Ehlenbach a/k/a Tina G. Henthorne,
(OI File No. H-15-42395-9),
Petitioner,
v.

The Inspector General.

Docket No. C-16-330

Decision No. CR4679

Date: August 12, 2016

DECISION

Petitioner, Tina G. Caron, a/k/a Tina G. Ehlenbach a/k/a Tina G. Henthorne, was a
certified nursing assistant working in Maine. The state agency responsible for licensing
and regulatory affairs terminated her participation in state medical assistance programs
after she was convicted of theft and forgery, and her actions were reported to state and
national nurse aide registries. Thereafter, as authorized by section 1128(b)(5) of the
Social Security Act (Act), the Inspector General (IG) has excluded her from participating
in Medicare, Medicaid, and all federal health care programs until the state agency
reinstates her participation. Petitioner appeals the IG exclusion.

For the reasons discussed below, I sustain the IG’s determination.

Background

By letter December 31, 2015, the IG advised Petitioner Caron that, because she had been
“suspended, excluded or otherwise sanctioned by the Maine Department of Health and

Human Services . . . for reasons bearing on [her] professional competence, professional
performance or financial integrity,” the IG was excluding her from participating in
Medicare, Medicaid, and all federal health care programs until the state agency reinstated
her. The letter explained that section 1128(b)(5) of the Act authorizes the exclusion.
December 31, 2015 Notice Letter.

Petitioner timely requested review.

The parties have submitted written arguments (IG Br.; P. Br.). With his brief, the IG
submitted seven exhibits (IG Exs. 1-7). In the absence of any objections, I admit into
evidence IG Exs. 1-7.

I directed the parties to indicate in their briefs whether a hearing would be necessary, and,
if so, to list proposed witnesses. I directed the parties to explain why the witness’
testimony would be relevant. Order and Schedule for Filing Briefs and Documentary
Evidence at 5. The IG responded that an in-person hearing is not necessary. IG Br. at 6.
Petitioner did not request an in-person hearing. P. Br.

Discussion

Because a state regulatory authority terminated Petitioner’s participation
in and reimbursement from all state medical assistance programs, the IG
may exclude her from federal program participation. '

Section 1128(b)(5) of the Act authorizes the Secretary of Health and Human Services to
exclude from participation in any federal health care program an individual who has been
suspended, excluded, or otherwise sanctioned under a state health care program for
reasons bearing on the individual’s professional competence, professional performance,
or financial integrity. See 42 C.F.R. § 1001.601.

Here, Petitioner Caron worked as a certified nursing assistant in a nursing home in
Caribou, Maine. IG Ex. 7. On December 4, 2014, she was convicted of theft and
forgery, having stolen checks from a nursing home resident and then cashed them. IG
Exs. 6, 7.

In a letter dated December 17, 2014, the Division of Licensing and Regulatory Services
of the Maine Department of Health and Human Services advised Petitioner Caron that,
based on its investigation, it found that she had misappropriated the property of a nursing
ome resident. Those findings would be recorded on the Maine Registry of Certified
Nursing Assistants and reported to the National Provider Data Bank. IG Exs. 2, 3.

Thereafter, based on the licensing board’s actions, the Maine Department of Health and
Human Services terminated Petitioner Caron’s participation in and reimbursement from

' T make this one finding of fact/conclusion of law.
all medical assistance programs administered by the department, which include the
Medicaid program. IG Ex. 4.

Petitioner concedes that the state has excluded her but protests her innocence,
maintaining that she was “set up.” P. Br. at 2. Federal regulations preclude such a
collateral attack:

When the exclusion is based on the existence of ... a
determination by another Government agency, or any other
prior determination where the facts were adjudicated and a
final decision was made, the basis for the. . . determination 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); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009);
Roy Cosby Stark, DAB No. 1746 (2000).

Petitioner was thus excluded from the state health care programs for reasons bearing on
her professional performance and financial integrity — she stole from a resident of the
nursing home where she worked. The IG may therefore exclude her from program
participation under section 1128(b)(5). Her period of exclusion may not be less than the
period during which she is excluded by the state. 42 C.F.R. § 1001.601(b)(1).

Conclusion

The IG is authorized to exclude Petitioner from participating in Medicare, Medicaid, and
other federal health care programs for as long as her state exclusion continues.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Heartflow, Inc.,
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-460
Decision No. CR4678

Date: August 12, 2016

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services’ (CMS)
Medicare Administrative Contractor, as affirmed upon reconsideration and ratified by
CMS, to deny Medicare participation to Petitioner, Heartflow, Inc.

I. Background

Petitioner, seeking to participate in Medicare as an independent diagnostic testing facility
(IDTF), requested a hearing to challenge the determination to deny its application for
enrollment. CMS filed a brief in support of the denial along with 11 proposed exhibits
that are identified as CMS Exhibit (Ex.) 1-CMS Ex. 11. Petitioner filed a brief along
with six proposed exhibits that are identified as P. Ex. 1-P. Ex. 6. I directed the parties to
file supplemental briefs addressing certain questions that I raised. The parties did so, and
CMS filed an additional exhibit along with its supplemental brief. I receive CMS Ex. 1-
CMS Ex. 11 into evidence. I also receive P. Ex. 1-P. Ex. 6. Ido not receive CMS’s
supplemental exhibit. In my instructions to the parties concerning supplemental briefs, I
did not leave open the possibility that either party could supplement its evidentiary
exchange.
Neither CMS nor Petitioner requested that I convene a hearing in person and I find no
reason to do so. I make my decision based on the parties’ written exchanges.

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

The issue is whether the Medicare contractor acted within its authority to deny Petitioner
participation as an IDTF.

B. Findings of Fact and Conclusions of Law
An IDTF is a facility that performs certain diagnostic tests. It exists independently from

a physician’s office. 42 C.F.R. § 410.33(a)(1). In order to be certified to participate in
Medicare an IDTF must comply with regulatory requirements. 42 C.F.R. § 410.33(b).

One of the requirements that an IDTF must comply with in order to participate is that it
must perform tests under the authority of a supervising physician. 42 C.F.R.

§ 410.33(b)(1). The supervising physician must be proficient in the performance and
interpretation of each type of test performed by the IDTF. 42 C.F.R. § 410.33(b)(2).

CMS has authority to determine, at its discretion, what qualifications a supervising
physician must manifest in order to qualify to supervise an IDTF. The regulation states
that proficiency may be demonstrated by certification in specific areas of testing
performed by the IDTF or pursuant to criteria established by the Medicare carrier for the
service area in which the IDTF is located. 42 C.F.R. § 410.33(b)(2). However, the
regulation does not spell out in detail exactly what qualifications a supervising physician
must have in order to qualify to supervise a given type of test. The regulatory language
plainly leaves it to CMS — or to its delegate, a Medicare contractor — to determine what
qualifications are needed on a case-by-case basis.

CMS and its contractors also have discretion to determine how an IDTF may claim
reimbursement for the tests that it performs and also as to what tests are reimbursable by
Medicare. As a general rule, section 1862(a)(1) of the Social Security Act authorizes
CMS to determine which items or services may be reimbursed under Medicare. In
specific instances such determination may be made by regulation, by a local coverage
determination covering an area served by a Medicare contractor, or on a case-by-case
basis. In the end, however, it is a matter of discretion as to what items or services are
eligible for reimbursement.

I take notice that CMS has devised procedure codes (CPT codes) to describe the
diagnostic tests for which it will make reimbursement. As a general rule, an IDTF
seeking reimbursement for a particular test must claim reimbursement under the specific
CPT code that describes the test for which reimbursement is sought.

The contractor’s discretion to make case-by-case determinations includes making
determinations as to how Medicare will reimburse for novel, rarely provided, or unusual
procedures and tests. In the event that an IDTF seeks reimbursement for something that
falls within these categories, it must produce evidence that the procedure or test is not
already covered under an existing CPT code. The contractor has the authority to decide
whether or not it will allow the provider to claim reimbursement under an “unlisted
procedure” CPT code. In the end, however, the contractor has the authority to inform the
IDTF of the CPT code it must use to claim reimbursement. Medicare Claims Processing
Manual, CMS Pub. 100-02, Ch. 13 § 120. It is within the contractor’s discretionary
authority to reject a request from an IDTF to claim reimbursement for a test or procedure
pursuant to an unlisted CPT code.

Petitioner sought to be certified to claim reimbursement for a service known as Fractional
Flow Reserve computed tomography services (FFRct). This service is an interpretive
procedure which consists of further analysis of a test known as a Cardiac Computed
Topography (CT) scan. CMS Ex. 10; CMS Ex. 11. The purpose of FFRct is to analyze a
CT scan so as to determine whether there is coronary artery disease or other disease
affecting a patient’s heart. It is not an additional test so much as it is an interpretation of
atest. Id. What Petitioner proposed was to examine results of CT scans performed
elsewhere and uploaded digitally to Petitioner, using FFRct software. Petitioner
proposed to use this software in conjunction with uploaded CT scan results to create a
personal, digital, three-dimensional model of a patient’s arteries, which it would return to
clinicians for their use. CMS Ex. 11 at 3.

Petitioner proposed to claim reimbursement for FFRct under CPT code 93799, a code
that is intended to capture unlisted cardiovascular services or procedures that are not
captured under other CPT codes. The contractor denied Petitioner’s application,
essentially because it found that Petitioner sought to perform a non-reimbursable service.

After review of Petitioner’s application, the contractor determined that CPT code 75574
covered the CT scan and subsequent analyses, including FFRct. It found that Petitioner
could not claim reimbursement pursuant to CPT code 93799 because the service that
Petitioner intended to seek reimbursement for, FFRct, was considered to be an integral
component of the CT scan. Consequently, Petitioner could not claim reimbursement for
something that was coverable under CPT code 75574 as an independent service. Nor
could Petitioner claim reimbursement for FFRct under CPT code 75574 inasmuch as
Petitioner would not perform the CT scan of which FFRct is an integral component.

The contractor determined also that a board-certified radiologist must supervise the CT
scan and consequently, integral components of that scan such as FFRct. The supervising
physician that Petitioner intended to use to perform FFRct is not a board-certified
radiologist. The contractor denied Petitioner’s application for that reason, in addition to
its determination that Petitioner sought to provide a non-reimbursable service.

I do not have the authority to second-guess or look behind the contractor’s
determinations. As I have stated, the contractor has discretion, not only to determine
what services are reimbursable, but also what qualifications a supervisory physician at an
IDTF must possess. I must affirm the contractor’s determination so long as the
contractor acted within the ambit of its discretionary authority. Douglas Bradley, M.D.,
DAB No. 2663 at 13-14 (2015); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19
(2009), aff'd, Anmed v. Sebalius, 710 F. Supp. 2d 167 (D. Mass. 2010); Latantia Bussell,
M.D., DAB No. 1712 (2008).

In this case the contractor plainly acted within the ambit of its discretion. As I have
stated, the regulations confer on the contractor the discretion to determine the necessary
qualifications of a supervisory physician at an IDTF. Here, the contractor made an
evaluation and determined that a board-certified radiologist must supervise the
performance of CT scans and included analyses. Moreover, CMS has delegated to the
contractor the authority to determine, on a case-by-case basis, what procedure codes will
apply to given items or services. That is entirely consistent with CMS’s statutory
authority to determine what is necessary, reasonable, and eligible for payment. The
contractor’s determination in this case is a reasonable discretionary determination that it
will not accept reimbursement claims for FFRct analyses separately and apart from
claims for the CT scans from which they are derived.

Petitioner argues at length that I should consider the merits of allowing separate
reimbursement claims for FFRct analyses. It argues additionally that the physician who it
relies on to supervise the performance of these analyses is qualified to do so even if he is
not a board-certified radiologist. These arguments effectively demand that I second-
guess the contractor’s exercise of discretion. I do not have the authority to do so.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division

Shona Alexander, NP,
(NPI: 1750416061 / PTAN: 2021506554),
Petitioner,

v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-406
Decision No. CR4675
Date: August 8, 2016
DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner Shona
Alexander, NP, is February 27, 2015, with retrospective billing privileges beginning
January 28, 2015.

I. Background and Procedural History

Cahaba Government Benefits Administrators, LLC (Cahaba), a Medicare administrative
contractor (MAC), notified Petitioner’s employer, Life Line Community Healthcare (Life
Line), by letter dated May 5, 2015, that her Medicare enrollment application had been
approved with a period for retrospective billing beginning January 28, 2015. Centers for
Medicare & Medicaid Services (CMS) Exhibit (Ex.) | at 15-17. On May 5, 2015,
Petitioner requested reconsideration of the initial determination and requested that the
“effective date” be changed to January 22, 2015, the date Petitioner first began providing
services to Medicare beneficiaries at Life Line. CMS Ex. | at 4. Cahaba notified Life
Line by letter dated March 2, 2016, that Petitioner’s request for reconsideration was
denied. CMS Ex. | at 1-3. The reconsidered determination states that Petitioner’s
enrollment applications were received on February 27, 2015. CMS Ex. | at 2. The
reconsidered determination further explains that pursuant to 42 C.F.R. §§ 424.520(d), and
424.521(a)(1), the effective date of enrollment and billing privileges would be February

27,2015, the date the applications were received by Cahaba, and the first day authorized
for retrospective billing would be January 28, 2015. CMS Ex. | at 1-2.

Petitioner requested a hearing before an administrative law judge (ALJ) on March 7,
2016. The case was assigned to me on March 24, 2016, for hearing and decision, and an
Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction.

CMS filed a motion for summary judgment and CMS Ex. | on April 25,2016. Also on
April 25, 2016, Petitioner filed two documents, which appear in the Departmental
Appeals Board Electronic Filing System (DAB E-File) as Item #8 and Item #9. The
documents are not marked as required by the Civil Remedies Division Procedures
(CRDP) § 14. However, there is little risk for confusion in referring to the documents so
they were not rejected or returned for correction. I treat the document appearing as Item
#7 as if marked Petitioner’s exhibit (P. Ex.) 1 and the document appearing as Item #8 as
if marked P. Ex. 2. On June 10, 2016, CMS waived filing a reply brief.

Petitioner has not objected to my consideration of CMS Ex. | and it is admitted as
evidence. CMS did not object to my consideration of P. Exs. 1 and 2 and they are
admitted as evidence.

II. Discussion
A. Applicable Law

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

§§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).

' Petitioner is a “supplier” under the Act and the regulations. 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.

Administration of the Part B program is through contractors such as Cahaba. 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,
including the right to a hearing and judicial review of certain enrollment determinations.
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.

Petitioner, a nurse practitioner, is a nonphysician practitioner. The effective date of
enrollment in Medicare of a physician, nonphysician practitioner, and physician and
nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d). The
effective date of enrollment for a physician or nonphysician practitioner may only be the
later of two dates: the date when the physician filed an application for enrollment that
was subsequently approved by a Medicare contractor charged with reviewing the
application on behalf of CMS; or the date when the physician first began providing
services at a new practice location. Id. An enrolled physician or nonphysician
practitioner may retrospectively bill Medicare for services provided to Medicare eligible
beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances
precluded enrollment before the services were provided. Retrospective billing for up to
90 days prior to the effective date of enrollment is permitted only in case of a
Presidentially-declared disaster pursuant to 42 U.S.C. §§ 5121-5206. 42 CFR.

§ 424.521.

The Secretary has issued regulations that establish the right to a hearing and judicial
review of certain enrollment determinations. Act § 1866(j) (42 U.S.C. § 1395cc(j)).
Pursuant to section 1866(h)(1) and (j)(8), a provider or supplier whose enrollment
application or renewal application is denied is entitled to an administrative hearing and
judicial review. Pursuant to 42 C.F.R. § 424.545(a), a provider or supplier denied
enrollment in Medicare or whose Medicare enrollment and billing privileges are revoked
has the right to administrative and judicial review in accordance with 42 C.F.R. pt. 498.
Appeal and review rights are specified by 42 C.F.R. § 498.5.

B. Issues
The issues in this case are:
Whether or not summary judgment is appropriate; and

Whether the effective date of Petitioner’s Medicare enrollment and billing
privileges is February 27, 2015.
C. Findings of Fact, Conclusions of Law, and Analysis
My conclusions of law are set forth in bold followed by my findings of fact and analysis.
1. Summary judgment is appropriate.

Summary judgment is not automatic upon request but is limited to certain specific
conditions. The Secretary’s regulations that establish the procedure to be followed in
adjudicating Petitioner’s case are at 42 C.F.R. pt. 498. 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. pt. 498. See,
e.g., Illinois Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med.
Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).
The Board also has recognized that the Federal Rules of Civil Procedure do not apply in
administrative adjudications such as this, but the Board has accepted that Federal Rule of
Civil Procedure 56 and related cases provide useful guidance for determining whether
summary judgment is appropriate. Furthermore, a summary judgment procedure was
adopted as a matter of judicial economy within my authority to regulate the course of
proceedings and made available to the parties in the litigation of this case by my
Prehearing Order dated March 24, 2016, paragraph II.G. The parties were given notice
by the Prehearing Order that summary judgment is an available procedural device and
that the law as it has developed related to Federal Rule of Civil Procedure 56 will be
applied. The parties were advised that a fact alleged and not specifically denied, may be
accepted as true for purposes of ruling upon a motion for summary judgment. The parties
were also advised that on summary judgment evidence is considered admissible and true
unless a specific objection is made. Prehearing Order § II.G.

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

The standard for deciding a case on summary judgment and an ALJ’s decision-making in
deciding a summary judgment motion 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 also has recognized that on summary judgment it is
appropriate for the ALJ to consider whether a rational trier of fact could find that the
party’s evidence would be sufficient to meet that party’s evidentiary burden. Dumas
Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010). The Secretary has not provided for
the allocation of the burden of persuasion or the quantum of evidence in 42 C.F R. pt.
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. pt. 498. Batavia Nursing &
Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v.
Thompson, 129 Fed. App’x 181 (6th Cir. 2005).

The material facts in this case are not disputed and there is no genuine dispute as to any
material fact that requires a trial. The issues in this case that require resolution are issues
of law related to the interpretation and application of the regulations that govern
enrollment and billing privileges in the Medicare program to the undisputed facts of this
case. Accordingly, summary judgment is appropriate.

2. Pursuant to 42 C.F.R. § 424.520(d), Petitioner’s effective date of
Medicare enrollment was February 27, 2015, the date of filing of a
Medicare enrollment application that Cahaba was able to process to
approval.

3. Pursuant to 42 C.F R. § 424.521(a)(1), Petitioner was authorized to
bill Medicare for services provided to Medicare-eligible beneficiaries
up to 30 days prior to her effective date of enrollment, i.e., beginning
on January 28, 2015.

a. Facts

The material facts are not disputed and any inferences are drawn in Petitioner’s favor on
summary judgment.

Petitioner, a nurse practitioner, asserts that she began providing services for Life Line on
January 22, 2015. RFH at 1-2; P. Exs. 1-2. The documents Petitioner submitted show
that she provided services at Life Line as early as January 22,2015. P. Ex. 1-2.
Petitioner does not dispute that her Forms CMS- 855] (Medicare enrollment application)
and CMS-855R (reassignment of Medicare claims) were received by Cahaba on February
27,2015. In fact, Petitioner concedes in her request for hearing that Cahaba did not
receive her enrollment application until February 27, 2015. RFH at 1.
b. Analysis

Petitioner requests that her effective date of enrollment be changed so that she can
retrospectively bill beginning on January 22, 2015, the date she first provided service at
Life Line. RFH at 2. Petitioner argues that Life Line “was in the beginning stages of
working with the MACS”, and that affected the timely submission of all of the necessary
paperwork. RFH at 1. Petitioner’s exhibits show that she provided services on January
22,2015. P. Exs. 1-2. Petitioner argues that the facts that she began providing services
on January 22, 2015, and that there was only a slight delay in filing her enrollment
application, warrants a change in her effective date of enrollment and her retrospective
billing date from January 28, 2015 to January 22,2015. RFH at 1-2.

There is no dispute that Petitioner filed her Medicare enrollment and reassignment
applications and that they were received by Cahaba on February 27, 2015, and
subsequently approved. The effective date of enrollment in Medicare of a physician,
nonphysician practitioner, and physician and nonphysician practitioner organizations is
governed by 42 C.F.R. § 424.520(d). The effective date of enrollment for a physician or
nonphysician practitioner may only be the later of two dates: the date when the physician
filed an application for enrollment that was subsequently approved by a Medicare
contractor charged with reviewing the application on behalf of CMS; or the date when the
physician first began providing services at a new practice location. 42 C.F.R.

§ 424.520(d). An enrolled physician or nonphysician practitioner may retrospectively
bill Medicare for services provided to Medicare eligible beneficiaries up to 30 days prior
to the effective date of enrollment, if circumstances precluded enrollment before the
services were provided. 42 C.F.R. § 424.521.

Although Petitioner began providing services on January 22, 2015, the regulation
provides that it is the later of the date of filing a Medicare enrollment application or the
date services were first provided that controls. 42 C.F.R. § 424.520(d). Retrospective
billing is permitted for 30 days prior to the effective date of enrollment and billing
privileges, except in a situation not presented in this case. 42 C.F.R. § 424.521(a)(1).
There is no dispute that Petitioner’s Forms CMS-855I and CMS-855R were not received
by Cahaba until February 27, 2015. Petitioner provides no evidence showing that she
was actively enrolled in Medicare prior to February 27, 2015. Petitioner also offers no
evidence, such as a certified mail receipt or record of electronic filing that shows a date
of filing earlier than the date of receipt by Cahaba. The regulation is clear that the
effective date of enrollment is the date of the filing of the application which was
subsequently approved. 42 C.F.R. § 424.520(d). Petitioner’s enrollment application that
was processed to approval was received by Cahaba on February 27, 2016 and the date of
receipt is treated as the date of filing. Absent evidence of an earlier filing date, February
27, 2016, is the earliest effective date of Petitioner’s enrollment. Retrospective billing
privileges extend 30 days prior to the effective date of enrollment, that is, January 28,
2015, in this case. 42 C.F.R. § 424.521 (a)(1).
Petitioner’s arguments may be construed as request for equitable relief. However, I do
not have the authority to grant equitable relief in the form of an earlier effective date of
enrollment. US Ultrasound, DAB No. 2302 at 8 (2010), (“[nJeither the ALJ nor the
Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who
does not meet statutory or regulatory requirements.”’). Petitioner points to no authority by
which I may grant her relief from the applicable regulatory requirements. I also have no
authority to declare statutes or regulations invalid or ultra vires. 18661CPayday.com,
L.L.C., DAB No. 2289 at 14 (2009) (“[a]n ALJ is bound by applicable laws and
regulations and may not invalidate either a law or regulation on any ground.”).

Accordingly, I conclude that, pursuant to 42 C.F.R. § 424.520(d), Petitioner’s effective
date of Medicare enrollment and billing privileges is February 27, 2015. Pursuant to
42 CFR. § 424.521(a)(1), Petitioner may retrospectively bill beginning January 28,
2015.
III. Conclusion

For the foregoing reasons, I conclude that the effective date of Petitioner’s Medicare
enrollment and billing privileges was February 27, 2015, with a 30-day period for
retrospective billing beginning on January 28, 2015.

/s/
Keith W. Sickendick
Administrative Law Judge