Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Arkady Stern, M.D.,
Petitioner,
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-57
Decision No. CR2078

Date: February 26, 2010

DECISION

I find that Petitioner has offered no substantive grounds for me to find that CMS and its
contractor incorrectly determined the effective date of his participation in the Medicare
program.

I. Background

Petitioner is a physician. He filed a hearing request challenging a reconsideration
determination by Palmetto GBA, a Medicare contractor (Palmetto). In that determination
the contractor sustained its previous determination that the effective date of Petitioner’s
participation in Medicare is May 19, 2009. In Petitioner’s hearing request he contends
that his effective date of participation should be an unspecified date that is earlier than
May 19. He now asserts that his effective participation date should be October 10, 2008.

CMS moved to dismiss Petitioner’s hearing request, arguing that Petitioner had no right
to a hearing to challenge the effective date of his participation. On December 15, 2009, I
issued a ruling in which I denied that motion. I directed CMS to file a pre-hearing
exchange addressing the merits of the case. CMS complied with this order on December
22, 2009, filing a brief and six proposed exhibits which it designated as CMS Ex. | —
CMS Ex. 6. On January 14, 2010, Petitioner filed his pre-hearing exchange which
included a brief and several unlabeled documents. | identify the declaration of Arkady
Stern as P. Ex. 1, the declaration of Milana Kalika as P. Ex. 2, a January 7, 2010 letter to
Petitioner from Palmetto as P. Ex. 3, and an October 2, 2009 letter from Palmetto to
Petitioner as P. Ex. 4. I receive into the record CMS Ex. | — CMS Ex. 6 and P. Ex. 1 — P.
Ex. 4.

Counsel for CMS advised me that he does not wish to cross examine either Dr. Stern or
Ms. Kalika. There is, therefore, no need for me to conduct further proceedings before I
decide this case.

IL. Issue, findings of fact and conclusions of law
A. Issue

The issue in this case is whether Palmetto and CMS properly determined the effective
date of Petitioner’s participation in Medicare to be May 19, 2009.'

B. Findings of fact and conclusions of law
I make the following findings of fact and conclusions of law.

1. The effective date of a physician’s participation in Medicare must be
the later of the following: the date when the physician files an
application for enrollment that is subsequently approved by a
Medicare contractor; or the date when the physician first begins
providing services at a new practice location.

The effective date of a physician’s enrollment in Medicare is governed by regulation.
That date must be the /ater of: the date when the physician files an application for
enrollment that is subsequently approved by a Medicare contractor; or the date when the
physician first begins providing services at a new practice location. 42 C.F.R.

§ 424.520(d). The regulation allows for no discretion. I have no authority to order CMS
to award an effective date of participation to a physician that is earlier than that which the
regulation directs.

' Palmetto informed Petitioner by letter dated August 10, 2009 that his effective date was
May 19, 2009. CMS Ex. 2. On January 7, 2010, Palmetto sent a letter to Petitioner
informing him that his effective date was May 17, 2009. P. Ex. 3. I make no finding as
to this apparent discrepancy as neither Petitioner nor CMS has made an issue of it.
2. The effective date of Petitioner’s participation in Medicare derives
from the date when he submitted an application that was subsequently
approved by Palmetto. Petitioner has offered no evidence to establish
that he is entitled to an earlier effective date of participation.

The undisputed facts of this case are that Petitioner filed an application for enrollment in
Medicare on May 19, 2009. CMS Ex. 6. The application contained an error. Petitioner
requested an effective date of participation of “October 10, 2009,” a date that comes after
the application date, and for that reason Palmetto returned it to Petitioner. Jd., at 17;
CMS Exs. 3, 5. Petitioner then filed a revised application on June 19, 2009. CMS Exs.
3, 4. Palmetto approved that application and granted Petitioner an effective date of May
19, 2009, the date of his original application. CMS Ex. 1.

Petitioner may not receive an earlier effective date of participation. The earliest effective
date that he could have received, consistent with the requirements of 42 C.F.R.

§ 424.520(d), was his application date of May 19, 2009, and that is precisely the date that
Palmetto established.

Petitioner has offered no evidence to show that he should be granted an earlier effective
date. He has not offered persuasive evidence establishing that he filed an application for
enrollment earlier than May 19 that was accepted by the contractor. In his brief and in
his declaration (P. Ex. 1), Petitioner contends that he established his present practice
location in October 2008. He asserts that he immediately “contacted Medicare by phone
and instructed my billing service Advanced Billing Management to submit all required
documentation.” P. Ex. 1, at 1. According to him, this was done in October 2008. As
allegedly corroborating evidence Petitioner offers the declaration of Ms. Kalika (P. Ex. 2)
in which she contends that in October 2008 she submitted a “change of address”
application for Petitioner. /d. She asserts that she was subsequently advised by the
contractor in March 2009 that this application had been lost and that she immediately
followed up on this information by filing a new application on Petitioner’s behalf. Jd.

But, notwithstanding these assertions, Petitioner has come forward with no documents
showing that he filed an application for enrollment that is dated earlier than May 19,
2009. He has not produced a copy of the alleged prior application. Nor has he produced
copies of any correspondence between GBA and him showing that he filed a prior
application or supporting his assertion that GBA told him in March 2009 that the alleged
prior application was lost. I do not find either his or Ms. Kalika’s assertions that an
earlier application was filed with the contractor to be credible in the absence of any
corroborating documents.

I find also that Dr. Stern’s and Ms. Kalika’s assertions are belied in important respects by
the documents that Petitioner did file with Palmetto. The application that Petitioner filed
on May 19, 2009 is dated May 11, 2009. CMS Ex. 6, at 27. That is hardly an immediate
follow up to an alleged notification of Petitioner by Palmetto in March 2009 that a prior
application had been lost. Moreover, none of the documents submitted by Petitioner to
Palmetto which are in evidence in this case make any reference to an alleged October
2008 application.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Waterfront Terrace, ) Date: February 24, 2010

(CCN: 14-5939), )
)
Petitioner, )
)

-V.- ) Docket No. C-09-746

) Decision No. CR2076
Centers for Medicare & Medicaid )
Services. )
)

DECISION

For the reasons set forth below, I dismiss as untimely the hearing request filed by
Petitioner, Waterfront Terrace (Petitioner or facility).

I. Background
The following facts are not in dispute:

Petitioner is a skilled nursing facility located in Chicago, Illinois, that participates in the
Medicare program as a provider of services. Based on surveys (health and Life Safety
Code) completed January 29, 2009, the Illinois Department of Public Health (state
agency) determined that the facility was not in substantial compliance with Medicare
participation requirements. See, CMS Exs. 1-3, 5. In a notice letter dated April 15, 2009,
the state agency advised Petitioner that the Centers for Medicare & Medicaid Services
(CMS) was therefore imposing a denial of payment for new admissions (DPNA),
effective May 4, 2009. In addition, the letter warned that the state agency would
recommend termination of the facility’s provider agreement if it did not achieve
substantial compliance by July 29, 2009. CMS Ex. 3.
A section of the notice letter prominently captioned “Formal Appeal Rights” advised
Petitioner of its right “to contest determinations of non-compliance with Medicare
regulations that result in imposed remedies,” citing the regulations that govern such
appeals — 42 C.F.R. § 498.40 et seq. The letter then said that

[ijn order to be granted a hearing for the Category 1 or 2
remedies' imposed in this notice, the facility must file a
written request for a hearing within 60 days from the receipt
of this notice.

CMS Ex. 3 at 1. The letter told Petitioner where to send its hearing request and explained
that such a request “must” identify the specific issues and the findings of fact and
conclusions of law with which the facility disagrees, and specify the basis for contending
that CMS’s findings and conclusions are incorrect. CMS Ex. 3.

The state agency sent the notice letter by certified mail, and CMS submits a return receipt
showing that the facility received the letter on April 20, 2009. CMS Ex. 4.

Petitioner did not request a hearing within 60 days of receiving the notice.

Ina letter dated July 14, 2009, CMS advised the facility that its Medicare provider
agreement would terminate effective July 29, 2009, because, based on surveys completed
January 29, March 5, July 2, and July 8, 2009, the facility did not attain substantial
compliance with participation requirements. CMS Ex. 5. The notice letter advised
Petitioner of its right to appeal the noncompliance findings that resulted in the imposition
of that remedy (termination). CMS Ex. 5, at 4.7

The letter also reminded the facility that the state agency had already imposed a DPNA,
and had “previously advised of your right to appeal the noncompliance that resulted in”
the agency’s imposing the DPNA. CMS referred Petitioner to the state agency’s April

' DPNA is a category 2 remedy. 42 C.F.R. § 488.408(d). Termination is a category 3
remedy. 42 C.F.R. § 488.408(e).

> CMS subsequently determined that the facility achieved substantial compliance on July
9, 2009. Ina letter dated August 6, 2009, it advised Petitioner that it rescinded the
termination and discontinued the DPNA effective July 9, 2009. CMS Ex. 6. Because the
termination was rescinded, Petitioner is not entitled to a hearing on the findings that
resulted in the imposition of that remedy. 42 C.F.R. § 498.3(d)(10)(1i); Fountain Lake
Health & Rehabilitation, DAB No. 1985 (2005); Schowalter Villa, DAB No. 1688
(1999).
15, 2009 notice, instructing it to “note the deadline for that appeal. As of this date, we
have not received a request for a hearing.” CMS Ex. 5, at 4.

Ina letter dated and mailed September 14, 2009, Petitioner refers to the July 14, 2009
notice, but then requests a hearing on the imposition of the DPNA. CMS Ex. 7.

CMS moves to dismiss the request as untimely.*
IL. Discussion

Petitioner is not entitled to a hearing because it did not file a
timely hearing request and no good cause justifies
extending the time for filing.*

Section 1866(h) of the Social Security Act (Act) authorizes administrative review of
determinations that a provider fails to comply substantially with Medicare program
requirements “to the same extent as is provided in section 205(b) [of the Act].” Under
section 205(b), the Secretary must provide reasonable notice and opportunity for a
hearing “[u]pon request by [the affected party] who makes a showing in writing that his
or her rights may be prejudiced” by the Secretary’s decision. The hearing request “must
be filed within sixty days” after receipt of the notice of CMS’s determination. (emphasis
added). Act, section 205(b). The 60-day time limit is thus a statutory requirement. See,
Cary Health and Rehabilitation Center, DAB No. 1771, at 8-9 (2001).

Similarly, the regulations mandate that the affected party “file the request in writing
within 60 days from receipt of the notice . . . unless that period is extended... .” 42
C.F.R. § 498.40(a). On motion of a party, or on his/her own motion, the ALJ may
dismiss a hearing request where that request was not timely filed and the time for filing
was not extended. 42 C.F.R. § 498.70(c).

By regulation, CMS may authorize the state agency to give a provider notice of: 1) its
noncompliance; 2) the remedy imposed and its effective date; and 3) the provider’s
“[r]ight to appeal the determination leading to the remedy.” 42 C.F.R. § 488.402(f).
Consistent with this authority, the state agency here sent the April 15, 2009 notice letter,
which informed Petitioner that it was not in substantial compliance, that a penalty
(DPNA) was imposed, and that Petitioner could appeal the determination of

> CMS accompanies its motion and brief with seven exhibits (CMS Exs. 1-7). With its
brief in opposition, Petitioner submits two exhibits (P. Exs. 1-2), which duplicate CMS
Exs. 3 and 5.

+ T make this one finding of fact/conclusion of law.
noncompliance that led to the DPNA, but that its written request for hearing had to be
filed within 60 days of its receiving the notice letter. Petitioner unquestionably received
the notice letter on April 20, 2009, so to challenge the survey findings that led to the
DPNA, Petitioner’s hearing request had to be filed no later than June 19, 2009.

Petitioner’s September 14, 2009 hearing request was therefore untimely, and, absent a
showing of good cause for my granting an extension of time in which to file, should be
dismissed pursuant to 42 C.F.R. § 498.70.

Petitioner argues that the April 15, 2009 notice letter was defective because, although it
identified termination as a category 3 remedy, it did not say specifically that a DPNA was
either category | or category 2. Petitioner characterizes the notice as “the most circuitous
language imaginable,” and claims that no lay person could reasonably have been
expected to understand it.> P. Br. at 3. I disagree.

The April 15 notice letter explicitly says that the facility may contest determinations of
noncompliance that result in remedies being imposed — precisely Petitioner’s situation —
and cites the governing regulations. Then the letter tells the facility how to request a
hearing and includes the critical language that the facility “must file a written request for
a hearing within 60 days from the receipt of this notice.” Thus, any reasonable person —
even a “lay person” — receiving this notice would know that the state was imposing a
DPNA based on its findings of noncompliance, and that the provider could appeal those
findings if it filed a written request within 60 days. See, Cary Health and Rehabilitation
Center, at 13 (where notice accurately sets out the timing and nature of the facility’s
appeal rights, the ALJ properly dismissed an untimely hearing request).

That the letter refers to category 1 and 2 remedies, without explicitly identifying a DPNA
as a category 2 remedy, does not detract from the notice letter’s explicit instructions. Nor
do I fault the state agency for identifying termination as a category 3 remedy. In so
doing, it clarified that an appeal responding to this particular notice would not include
review of the findings that resulted in termination (if, in fact, the facility were ultimately
terminated).

I note also that Petitioner suggests no other possible interpretation, and provides no
declaration or other evidence claiming that it had any alternative understanding of the
notice. If, in fact, Petitioner were genuinely confused, it should have sought clarification,

* Inote also that Petitioner is not merely a “lay person,” but a Medicare-certified provider
of services, which should be expected to possess at least a rudimentary understanding of
program rules and terminology. See, Heckler v. Cmty. Health Services of Crawford
County, 467 U.S. 51, 63 (1984) (Those who deal with the government are expected to
know the law.)
as instructed in the notice letter. CMS Ex. 3, at 2 (providing contact information “[i]f
you have any questions concerning this letter”); Cary Health and Rehabilitation Center,
at 27 (A notice letter that spells out appeal rights alerted the facility that “some
appealable action had been taken.” If the recipient is unsure of its significance, he should
at least seek clarification).

Petitioner also complains that the July 14, 2009 notice letter “added to the confusion.”
Inasmuch as the deadline for filing had long since passed by the time Petitioner received
the July 14 notice letter, it could not possibly have affected the facility’s decision about
responding to the April 15 notice. So, even if I agreed that the letter was confusing
(which I do not), that finding would be wholly irrelevant.

Il. Conclusion

Because Petitioner did not file its hearing request within 60 days of receiving the April
15, 2009 notice letter, and no good cause justifies my extending the time for filing, I
dismiss its request. 42 C.F.R. § 498.70(c).

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Kate Suskin, LICSW, ) Date: February 22, 2010

)
Petitioner, )
)

-V.- ) Docket No. C-09-665

) Decision No. CR2072
Centers for Medicare & Medicaid )
Services. )
)

DECISION

I deny the motion of the Centers for Medicare & Medicaid Services (CMS) that I dismiss
the hearing request filed by Petitioner, Kate Suskin, LICSW. I grant CMS’s motion for
summary disposition.
I. Background
Petitioner is a clinical social worker. She filed a hearing request challenging the effective
date of her enrollment in the Medicare program. CMS moved to dismiss Petitioner’s
hearing request, arguing that Petitioner had no right to a hearing. CMS moved for
summary disposition in the alternative. Petitioner did not respond to CMS’s motions.
CMS filed four proposed exhibits with its motion which it designated as CMS Ex. | —
CMS Ex. 4. I receive these exhibits into the record absent any opposition from
Petitioner.
II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. I should dismiss Petitioner’s hearing request; and
2. The undisputed material facts establish that CMS is entitled to summary
disposition.

B. Findings of fact and conclusions of law
I make the following findings of fact and conclusions of law (Findings).
I. There is no basis for me to dismiss Petitioner’s hearing request

CMS asserts that Petitioner has no right to a hearing to challenge the effective date of her
enrollment. The gravamen of CMS’s argument is that the regulations which grant
providers hearing rights concerning determinations about their enrollment eligibility, at
42 C.F.R. Part 424, grant only limited hearing rights to challenge denials of enrollment
applications or determinations to revoke Medicare enrollment. CMS reasons that a
challenge of the effective date of enrollment — as is the case here — is neither a challenge
of a denial nor of a revocation and thus, a party making such a challenge is not entitled to
a hearing.

CMS asserts that the hearing rights it grants to providers to challenge enrollment
determinations effectuate Congress’ intent expressed in the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003, codified at 42 U.S.C. §1395cc(h)(1)(A).
It asserts that it was never the intent of Congress, nor of CMS, to allow providers to
challenge the effective dates of their enrollment as opposed to determinations to either
deny or revoke Medicare enrollment.

However, there is a regulation which, on its face, explicitly confers appeal rights on all
providers who challenge the effective dates of their enrollment in Medicare. That
regulation is 42 C.F.R. § 498.3(b)(15), which defines an “initial determination” for which
hearing rights are granted as including:

The effective date of a Medicare provider agreement or supplier approval.

This language is explicit and, on its face, it confers hearing rights in precisely the
circumstance that is at issue here, a challenge by Petitioner to the effective date of her
enrollment in the Medicare program.

CMS contends that 42 C.F.R. § 498.3(b)(15) predates the more recently published
regulations governing provider enrollment hearings and is superseded by them. It asserts
that the Secretary never intended the broad language of 42 C.F.R. § 498.3(b)(15) to
apply to provider enrollment hearings and that the regulation’s language — admittedly
sweeping — was not intended to apply in such situations.
The problem with this argument is that it fails to address the very plain language of the
regulation. There is nothing in 42 C.F.R. § 498.3(b)(15) to suggest that it is limited as
CMS urges. Nor is there any language in the Part 424 regulations that suggests that 42
C.F.R. § 498.3(b)(15) is inapplicable. I therefore deny CMS’s motion to dismiss.’

2. The undisputed facts establish that CMS is entitled to summary
disposition.

By regulation the effective date of participation of an enrolled physician or other
practitioner must be the /ater of the following dates: the date of filing of a Medicare
enrollment application that was subsequently approved by a Medicare contractor or the
date an enrolled physician or nonphysician practitioner first began furnishing services at a
new practice location. 42 C.F.R. § 424.520(d).

In this case the undisputed facts establish that Petitioner filed an application to enroll in
Medicare on March 9, 2009. CMS Ex. 1, at 1; CMS Ex. 2. There is no evidence
showing that Petitioner filed an application at an earlier date. A Medicare contractor
subsequently approved Petitioner’s enrollment application with an effective date of
March 3, 2009. CMS Ex. 3, at 1.

The earliest effective date when Petitioner could have been enrolled is the date when she
submitted an enrollment application that was “subsequently approved” by a Medicare
contractor. That would have been March 9, 2009. The undisputed facts of this case
establish that Petitioner received an effective date that predated her application date by a
few days.’ But, assuming that to be so, there is simply no basis in law to order that she
be given an earlier effective enrollment date.

/s/
Steven T. Kessel
Administrative Law Judge

' I do not mean to suggest that CMS could not limit hearings in provider enrollment cases
to hearings over determinations to deny or revoke enrollments. The obvious fix would be
for the Secretary to publish a regulation that specifies that 42 C.F.R.

§ 498.3(b)(15) does not apply to such cases.

> The March 3 effective date may actually be erroneous in that it appears that it is several
days earlier than the date when Petitioner submitted her application. CMS does not
explain the reasons for giving Petitioner what appears to be an incorrect effective date. I
do not disturb it, however, inasmuch as CMS hasn’t asserted error.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)

Samuel T. Houston, M.D., ) Date: February 22, 2010
)
Petitioner, )
)

-V.- ) Docket No. C-10-69
) Decision No. CR2071
Centers for Medicare & Medicaid )
Services. )
)
DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to
revoke the provider enrollment of Petitioner, Samuel T. Houston, M.D.

I. Background

Petitioner is a physician. CMS, through its intermediary, Pinnacle Business Solutions
(Pinnacle), determined to revoke Petitioner’s enrollment as a participating Medicare
provider. CMS revoked Petitioner’s participation because it determined that his license
to practice medicine was suspended. Petitioner requested reconsideration of CMS’s
determination and that was eventually denied. Then, he requested a hearing and the case
was assigned to me for a hearing and a decision.

Both CMS and Petitioner have moved for summary disposition of this case. In support of
its motion CMS filed 10 proposed exhibits which it identified as CMS Ex. 1 —- CMS Ex.
10. Petitioner filed five proposed exhibits which he identified as P. Ex. 1 — P Ex. 5. I
receive the parties’ proposed exhibits into the record.
IL. Issue, findings of fact and conclusions of law
A. Issue

The issue in this case is whether a basis exists for CMS to revoke Petitioner’s enrollment
as a participating provider in Medicare.

B. Findings of fact and conclusions of law
I make the following findings of fact and conclusions of law (Findings).
1. A basis exists for CMS to revoke Petitioner’s enrollment in Medicare.

There is no dispute that Petitioner’s license to practice medicine in the State of Arkansas
was suspended effective December 5, 2008. See CMS Ex. 1, at 2. CMS determined to
revoke Petitioner’s enrollment as a participating Medicare provider based on that
suspension and also based on its determination that Petitioner failed to report timely to
CMS that his license had been suspended.

The undisputed facts establish that CMS was authorized to revoke Petitioner’s enrollment
because they show that Petitioner ceased to comply with enrollment requirements as the
consequence of the suspension of his license to practice medicine. CMS may revoke the
billing privileges (enrollment) of a participating Medicare provider for noncompliance
with Medicare enrollment requirements. 42 C.F.R. § 424.535(a)(1). Such
noncompliance includes suspension or revocation of a physician’s license to practice
medicine. Medicare will pay for a physician’s services to its beneficiaries only where the
physician is licensed to practice medicine in the State where he is providing them. 42
C.F.R. § 410.20(b). Thus, a physician who has had his license to practice suspended or
revoked, such as Petitioner, is by definition unqualified to provide services to Medicare
beneficiaries and, as a consequence, not in compliance with Medicare enrollment
requirements.

An additional ground exists for revoking Petitioner’s enrollment. Regulations require a
participating physician to report to Medicare within 90 days any changes to information
that was furnished on his or her enrollment application. 42 C.F.R. § 424.520(b) (2008).
Failure by a physician to do so is a basis for revocation of his or her Medicare enrollment.
Id. Petitioner failed timely to report to Medicare the fact of his license suspension.

2. Petitioner was not denied due process

Petitioner asserts that CMS denied him due process because it failed to apprise him of the
reasons for revoking his Medicare enrollment. He argues from this asserted failure of
notice that CMS’s determination to revoke his enrollment is invalid. I find this argument
to be without merit.

Petitioner argues that the notice that Pinnacle sent to him informing him of the enrollment
revocation was defective in that it failed to state a reason for Pinnacle’s (and CMS’s)
action. See CMS Ex. 2. Petitioner reasons that this notice shortcoming invalidates all
actions taken by CMS including the determination to revoke Petitioner’s enrollment.

I disagree. It is true, as Petitioner contends, that the notice that Pinnacle sent to him cites
only the regulatory basis for revoking Petitioner’s enrollment without explaining why the
cited regulations applied to his case. That was a defect. But, the defect was not
prejudicial in this case because CMS subsequently provided Petitioner with ample notice
of the reasons for revoking his enrollment and I gave Petitioner the opportunity to defend
himself against CMS’s determination. My decision in this case is not an appellate review
of CMS’s actions, it is de novo. In its brief supporting the revocation CMS gave
Petitioner a detailed statement of why CMS had determined to revoke his enrollment and
l afforded Petitioner the opportunity to respond to that determination, both with evidence
and with argument that I received de novo. Consequently, Petitioner has not been
prejudiced in any respect.

Petitioner argues additionally that Pinnacle incorrectly asserted that he was obliged to
report a change in his enrollment application within 30 days as opposed to the 90-day
reporting period that is stated at 42 C.F.R. § 424.520(b) (2008). But, Petitioner suffered
no harm even assuming that assertion to be correct. Whatever standard Pinnacle may
ave applied is irrelevant because I judge Petitioner only on the basis of whether he
complied with the 90-day reporting requirement.

Petitioner asserts that he was “informed” that notice was provided to all third party
payors of his suspension and he presumes that notice included a notice to CMS.
Petitioner’s brief at 8-9. But, Petitioner has provided no facts showing that he actually
provided such notice. He has not offered, for example, any copies of correspondence
between him and CMS or Pinnacle establishing that he gave CMS the required
information within 90 days.

Petitioner also argues that his failure to give CMS notice is irrelevant because CMS, in
fact, knew that his license to practice medicine had been suspended and that CMS
became aware of that within 90 days. However, the fact that CMS may have learned
about the suspension from a source other than Petitioner did not relieve Petitioner of his

duty to inform CMS of the change in his circumstances. He was explicitly required to
inform CMS and his failure to do so is a basis for revocation of his enrollment even if
CMS may have learned about the license suspension from another source.

Finally, Petitioner seems to argue that CMS may not prevail here unless it is established
that Petitioner’s license was suspended and that he failed to inform CMS of that fact
within 90 days. That is not so. License suspension and failure to inform CMS of a
change in circumstances are independent grounds for revocation of enrollment. Either
basis, standing alone, is sufficient authority for CMS to revoke Petitioner’s enrollment.
Thus, CMS may revoke Petitioner’s enrollment based on the suspension of his license to
practice medicine even if Petitioner gave timely notice to CMS of that suspension.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Decision No. CR2070
Centers for Medicare & Medicaid
Services.

In the Case of: )
)

Victor Alvarez, M.D., ) Date: February 22, 2010
)
Petitioner, )
)

-V.- ) Docket No. C-10-134

)
)
)
)

DECISION DENYING MOTION TO DISMISS AND
REMANDING CASE FOR RECONSIDERATION

I deny the motion of the Centers for Medicare & Medicaid Services (CMS) to dismiss this
case or, in the alternative, for summary disposition and I remand the case so that either
CMS or its contractor, Palmetto GBA (Palmetto), may conduct a reconsideration.

I. Background

Petitioner, Victor Alvarez, M.D., is a physician. His apparent employer, HCA Physician
Services (HCA), filed a hearing request on Petitioner’s behalf challenging the effective
date of Petitioner’s enrollment as a participating physician in the Medicare program. The
case was assigned to me for a hearing and a decision. | issued an initial pre-hearing order
which I superseded with a subsequent order. I directed the parties to brief issues relating
to whether Petitioner had a right to a hearing before me. CMS responded by moving to
dismiss Petitioner’s hearing request. CMS moved in the alternative for summary
disposition. Petitioner opposed CMS’s motions. CMS filed 10 proposed exhibits in
support of its motions, which it identified as CMS Ex. 1 - CMS Ex. 10. Petitioner filed
two exhibits which he identified as P. Ex. 1 and P. Ex. 2. I receive CMS Ex. 1 - CMS
Ex. 10 and P. Ex. | and P. Ex. 2 into the record.!
IL. Issues, findings of fact and conclusions of law
A. Issues

The issues in this case are whether:

1. A basis exists for me to dismiss Petitioner’s hearing request; and

2. Remand of this case to CMS is appropriate.

B. Findings of fact and conclusions of law

I make the following findings of fact and conclusions of law.

I. There exists no basis for me to dismiss the hearing request.
CMS makes three arguments to support its motion to dismiss.
First, CMS contends that the real party in interest is HCA, not Petitioner, and that HCA
has no right to a hearing because it is not the subject of the Medicare enrollment
determination that is at issue here.
CMS is correct in asserting that an employer of an affected provider has no right to a
hearing. The right to a hearing in this case extends uniquely to Petitioner. However,
Petitioner has offered evidence showing that HCA is serving only as Petitioner’s
representative and not seeking relief in its own right. P. Ex. 1. For that reason I conclude
that it is Petitioner, and not HCA, who seeks a hearing and a decision in this case.
Second, CMS asserts that Petitioner has no right to a hearing to challenge the effective
date of his enrollment. The gravamen of CMS’s argument is that the regulations which
grant providers hearing rights concerning determinations about their enrollment

eligibility, at 42 C.F.R. Part 424, grant only limited hearing rights to challenge denials of
enrollment applications or determinations to revoke Medicare enrollment. CMS reasons

' CMS filed its motion and exhibits on December 18, 2009. On January 14, 2010, it
moved to supplement its exchange with a more complete version of CMS Ex. 1.
Petitioner did not oppose this motion. I accept the version of CMS Ex. | that it filed on
January 14, 2010 in substitution for the December 18, 2009 version of the same exhibit.
that a challenge of the effective date of enrollment — as is the case here — is neither a
challenge of a denial nor of a revocation and thus, a party making such a challenge is not
entitled to a hearing.

CMS asserts that the hearing rights it grants to providers to challenge enrollment
leterminations effectuate Congress’ intent expressed in the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003, codified at 42 U.S.C. § 1395cce(h)(1)(A).
It asserts that it was never the intent of Congress, nor of CMS, to allow providers to
challenge the effective dates of their enrollment as opposed to determinations to either
leny or revoke Medicare enrollment.

However, there is a regulation which, on its face, explicitly confers appeal rights on all
providers who challenge the effective dates of their enrollment in Medicare. That
regulation is 42 C.F.R. § 498.3(b)(15), which defines an “initial determination” for which
hearing rights are granted as including:

The effective date of a Medicare provider agreement or supplier approval.

This language is explicit and, on its face, it confers hearing rights in precisely the
circumstance that is at issue here, a challenge by Petitioner to the effective date of its
enrollment in the Medicare program.

CMS contends that 42 C.F.R. § 498.3(b)(15) predates the more recently published
regulations governing provider enrollment hearings and is superseded by them. It asserts
that the Secretary never intended the broad language of the 42 C.F.R. § 498.3(b)(15) to
apply to provider enrollment hearings and that the regulation’s language — admittedly
sweeping — was not intended to apply in such situations.

The problem with this argument is that it fails to address the very plain language of the
regulation. There is nothing in 42 C.F.R. § 498.3(b)(15) to suggest that it is limited as
CMS urges. Nor is there any language in the Part 424 regulations that suggests that 42
C.F.R. § 498.3(b)(15) is inapplicable. I therefore deny CMS’s motion to dismiss on this
ground.

“ Ido not mean to suggest that CMS could not limit hearings in provider enrollment
cases to hearings over determinations to deny or revoke enrollments. The obvious fix
would be for the Secretary to publish a regulation that specifies that 42 C.F.R.

§ 498.3(b)(15) does not apply to such cases.
CMS’s third argument is that Petitioner has no right to a hearing because he never sought
reconsideration of the determination that he now seeks to challenge. That is true, but on
the other hand, neither CMS nor Palmetto ever extended the opportunity to request
reconsideration to Petitioner. Indeed, it is apparent from the documentation concerning
Petitioner’s applications to enroll in Medicare that Palmetto failed to provide Petitioner
with information that he would have needed in order to decide whether to request
reconsideration. For that reason, CMS’s argument for dismissal must fail.*

The undisputed facts establish the following history. Petitioner initially applied to enroll
as a physician in Medicare on or about November 13, 2008. By e-mail dated November
24, 2008, Petitioner’s then-representative was informed that Petitioner’s application had
been reviewed and no additional information would be required at that time. Petitioner’s
representative was also informed that he would receive written notification once the
“process” was complete. P. Ex. 2. On January 22, 2009, Palmetto sent a letter to
Petitioner’s representative. Palmetto advised the representative that it had sought certain
information concerning Petitioner’s application but that it had not received it to date. It
stated that, therefore, it had closed the application without enrolling Petitioner. CMS Ex.
1, at 1. It then advised Petitioner that, in order to enroll in Medicare, he must complete an
application, must add the name of a specified individual to the application (apparently,
the chief executive officer of Petitioner’s employer) as an authorized official, and must
resubmit his application.

Petitioner filed a second application for enrollment on February 16, 2009. CMS Ex. 2.
On February 25, 2009, Palmetto corresponded with Petitioner’s then-representative.
Palmetto advised him that it was unable to process the application because a person who
signed the application was not listed in its files as an authorized or delegated official. Id.,
at 1.

Petitioner appears to have filed a third application on March 13, 2009. On April 23,
2009, Palmetto sent an additional letter to Petitioner’s representative informing him that it
had not received requested information and was, therefore, closing the application. CMS
Ex. 3, at 1.

Petitioner then submitted yet an additional application on June 17, 2009. Palmetto
returned this application to Petitioner because the application contained a signature that
was copied. CMS Ex. 4.

3 In Finding 2 I explain that I am remanding this case in order to allow Palmetto or CMS
to make a reconsideration determination.
Finally, Petitioner applied again on August 10, 2009. CMS Ex. 5. On October 5, 2009,
Palmetto advised Petitioner’s representative that this application was approved and that
Petitioner was assigned an effective Medicare participation date of July 8, 2009.

None of the letters sent by Palmetto to Petitioner’s representatives contained any
language advising Petitioner of a right to request reconsideration from Palmetto’s actions.
Nor did the October 5 letter contain an explanation as to why July 8, 2009 — as opposed
to some other date — was selected by Palmetto as the effective date of participation.

Petitioner did not seek reconsideration from any of Palmetto’s letters. His representative
requested a hearing on November 9, 2009, asserting that Palmetto failed to apply
applicable guidelines in determining whether to accept Petitioner’s applications and in
establishing the effective date of his Medicare enrollment. CMS Ex. 6, at 1. In the
hearing request Petitioner’s representative also made arguments effectively challenging a
policy that CMS implemented via a regulation effective January 1, 2009. That regulation
effectively precludes a newly enrolled physician from obtaining reimbursement for items
or services provided to Medicare beneficiaries more than 30 days from the effective date
of the physician’s enrollment. 42 C.F.R. § 424.521.

The evident flaw in Palmetto’s review of Petitioner’s numerous applications for
enrollment is that it never advised Petitioner of his right to disagree with Palmetto’s
actions. At no point did Palmetto so much as suggest to Petitioner that he could seek
review of them. Consequently, Petitioner was cut off from the opportunity to challenge
the several instances in which Palmetto deemed applications to be “closed” or where
Palmetto refused to process Petitioner’s application.

Thus, although Petitioner never requested reconsideration, that is no basis to grant CMS’s
motion to dismiss. I would dismiss Petitioner’s hearing request had Palmetto or CMS
informed Petitioner that he could request reconsideration, and had Petitioner failed to
avail himself of that right. But, in the absence of notice, Petitioner cannot be held
accountable for failing to exercise a right of which he was not apprised.

2. Iremand this case to Palmetto and CMS in order that the
determination to establish July 8, 2009 as Petitioner’s effective date of
participation may be reconsidered.

I am electing to treat Petitioner’s November 9, 2009 hearing request as a request for
reconsideration inasmuch as reconsideration is a mandatory intermediate prerequisite for
requesting a hearing and reconsideration did not occur here.
On reconsideration, Palmetto and/or CMS should explain why July 8, 2009 (or any other
date that may result from reconsideration) is the correct effective date of Petitioner’s
enrollment in Medicare. If Palmetto and/or CMS determine not to make Petitioner’s

enrollment effective the date of any o:

the applications for enrollment that Petitioner filed

prior to his August 10, 2009 application, Palmetto and/or CMS should explain why they

have determined not to do so.

As I have discussed, Petitioner has a right to challenge Palmetto’s and CMS’s

determination of the effective date of

is participation in Medicare. That right is limited.

Regulations governing enrollment of physicians and non-physician practitioners in
Medicare specify that the effective date of participation shall be the /ater of the following

dates: the date of filing of a Medicare
approved by a Medicare contractor or

enrollment application that was subsequently

the date an enrolled physician or nonphysician

practitioner first began furnishing services at a new practice location. 42 C.F.R.

§ 424.520(d). Any hearing that I mig!

tt eventually hold in this case will thus be limited to

deciding the issue of when Petitioner filed an application “that was subsequently
approved” by a Medicare contractor (Palmetto) or, if applicable, the date when Petitioner
first began furnishing services at a new practice location. Petitioner has no right to

challenge regulatory policy governing

to enrollment. See 42 C.F.R. § 498.3(

reimbursement for items or services provided prior

b)(15).

I caution the parties that I make no findings at this time as to the merits of this case. In
particular, I have not made any finding as to whether any of the applications that
Petitioner made prior to August 10, 2009 constitutes an application “that was
subsequently approved” by Palmetto and/or CMS. See 42 C.F.R. § 424.520(d).

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Romeo Nillas, M.D., ) Date: February 19, 2010

)
Petitioner, )
)

-V.- ) Docket No. C-10-136

) Decision No. CR2069
Centers for Medicare & Medicaid )
Services. )
)

DECISION

I deny the motion of the Centers for Medicare & Medicaid Services (CMS) to dismiss the
hearing request of Petitioner, Romeo T. Nillas, M.D. I grant CMS’s motion for summary
disposition. Consequently, the effective date of Petitioner’s enrollment as a provider in
the Medicare program remains December 30, 2008.

I. Background

HCA Physician Services (HCA) filed a hearing request on behalf of Petitioner, a
physician, and apparently, an employee of HCA in which it challenged the effective date
of Petitioner’s enrollment in the Medicare program. In seeking a hearing HCA alleged
that Petitioner should have been enrolled as of an earlier date than the date when CMS’s
contractor determined that Petitioner was eligible for enrollment, December 30, 2008.
The case was assigned to me for a hearing and a decision.

I directed the parties to brief several issues. Both CMS and HCA filed briefs. CMS
moved to dismiss Petitioner’s hearing request and moved, alternatively, for summary
disposition. HCA opposed CMS’s motion. CMS filed 10 proposed exhibits which it
designated CMS Ex. 1 — CMS Ex. 10. Petitioner filed an exhibit, which it designated as
P. Ex. 1. I receive all of the parties’ proposed exhibits into the record of this case.
IL. Issues, findings of fact and conclusions of law
A. Issues
The issues in this case are whether:

1. Petitioner has a right to a hearing to challenge the effective date of his
enrollment in the Medicare program; and

2. CMS’s contractor and CMS properly determined Petitioner’s effective
date of enrollment to be December 30, 2008.

B. Findings of fact and conclusions of law
I make the following findings of fact and conclusions of law (Findings).
I. I deny CMS’s motion to dismiss.

CMS premises its motion to dismiss on two grounds. First, it asserts that Petitioner has
no right to a hearing because HCA, which filed the hearing request, is not an affected
party and has no right to challenge Petitioner’s effective date of participation.

l agree with CMS that HCA has no standing to file a hearing request, either on its own

behalf, or as the employer of Petitioner. Petitioner is the affected party in this case and
he, and he alone, has a right to a hearing. However, HCA and Petitioner have clarified

that HCA is serving as Petitioner’s representative in this case. I therefore conclude that
Petitioner is the true party in interest.

Second, CMS argues that Petitioner has no right to challenge the effective date of his
participation in Medicare. The gravamen of CMS’s argument is that the regulations
which grant providers hearing rights concerning determinations about their enrollment
eligibility, at 42 C.F.R. Part 424, grant only limited hearing rights to challenge denials of
enrollment applications or determinations to revoke Medicare enrollment. CMS reasons
that a challenge of the effective date of enrollment — as is the case here — is neither a
challenge of a denial nor of a revocation and thus, a party making such a challenge is not
entitled to a hearing.
CMS asserts that the hearing rights it grants to providers to challenge enrollment
determinations effectuate Congress’ intent expressed in the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003, codified at 42 U.S.C. § 1395cce(h)(1)(A).
It asserts that it was never the intent of Congress, nor of CMS, to allow providers to
challenge the effective dates of their enrollment as opposed to determinations to either
deny or revoke Medicare enrollment.

However, there is a regulation which, on its face, explicitly confers appeal rights on all
providers who challenge the effective dates of their enrollment in Medicare. That
regulation is 42 C.F.R. § 498.3(b)(15), which defines an “initial determination” for which
hearing rights are granted as including:

The effective date of a Medicare provider agreement or supplier approval.

This language is explicit and, on its face, it confers hearing rights in precisely the
circumstance that is at issue here, a challenge by Petitioner to the effective date of his
enrollment in the Medicare program.

CMS contends that 42 C.F.R. § 498.3(b)(15) predates the more recently published
regulations governing provider enrollment hearings and is superseded by them. It asserts
that the Secretary never intended the broad language of 42 C.F.R. § 498.3(b)(15) to apply
to provider enrollment hearings and that the regulation’s language — admittedly sweeping
— was not intended to apply in such situations.

The problem with this argument is that it fails to address the very plain language of the
regulation. There is nothing in 42 C.F.R. § 498.3(b)(15) to suggest that it is limited as
CMS urges. Nor is there any language in the Part 424 regulations that suggests that 42
C.F.R. § 498.3(b)(15) is inapplicable. I therefore deny CMS’s motion to dismiss.'

2. I grant CMS’s motion for summary disposition.

This is yet another of a myriad of cases filed by a physician challenging the effective date
of his or her enrollment in the Medicare program. This and many similar hearing requests
appear to have been generated by a Medicare regulation that became effective on January
1, 2009 and which, in most cases, allowed physicians and nonphysician practitioners to
claim reimbursement for items or services only for the 30-day period that predated their
enrollment in the Medicare program. 42 C.F.R. § 424.521. Up until the effective date of

' T do not mean to suggest that CMS could not limit hearings in provider enrollment

cases to hearings over determinations to deny or revoke enrollments. The obvious fix
would be for the Secretary to publish a regulation that specifies that 42 C.F.R.
§ 498.3(b)(15) does not apply to such cases.
this regulation newly enrolled physicians had been eligible to claim reimbursement for
services that were provided beyond the 30-day limit. Petitioner, as is the case with so
many others, is dissatisfied with the limitation imposed by the new regulation.

I have no authority to order CMS to make retroactive reimbursement for claims that were
generated outside of the period permitted by regulation. Nor may I accomplish through
the back door what I may not do directly. Under no circumstance may I order CMS to
establish an earlier effective date of participation than that which is directed by a
controlling regulation. By regulation the effective date of participation of an enrolled
physician must be the /ater of the following dates: the date of filing of a Medicare
enrollment application that was subsequently approved by a Medicare contractor or the
date an enrolled physician or nonphysician practitioner first began furnishing services at a
new practice location. 42 C.F.R. § 424.520(d).

The undisputed facts of this case are as follows. On January 28, 2009, Petitioner filed an
enrollment application with Palmetto GBA (Palmetto), a Medicare contractor operating
on CMS’s behalf. CMS Ex. 1. Palmetto determined that it was unable to process the
application because the person who signed the application on Petitioner’s behalf was not
authorized to do so. Id. On May 4, 2009, Petitioner submitted a second application.
Once again, the person who signed the application was, in Palmetto’s judgment, not
authorized to do so, and thus, Palmetto again informed Petitioner that it was unable to
process the application. CMS Ex. 2. On July 2, 2009, Palmetto evidently became
satisfied with whatever corrections Petitioner had made to the application and it informed
Petitioner that he was enrolled in Medicare effective April 5, 2009. CMS Ex. 3.
Petitioner was dissatisfied with this determination and requested reconsideration. On
October 1, 2009, Palmetto advised Petitioner that his effective date of enrollment was
adjusted to December 30, 2008, 30 days prior to the date Petitioner initially applied for
enrollment. CMS Ex. 5.

The undisputed facts establish that the earliest date when CMS could have approved
Petitioner’s application for enrollment was the date of his initial application, January 28,
2009. That is the filing date of the application that Palmetto “subsequently approved”
and it is the evident basis for Palmetto’s and CMS’s eventual determination to enroll
Petitioner effective December 30, 2008. 42 C.F.R. § 424.520(d).?

2

CMS has not explained to me how Palmetto came up with the December 30, 2008 enrollment
date. I am speculating but it appears that Palmetto may have intended to assure that Petitioner
could claim reimbursement for services provided up to 30 days prior to the date of his
application, consistent with 42 C.F.R. § 424.521. That determination of an effective date that is
30 days prior to the actual application date is not consistent with what the regulations specify
and would appear to be unnecessary inasmuch as Petitioner could claim reimbursement for
(continued...)
Petitioner does not assert that there are any facts that would entitle him to an earlier
enrollment date pursuant to the requirements of 42 C.F.R. § 424.520(d). He does not
contend that he filed an application on any date prior to January 28, 2009.

Petitioner’s sole argument is that he should be permitted to claim reimbursement
retroactively for items or services he provided outside of the 30 day period prior to the
filing date of his application because, according to him, the new reimbursement
regulations that bar retroactive claims beyond the 30 day period were not in effect on the
date that he applied to enroll. According to Petitioner: “Medicare contractors were not
notified to apply the 30-day minimum until receipt of CMS Change Request 6310 that
was released to contractors on March 13, 2009 and re-released on April 15, 2009,
indicating an implementation date of April 1, 2009.”

This is an argument that I have no authority to address. As I have stated, I have no
authority to order CMS to make payment for claims that were provided outside of the 30-
day retroactive period provided by regulation. Nor do I have authority to consider a
challenge to the way in which this Department implements regulations.’

/s/
Steven T. Kessel
Administrative Law Judge

2(.. continued)

services provided as early as December 30, 2008 even with a January 28, 2009 enrollment date.
However, I am not adjusting the effective date of enrollment based on Palmetto’s apparent
misreading of the regulation because neither Petitioner nor CMS has asserted that Palmetto’s
action in this respect is incorrect.

> 42 C.F.R. §§ 424.520 and 424.521 were published by the Secretary on November 19,

2008 and became effective on January 1, 2009. 73 Fed. Reg. 69726 (Nov. 19, 2008).
Thus, the regulation governing retroactive payment for claims generated prior to
enrollment was in effect when Petitioner filed his application for enrollment and would
govern Petitioner’s claims even if contractors had not received implementation guidance
by that date.


The Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the case of: )
Social Security Administration, Date: February 19, 2010
)
-V.- )
)
Bonnie Gale Porter, ) Docket No. C-08-635
) Decision No. CR2068
Respondent. )
)
DECISION

I sustain the determination of the Social Security Administration Inspector General (SSA
I.G.) to impose civil money penalties of $22,000 against Respondent Bonnie Gale Porter.
I find that Respondent made several false statements or misrepresentations concerning
her alleged earnings in order to augment her earnings record and to qualify for Social
Security disability benefits. The number of false statements made by Respondent, her
culpability for them, and the absence of mitigating evidence all amply support the civil
money penalty amount.

I. Background

In this case the SSA I.G. alleges that Respondent contravened section 1129 of the Social
Security Act (Act). In relevant part the section provides for civil money penalties of up
to $5000 for each material statement that an individual makes for use in determining
initial entitlement or continuing right to Social Security benefits that the individual knows
or should know is either false or misleading or that the individual makes with knowing
disregard for its truth. Act, section 1129(a)(1)(A), (B). The SSA L.G. alleges that, in
applying for Social Security disability benefits in 2008, Respondent made false
statements concerning her work history and earnings in order to augment her earnings
record and to make her eligible to receive benefits.
Respondent requested a hearing and the case was assigned to me for a hearing and a
decision. On November 2, 2009, at Respondent’s request, I held a hearing by telephone.
At the hearing I received into evidence exhibits which were identified as OIG Ex. 1 —
OIG Ex. 26 and R. Ex. 1 —R. Ex. 19.

II. Issues, findings of fact and conclusions of law
A. Issues
The issues in this case are whether:
1. Respondent made statements in support of her application for Social
Security disability benefits that she knew or should have known were
materially false; and
2. Civil money penalties of $22,000 are reasonable.
B. Findings of fact and conclusions of law
I make the following findings of fact and conclusions of law (Findings).
1. Respondent made statements in support of her application for Social
Security disability benefits that she knew or should have known were
materially false.
On January 16, 2008, Respondent filed an application for Social Security disability
benefits. OIG Ex. 1. In her application she asserted that wages should be posted to her
earnings record for certain employers for specific periods of time and in specific

amounts. Jd. at 2-3. Among other things, Respondent asserted that:

e In 1989 she worked for Highland Framers, Inc. and that her Social Security wages
were $2497.50.

e In 1990 she also worked for Highland Framers, and that her Social Security
wages were $484.00.

e In 1990 she worked for Robin Christensen Construction and that her Social
Security wages were $5793.90.

e In 1990 she worked for S.W. Construction, Inc. and that her Social Security
wages were $3456.00.
e In 1991 she worked for Connolly Construction Company and that her Social
Security wages were $6996.75.

e In 1992 she worked for D. and S. Construction Co. and that her Social Security
wages were $3924.25.'

In her application Respondent acknowledged that she knew that anyone making a false
statement or representation of a criminal fact was subject to legal penalties and she
affirmed that all of the information that she gave in connection with her benefits claim
was true. Id. at 3.

As support for her contentions concerning her alleged past work activity Respondent
offered the Social Security Administration six W-2 forms showing work done by a “B.G.
Porter” at Highland Framers, Robin Christensen Construction, S.W. Construction, Inc.,
Connolly Construction Company, and D. and S. Construction Co. OIG Ex. 3, at 1-6.
The W-2 forms showed that “B.G. Porter” had worked for these employers during the
years when Respondent claimed to have worked for them and showed that “B.G. Porter”
received wages in the amounts claimed by Respondent as her wages from these
employers.’

In fact, and as is established by the preponderance of the evidence in this case,
Respondent’s assertions about her employment history with these companies were
untrue. The preponderance of the evidence proves that Respondent was not the “B.G.
Porter” whose name appears on the W-2 forms. Rather, “B.G. Porter” was Respondent’s
husband, Thomas Porter, who had worked for these companies under the assumed name
of “B.G. Porter” during the time periods at issue. He had adopted the pseudonym of
“B.G. Porter” and reported his earnings using his wife’s (Respondent’s) Social Security
number. OIG Ex. 17. Years after the fact, Respondent has now falsely claimed the
wages as her own in order to establish sufficient earnings and quarters of coverage to
make her eligible to receive Social Security disability benefits.

' Respondent also contended that she had worked for other employers between 1989 and
1993 (Homeclub, Inc., Moreno Valley Animal Friends, and Animal Control Specialists).
The SSA LG. initially asserted that Respondent made false statements about her work for
these employers. However, Respondent produced evidence establishing her work for
these employers and the SSA LG. has withdrawn its allegations concerning her work for
them.

> Respondent also offered W-2 forms for Animal Control Specialists, Moreno Valley
Animal Friends, and Homeclub, Inc. Unlike the other six W-2s, which all show earnings
attributed to “B.G. Porter”, The Animal Control Specialists and Moreno Valley Animal
Friends W-2s attribute wages to “Gale Porter.” The Homeclub, Inc. W-2 shows earnings
attributed to “Bonnie G. Porter.” Jd.
Thomas Porter had been receiving Social Security disability benefits since 1979. Asa
general rule, working while receiving such benefits renders the beneficiary ineligible to
receive them. Mr. Porter knew that and, in a scheme to defraud the Social Security
Administration, he returned to work in 1984 under the pseudonym of “B.G. Porter.” OIG
Ex. 17. In order to further his fraud Thomas Porter used his wife’s (Respondent’s) Social
Security number on his tax withholding forms. /d. at 7-8. After an investigation Mr.
Porter was arrested, was charged with defrauding the Social Security Administration, and
was ultimately convicted.* OIG Ex. 21. In 2002, the Social Security Administration
removed from Respondent’s Social Security earnings record the wages and earnings that
Mr. Porter had fraudulently attributed to her Social Security number. OIG Ex. 4; OIG
Ex. 5.

There exists substantial and persuasive evidence that corroborates that the wages claimed
by Respondent in her 2008 disability benefits application were earned by her husband
and not by her. Thomas Porter admitted to investigators for the Social Security
Administration that he had worked under a pseudonym and had his earnings credited to
his wife’s account in order to conceal his work activity. OIG Ex. 17, at 8; OIG Ex. 18, at
2. Furthermore, the use of the pseudonym “B.G. Porter” on the W-2 forms later claimed
by Respondent as reflecting her own work is inconsistent with the way in which
Respondent reported her name in forms issued by companies for which she actually did
work (“Gale Porter” or “Bonnie G. Porter’) and strongly suggests that someone other
than Respondent provided the information used to generate the W-2 forms that are at
issue here.

Moreover, Respondent made no protest of the Social Security Administration’s
determination in 2002 to remove “‘B.G. Porter’s” wages from her earnings record. It was
only in 2008, when it was in her self interest to claim these wages as her own, that
Respondent asserted that she was the “B.G. Porter” to whom the various employers had

paid wages for services.

Respondent now contends that she, in fact, worked for the various employers who paid
wages to “B.G. Porter.” She has not produced any corroborating evidence in the form of
pay stubs, work records, or other documentation. Rather, her entire case is based on her
assertion that she often worked in the construction industry (all of the firms whose wages
are at issue are construction companies) as part of crews of workers. According to
Respondent, all of the firms followed a policy of “one crew one check.” The idea,
according to her, was that only one member of a group of workers would fill out

* The fraud committed by Mr. Porter was substantial. As a result of working under his
wife’s identity, he fraudulently obtained over $173,559 in benefits for himself,
Respondent, and his family. OIG Ex. 17, at 3. To this day there remains an outstanding
overpayment owed by him to the Social Security Administration of more than $86,000.
OIG Ex. 26.
employment forms and be registered as an employee of a construction firm. That person
would then be paid for the services of all of the members of a crew and would distribute
pay to each member of the crew based on that individual’s work. Tr. at 19-20. Thus,
according to Respondent, “B.G. Porter” is a pseudonym for more than one individual, but

she was always part of the crew that received “B.G. Porter’s” wages.

Respondent has not provided persuasive evidence supporting her assertion and I find it to
be untrue. She called no representative from any of the companies whose wages are at
issue as a supporting witness and she introduced no documents that supported her claim.

Respondent produced a witness, Mr. Thomas Grogan, who testified that he sometimes
worked alongside Respondent as part of a construction crew. However, Mr. Grogan did
not corroborate Respondent’s assertion that “B.G. Porter” was a pseudonym for crews on
which Respondent worked. He provided no evidence to corroborate Respondent’s
assertion that the six W-2s in question documented wages earned by her for various
named employers during specific periods of time. Furthermore, Mr. Grogan initially
denied any knowledge of the “one crew one check” practice asserted by Respondent. He
later stated that it happened once in a while, but it was not “normal practice.” He
testified that when he worked on a construction crew he was paid by check directly from
his employer. Tr. at 30-31.

I conclude that Respondent failed to establish any affirmative defense proving that she
did not make deliberately and materially false and misleading statements to the Social
Security Administration. I find that to be so even if I accept her contention that there
exists or existed a “one crew one check” practice in the construction industry and even if
l accept her claim that she performed work as part of a “B.G. Porter” crew.

When Respondent applied for disability benefits she asserted that she had received all of
the wages paid to “B.G. Porter” from various construction firms and she offered the W-2
forms for “B.G. Porter” as proof of that assertion. If, assuming for argument’s sake,
Respondent actually worked as part of a “B.G. Porter” crew, she would have earned only
a fraction of the wages she subsequently claimed to be her own earnings. I note that
Respondent’s witness Mr. Grogan testified that, typically, he and Respondent would
work together as part of a crew of four or five individuals. Thus, even if I accept
Respondent’s assertions on their face, they confirm that she willfully and fraudulently
overstated her earnings in order to qualify for Social Security disability benefits.

2. Civil money penalties of $22,000 are reasonable.

The Act allows for a civil money penalty of up to $5000 for each materially and willfully
false statement uttered by an individual in connection with a benefits claim. Act, section
1129(a)(1). The penalties totaling $22,000 that the SSA I.G. seeks to impose against
Respondent are well below the maximum that the law would permit in this case.
Respondent committed multiple frauds against the Social Security Administration. Her
raudulent assertions about the six W-2 forms made out to “B.G. Porter” by themselves
support, possibly, civil money penalties totaling $30,000.

I find penalties of $22,000 to be reasonable. The fraud that Respondent committed was
willful and it was serious and the total penalty amount is commensurate with that fraud.
Respondent has offered no evidence that serves to mitigate the penalties. She has not
shown that her false statements were anything other than part of a deliberate and
raudulent scheme. She has demonstrated no recognition of, or remorse for, the degree of
her culpability as is evidence by her continued contentions that I find, frankly, to be
preposterous. She has not proved that the penalties demanded by the SSA I.G. would
work an unreasonable financial hardship on her. Indeed, the SSA I.G. has offered
evidence showing that Respondent and her husband have substantial assets. OIG Ex. 16,
at 16.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Ultra-X Imaging, ) Date: February 18, 2010

)
Petitioner, )
)

-V.- ) Docket No. C-09-360

) Decision No. CR2066
The Centers for Medicare & Medicaid)
Services. )
)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) that
Petitioner, Ultra-X Imaging, was not in compliance with the Medicare program’s
conditions for coverage for portable x-ray suppliers.

I. Applicable Law

The Social Security Act (Act) sets forth requirements for providers and suppliers
participating in the Medicare program, and authorizes the Secretary of Health and Human
Services to promulgate regulations implementing those statutory provisions. Act § 1102.
Medicare reimbursement for portable x-ray supplier services is authorized under section
1861(s)(3) of the Act. The Secretary’s regulations governing portable x-ray suppliers,
and the conditions for coverage for such services, are found at 42 C.F.R. Part 486,
Subpart C. To participate in the Medicare program, a prospective supplier must be in
compliance with the applicable conditions. 42 C.F.R. § 488.3. The Secretary may refuse
to approve a prospective provider or supplier if it is unable to give satisfactory assurance
of compliance with the requirements of Title XVIII of the Act. 42 C.F.R. § 489.12(a)(4);
see also 42 C.F.R. §§ 489.1(d), 489.13.
The Secretary contracts with state agencies to conduct surveys to determine whether
providers or suppliers are in compliance with Medicare conditions for coverage. Act §
1864(a); 42 C.F.R. § 488.20. State survey agencies are required to certify that a provider
or supplier is not in compliance with the conditions for coverage “where the deficiencies
are of such a character as to substantially limit the provider’s or supplier’s capacity to
furnish adequate care or which adversely affect the health and safety of patients.” 42
C.F.R. § 488.24(b). A supplier found deficient with one or more standards under the
conditions for coverage may participate in Medicare only if it has submitted an
acceptable plan of correction within a reasonable period of time and its deficiencies,
individually or in combination, do not jeopardize patient health or safety or seriously
limit its capacity to render adequate care. 42 C.F.R. § 488.28. However, when a supplier
is found out of compliance with a condition-level requirement, as opposed to a standard,
the regulations do not afford such an opportunity. 42 C.F.R. § 488.28(c).

The critical date for establishing compliance is the survey date, not a subsequent date of
alleged compliance. CMS relies on the findings of the State survey agency in making its
determinations, and the survey agency’s findings necessarily relate to the status of a
provider or supplier as of the date of the survey. As the Departmental Appeals Board has
noted, to rely “on a later date after the survey as the dispositive date for determining
compliance . . . could cause a never-ending cycle of resurveys based on unsubstantiated
claims of compliance” on a later date. Carmel Convalescent Hospital, DAB No. 1584
(1996).

If CMS determines that a prospective supplier of portable x-ray services is not in
compliance with conditions for coverage, the prospective supplier may request a hearing
before an Administrative Law Judge. 42 C.F.R. §§ 488.24(c); 498.2; 498.3(b)(5). The
earing before an administrative law judge is a de novo proceeding. Anesthesiologists
Affiliated, et al, DAB CR65 (1990), aff'd, 941 F.2d 678 (8th Cir. 1991). CMS must
establish a prima facie case by introducing enough evidence to establish a fact or raise a
presumption unless disproved or rebutted. See Hillman Rehabilitation Center, DAB No.
1611, at 8 (1997), aff'd Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Services,
No. 98-3789 (GEB) (D.N.J. May 13, 1999). To prevail, Petitioner must overcome
CMS’s showing by a preponderance of the evidence. Evergreene Nursing Care Center,
DAB No. 2069, at 7-8 (2007); Hillman Rehabilitation Center, DAB No. 1611.

IL. Background

Petitioner is a portable x-ray service located in Belleville, Michigan. Following an initial
certification survey conducted by the Michigan Department of Community Health (State
agency) on September 4, 2008, Petitioner was found to be out of compliance with three
conditions for coverage: 42 C.F.R. § 486.102, supervision by a qualified physician; 42
C.F.R. § 486.104, qualified technologist; and 42 C.F.R. § 486.108, safety standards. On
November 12, 2008, CMS notified Petitioner that it did not meet the requirements for
participation in the Medicare program because of its noncompliance with those
conditions for coverage. On December 3, 2008, Petitioner requested reconsideration of
the CMS determination. On January 30, 2009, CMS affirmed its original determination
denying Petitioner certification as a supplier of portable x-ray services.

On March 18, 2009, Petitioner timely requested a hearing. Specifically, Petitioner asserts
that CMS’s determinations were based on faulty or insufficient information. Hearing
request at 1.

The case was assigned to me for a hearing and decision. The parties submitted Reports
of Readiness for Hearing. On July 8, 2009, I held a pre-hearing telephone conference and
explained to the parties that the case could be decided based on an in-person hearing or
written submissions. Both parties chose to have the case decided based on written
submissions and I set forth a briefing schedule that gave Petitioner another opportunity to
request an in-person hearing after reviewing CMS’s brief. July 10, 2009 Order. CMS
submitted a brief, and Petitioner submitted a letter in lieu of a brief stating that it had
submitted a new enrollment application to CMS and that it would base its case on the
information that it had already provided.' CMS submitted 12 exhibits (CMS Exs. 1-12).
Petitioner submitted eight exhibits: four attachments and four letters. I have marked the
four attachments as Petitioner’s Exhibits 1-4 (P. Exs. 1-4), and the four letters as P. Exs.
5-8, and have attached an exhibit list of Petitioner’s exhibits to this decision.

Ill. Issue

Whether CMS had a basis to deny Petitioner certification in the Medicare program as a
portable x-ray supplier.

IV. Discussion

A, Petitioner was not supervised by a qualified physician at the time of the
survey, as required by 42 C.F.R. § 486.102.

The regulations require, as a condition for coverage, that portable x-ray services be
provided under the supervision of a qualified physician. 42 C.F.R. § 486.102. The
physician supervisor must be a licensed doctor of medicine or a licensed doctor of
osteopathy qualified by advanced training and experience in the use of x-rays for
diagnostic purposes. 42 C.F.R. § 486.102(a). Additionally, the supervising physician
must certify annually that he or she periodically checks the procedural manuals and

' As I explained during the July 8, 2009 pre-hearing conference, I cannot review a
decision by the State survey agency as to when to conduct an initial survey of a
prospective provider or supplier. 42 C.F.R. § 498.3(d)(15).
observes the operators’ performance, that he or she has verified that equipment and
personnel meet applicable Federal, State, and local licensure and registration
requirements, and that safe operating procedures are used. 42 C.F.R. § 486.102(b).

In this case, Petitioner was not able to provide Surveyor Rick Brummette with clear
evidence that it had any qualified physician in place and performing the required
supervision activities. Petitioner’s part-owner and employee, William Hughes, informed
Surveyor Brummette that Petitioner had ended its relationship with its previous
supervising physician, Dr. Herbert Weisenthal, around January 2008, and that it was in
the process of bringing in a new supervising physician. CMS Ex. 9, at 3 (Brummette
Decl. § 14). While Mr. Hughes mentioned two names, Dr. Goldsmith and Dr. Collado, to
Surveyor Brummette, he was unable to provide any documentation that either of the
individuals had a formal relationship with Petitioner or had performed any supervisory
work. CMS Ex. 9, at 3-4 (Brummette Decl. J 14). Mr. Hughes did not mention Dr.
Sadar Zamen during the interview. CMS Ex. 9, at 4 (Brummette Decl. § 16). Mr.
Hughes was also unable to provide any documentation showing that either of the
physicians were qualified by advanced training and experienced as the regulations
require.

Although Petitioner contends that it showed Surveyor Brummette the credentials of its
new physician, Sadar Zamen, M.D., it has not presented any evidence here that Dr.
Zamen was employed as its supervising physician at the time of the survey. Hearing
Request at 1. The only document that Petitioner offers to show that it employs Dr.
Zamen is a statement signed on September 24, 2008, indicating that Dr. Zamen is
performing the duties of a supervising physician. P. Ex. 1D; CMS Ex. 8, at 11. This
statement, signed 20 days after the survey, does not show that Dr. Zamen was a
supervising physician at the time of the survey. Moreover, although Petitioner has
provided information showing Dr. Weisenthal’s credentials, it has not submitted any
evidence to rebut the statement of its own employee that its relationship with the doctor
ended around January 2008.

Therefore, based on the evidence that the parties have submitted, it appears that at the
time of the survey Petitioner was not in compliance with this condition for coverage.

B. Petitioner did not employ qualified technicians, have an orientation program
that met regulatory requirements, or maintain records showing that employees
received adequate health supervision at the time of the survey, as required by 42
CF.R. § 486.104.

A provider of portable x-ray services must employ qualified technicians; have an
orientation program for personnel based on a procedural manual that includes, among
other things, instructions on precautions that should be taken to protect an individual
supporting a patient from unnecessary exposure to radiation; and maintain employee
records that include evidence that each employee is qualified for his or her position by
means of training and experience and that each employee receives adequate health
supervision. 42 C.F.R. § 486.104.

Technician qualifications
Federal regulations require that technicians complete a program of formal training not

less than 24 months in duration from an approved school or have a bachelor’s or
associate degree in radiologic technology. 42 C.F.R. § 486.104(a)(1).

Mr. Hughes informed Surveyor Brummette that there were three technicians on staff at
the facility. However, Mr. Hughes could not provide any documentation to show that
any of these three individuals met the training requirements. CMS Ex. 9, at 4-5
(Brummette Decl. fff 18-19). He was unable to provide documentary evidence showing
that Melvin Turner had attended an x-ray technician training program that was at least 24
months in duration. He was unable to produce any evidence of his own qualifications or
his employee record. While Mr. Hughes was unable to provide the name of the third
technician (referred to as Technician 2 in Surveyor Brummette’s declaration) or any
documentation showing his qualifications, Mr. Hughes told the surveyor that Petitioner
was still in the process of hiring Technician 2, so the lack of documentation regarding
Technician 2 is not surprising and does not indicate that Petitioner was out of compliance
with the standard. CMS Ex. 9, at 4-5 (Brummette Decl. § 19).

Petitioner has submitted several documents concerning its two technicians’ qualifications.
P. Ex. 2A-B; CMS Ex. 8, at 14-17, 19-26. Mr. Turner appears to meet the regulatory
requirements. However, it is unclear whether Mr. Hughes meets the requirements.
Petitioner has produced several letters suggesting that Mr. Hughes worked as a radiology
technician from approximately 1994-1998 and 2006-2008. P. Ex. 2D-G; CMS Ex. 8, at
19-22. Petitioner has also submitted a certificate and related documentation stating that
in June 1992, Mr. Hughes completed the “necessary clock hours of technical instruction
in X-ray Technician.” P. Ex. 2H-J; CMS Ex. 8, at 23-26. But neither the certificate nor
the attached documentation explains how many hours of instruction were necessary for
completion. From the other documents, it appears that Mr. Hughes took two courses
during one semester. P. Ex. 2I-J; CMS Ex. 8, at 24-26. Although Petitioner contends
that CMS accepts experience on the job as valid credentialing, the regulations are clear
that on the job credentialing applies only to technicians who completed their training
prior to 1966. Petitioner’s Report of Readiness at 2; 42 C.F.R. § 486.104(a)(2)-(3). The
course work submitted here, even with Mr. Hughes’ experience, is not sufficient to meet
the regulatory requirements.”

> Mr. Brummette states in his declaration that Mr. Hughes had been determined

permanently ineligible for registry by the American Registry of Radiologic Technologists

by reason of Misrepresentation. CMS Ex. 9, at 5 (Brummette Decl. § 21); CMS Ex. 4.
(continued . . .)
Orientation program
A supplier of portable X-ray services must have an orientation program for personnel,

based on a procedural manual that is available to all members of the staff, incorporates
relevant portions of professionally recognized documents, and includes instruction in 12
specified areas. These areas include the hazards of excessive exposure to radiation and
precautions to be followed to protect an individual supporting a patient from unnecessary
exposure to radiation. 42 C.F.R. § 486.104(b).

In his declaration, Surveyor Brummette states that at the time of the survey, Petitioner
was unable to provide him with any evidence that it had an orientation program or that
any of the employees has participated in an orientation program. Mr. Hughes told
Surveyor Brummette that Petitioner’s orientation program was an “on the job kind of
thing.” CMS Ex. 9, at 5 (Brummette Decl. §§ 22-23). Surveyor Brummette noted that he
could not find any documentary evidence that Petitioner had trained its employees
regarding precautions to be followed to protect an individual supporting a patient from
unnecessary exposure to radiation as required by 42 C.F.R. § 486.104(b)(2). CMS Ex. 9,
at 5 (Brummette Decl. ¥ 23).

Petitioner has produced two signed documents listing the regulatory requirements for the
manual and stating that it has an orientation program for technical personnel based on
that manual and that the employees have taken the orientation. P. Ex. 3A-B; CMS Ex. 8,
at 27-29. However, these documents are not persuasive evidence of Petitioner’s
orientation program. Even if I found that these documents were persuasive to show an
orientation program existed, they were signed on September 24, 2008, twenty days after
the survey occurred. Petitioner has not produced its procedural manual or any other
existing policies or instructions regarding the precautions that should be taken to protect
an individual supporting a patient from unnecessary exposure to radiation.

Employee records

Employee records must be maintained and include evidence that each employee is
qualified for his or her position by means of training and experience and that employees
receive adequate health supervision. 42 C.F.R. § 486.104(c).

As noted above, at the time of the survey, Petitioner could not produce any records to
show that its employees were qualified. Even though it has now produced evidence that
shows that Dr. Weisenthal, Dr. Zamen and Mr. Turner are qualified, it did not maintain
its records so that they could be reviewed at the time of the survey. Additionally, even
though it provided these employees’ qualifications, Petitioner still has not offered

(... continued)
While registry with this organization is not a requirement, Petitioner chose not to respond
to any of CMS’s exhibits, including CMS Exhibit 4.

evidence showing that Dr. Zamen was employed at the time of the survey nor has it
offered any evidence to rebut Mr. Hughes’ statement that it ended its relationship with
Dr. Weisenthal in January 2008. Again, Petitioner has not provided documents or
records showing that Mr. Hughes meets the regulatory training requirements.

Surveyor Brummette stated that he could find no documentation that Petitioner had
provided any health supervision for its employees. 42 C.F.R. § 486.104(c); CMS Ex. 9,
at 5 (Brummette Decl. J 24). Petitioner has not produced any evidence to show that it
provided such supervision.

Therefore, based on the evidence before me, I conclude that Petitioner was out of
compliance with this condition for coverage because Petitioner has not shown: that its
technician, Mr. Hughes, met the federal training requirements; that it had an orientation
program at the time of the survey that included instruction on precautions to protect an
individual supporting a patient from unnecessary exposure to radiation; or that it
maintained records showing its employees’ qualifications and health supervision for
them.

C. The evidence establishes that Petitioner was not in compliance with safety
standards at the time of the survey, as required by 42 C.F.R. § 486.108.

Providers of portable x-ray services must conduct x-ray examinations through the use of
equipment that is free of unnecessary hazards for patients, personnel, or other persons in
the immediate environment. The operating procedures must provide the minimum
radiation exposure to patients, personnel, or other persons in the immediate environment.
42 CFR. § 486.108.

Petitioner has submitted evidence acknowledging that it was not in compliance with
safety standards at the time of the survey. P. Ex. 4A-D; CMS Ex. 8, at 3-5. Following a
State radiation safety examination conducted on September 10, 2008, by Cathy Clark,
Health Physicist for the State agency, Surveyor Brummette found that Petitioner was out
of compliance with the safety standards for tube housing and devices to restrict the useful
beam, personnel monitoring, and the exposure control switch. CMS Ex. 9, at 6-7
(Brummette Decl. ff] 26-29); CMS Ex. 1, at 8-11.

Tube housing and devices to restrict the useful beam

Regulations require that the x-ray equipment’s tube housing is of diagnostic type and that
diaphragms, cones, or adjustable collimators capable of restricting the useful beam to the
area of clinical interest are used and provide the same degree of protection as is required
of the housing. 42 C.F.R. § 486.108(a).

Surveyor Clark explained in her declaration that during an inspection, she observes x-ray
equipment for compliance with safety standards regarding the tube housing, devices to
restrict the useful beam, and the exposure control switch. The purpose of the standards is
to ensure that the x-ray beam is restricted to the clinical area of interest and that the
equipment is operated in a way to prevent unnecessary radiation exposure to the operator,
patient, or others. CMS Ex. 11, at 2-3 (Clark Decl. 10).

During her inspection, Surveyor Clark tested and observed two machines. The collimator
field size indicators on both machines were not accurate within two percent of the source-
to-image distance. CMS Ex. 5. In x-ray equipment, a collimator narrows and filters the
beam of particles or waves. CMS Ex. 11, at 3 (Clark Decl. § 12). One of the machines’
light fields was shifted to the side two inches on one side and one inch on the other. The
dials on both machines, which are used to set the x-ray field, were inaccurate outside the
two percent range meaning that the useful radiation beam was not appropriately
restricted.> CMS Ex. 11, at 3 (Clark Decl. 4 13). Inaccurate collimation can lead to
inaccurate clinical images and scattered radiation, which could result in potential harm to
the patient, operator, and others. CMS Ex. 11, at 3 (Clark Decl. 4 14).

Petitioner has not argued that it was in compliance with this requirement at the time of
the survey or the examination, but has offered evidence that it subsequently corrected the
violation. P. Ex. 4B-D; CMS Ex. 8, at 3-5.

Personnel monitoring
Suppliers of portable x-ray services must provide each x-ray operator with a device

which can be worn to monitor radiation exposure. The device is evaluated for radiation
exposure to the operator at least monthly and the supplier maintains appropriate records
of the device’s radiation exposure measurements for each individual. 42 C.F.R.

§ 486.108(j).

Dosimeters measure an individual’s exposure to a hazardous environment, particularly
when the hazard is cumulative over a long period of time. Dosimeters have a specific
wear period and must be rotated in and out of use so that they can be measured for
radiation exposure. CMS Ex. 11, at 4 (Clark Decl. 4 16).

Petitioner was not able to provide Surveyor Clark with all the personnel dosimetry
reports. It could not provide any evidence that dosimeters had been issued for the period
of January 15 through April 14, 2008. CMS Ex. 11, at 4 (Clark Decl. § 17). The
dosimeters that were in use at the time of the September 10 examination should have

> Two percent is the standard used by the State agency. Mich. Comp. Laws § 333.13521;
Mich. Admin. Code R. 325.5351-325.5353. It is not listed at 42 C.F.R. § 486.108(a) and
I do not consider it dispositive in determining Petitioner’s compliance with this standard.
been returned for evaluation on July 15, 2008, as their assigned wear period had ended.
Petitioner has other dosimeters available for the wear period of July 15 through October
14, 2008, but they had not been issued to employees. CMS Ex. 11, at 4 (Clark Decl.
18).

Again, Petitioner has not argued that it was in compliance with this requirement at the
time of the survey or the examination, but has offered evidence that it subsequently
corrected the violation. P. Ex. 4B-D; CMS Ex. 8, at 3-5.

Exposure control switch
Regulations require that the exposure control switch be of the dead-man type and

arranged so that the operator can stand at least six feet from the patient and well away
from the useful beam. 42 C.F.R. § 486.108(e)

Although Surveyor Clark observed one of Petitioner’s technicians, Mr. Hughes, stand
only three feet from the primary x-ray beam, it is not clear that Petitioner was out of
compliance with this standard because the machine had a six-foot cord. CMS Ex. 11, at 4
(Clark Decl. § 19).

Because it has not asserted that it was in compliance and based on the evidence before
me, I conclude that Petitioner was not in compliance with the condition for coverage,
Safety standards, at the time of the survey.

Vv. Conclusion

Based on my review of all the evidence in this case, I sustain the determination by CMS
that Petitioner was not in compliance with three conditions for coverage related to health
and safety as specified by the Secretary. Act § 1861(s)(3); 42 C.F.R. §§ 102, 104, 108.
Petitioner’s deficiencies, individually and in combination, substantially limited its ability
to furnish adequate care and could have adversely affected the health and safety of
patients at the time of the survey. 42 C.F.R. § 488.24(b). The Secretary may refuse to
enter into an agreement with a prospective provider or supplier if it is unable to give
satisfactory assurance of compliance with the requirements of Title XVIII of the Act. 42
C.F.R. § 489.12(a). Here, Petitioner has not given satisfactory assurance of its
compliance at the time of the survey. Thus, CMS was authorized to deny Petitioner’s
certification as a supplier of portable x-ray services.

/s/
Alfonso J. Montafio
Administrative Law Judge