Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Brett Sachse, M.D.
(NPI No. 1518975317),

Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-46
Decision No. CR2524
Date: April 6, 2012
DECISION

The effective date of Medicare enrollment of Petitioner, Brett Sachse, M.D., is January 3,
2011.

I. Background

The Centers for Medicare and Medicaid Services (CMS) notified Petitioner’s practice
group’ by letter dated April 11, 2011, that the Medicare enrollment application of
Petitioner reassigning benefits to the group had been approved effective December 4,
2010.7 CMS Exhibit (CMS Ex.) | at 1-3.

' Daniel G. Turgeon, M.D., F.A.C.S., P.L.L.C., Reston Surgical Associates.

> The letter was in error as explained by the contractor letter dated November 14, 2011.
CMS Ex. 2. The contractor determination was that the effective date of Petitioner’s
enrollment was January 3, 2011, the date his enrollment application was received by the
contractor. However, as explained by the November 14 letter, Petitioner was authorized
to file claims for services retroactive to December 4, 2010. CMS Ex. 2.
On May 30, 2011, Petitioner requested reconsideration of the initial decision and
requested that his effective enrollment date be changed to August 1, 2010, the date he
first began treating Medicare patients. CMS Ex. | at 11. On August 28, 2011, a
contractor hearing officer issued a reconsideration decision denying Petitioner’s request
for an earlier effective date of enrollment.? CMS Ex. | at 4-9.

On October 17, 2011, Petitioner requested a hearing before an Administrative Law Judge
(ALJ). This case was assigned to me for hearing and decision. I issued an
Acknowledgment and Prehearing Order on October 24, 2011. On November 18, 2011,
CMS filed a Motion for Summary Judgment (CMS Br.) with CMS Exs. | through 3. On
December 8, 2011, Petitioner filed a letter in response to CMS’s Motion for Summary
Judgment (P. Response) with one exhibit (P. Ex. A). On January 25, 2012, CMS notified
me that a reply brief was waived. The parties have filed no objections to CMS Exs. 1
through 3 and P. Ex. A, and they are admitted.

II. Discussion
A. Applicable Law

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

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

sth, : 0 :

In the decision paragraph, the contract hearing officer erroneously refers to a different
provider and group name. CMS Ex. | at 9. Although there is no apparent prejudice due
to the error, my de novo review remedies any possible prejudice.

* 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

ospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities,

ome 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.

Qualified physician services are covered by Medicare Part B, subject to some limitations,
for those physicians enrolled in Medicare. Act §§ 1832(a) (42 U.S.C. § 1395k(a));
1861(s)(1) (42 U.S.C. § 1395x(s)(1)); 42 C.F.R. § 410.20. “Physician’s services” are
professional services performed by physicians, including surgery, consultation, and
home, office, and institutional calls (with certain exceptions). Act § 1861(q) (42 U.S.C.
§ 1395x(q)); 42 C.F.R. § 410.20.

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. The effective date of a physician’s enrollment in Medicare
is governed by regulations at 42 C.F.R. § 424.520(d). The effective date of enrollment
for a physician 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. /d. The date of filing of the
enrollment application is the date when the complete enrollment application and
supporting documentation is received by the designated Medicare contractor. 42 C.F.R.

§ 424.510(d)(1); 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008). An enrolled physician
may bill Medicare for services provided Medicare eligible beneficiaries up to 30 days
prior to the effective date of enrollment, if circumstances precluded enrollment before the
services were provided. Retroactive 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 C.F.R. § 424.521.

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

Whether CMS properly determined the effective date of Petitioner’s
Medicare enrollment and billing privileges.

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

My conclusions of law are set forth in bold text followed by my findings of fact and
analysis.
1. Summary judgment is appropriate.

CMS has requested summary judgment. 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.
Part 498. 42 C.F.R. § 424.545(a)(1). The regulations do not establish a summary
judgment procedure or recognize such a procedure. However, the Departmental Appeals
Board (the Board) has long accepted that summary judgment is an acceptable procedural
device in cases adjudicated pursuant to 42 C.F.R. Part 498. See, e.g., Ill. 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 October 24, 2011. 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 Fed. R. Civ. Pro. 56 will be applied.

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). See
also 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 parties’ evidence
would be sufficient to meet that party’s evidentiary burden. Dumas Nursing and Rehab.,

L.P., DAB No. 2347, at 5 (2010). The Secretary has not provided for the allocation of
the burden of persuasion or the quantum of evidence in 42 C.F.R. Part 498. However, the
Board has provided some persuasive analysis regarding the allocation of the burden of
persuasion in cases subject to 42 C.F.R. Part 498. Batavia Nursing and Convalescent
Ctr., DAB No. 1904 (2004), aff'd, Batavia Nursing & Convalescent Ctr. v. Thompson,
129 Fed. App'x 181 (6th Cir. 2005).

The material facts in this case, as discussed hereafter, are not disputed and there is no
genuine dispute as to any material fact that requires a trial. 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. Petitioner’s effective date of Medicare enrollment was January 3,
2011, the date on which he submitted a complete enrollment
application that could be processed to approval pursuant to 42 C.F.R.
§ 424.520(d).

3. Petitioner was authorized to bill Medicare for services provided to
Medicare eligible beneficiaries up to 30 days prior to his effective date
of enrollment.

The facts are not disputed and all inferences are drawn in favor of Petitioner. Petitioner
is a general surgeon and is employed by Reston Surgical Associates, Daniel G. Turgeon,
M.D., F.A.C.S., P.L.L.C. Hearing Request (HR). Petitioner began seeing patients on
August 1, 2010. CMS Ex. 1 at 14. Petitioner subsequently submitted a Medicare
enrollment application to the Medicare contractor, Highmark Medicare Services
(“Highmark”). CMS Ex. | at 14-58. Petitioner does not dispute that Highmark received
Petitioner’s Medicare enrollment application on January 3, 2011. On April 11, 2011,
Highmark approved Petitioner’s enrollment application with an effective date of January
3, 2011 with retroactive billing privileges commencing on December 4, 2010. CMS Ex.
1 at 1-3; CMS Ex. 2.

Petitioner contends that his effective date of enrollment should be August 1, 2010, the
date he began rendering services to Medicare beneficiaries. Petitioner does not deny that
CMS received his completed enrollment application on January 3, 2011. However,
Petitioner argues that his effective date should be earlier because CMS and its contractors
made errors in the processing of Petitioner’s enrollment application, and he was unable to
submit his application electronically. HR; P. Response. Petitioner also argues that it is a
hardship for Petitioner to forgo payment for services he provided to Medicare
beneficiaries prior to the date his Medicare enrollment became effective; the enrollment
process was confusing and not “user-friendly;” and that CMS should be held accountable
for delays caused by flaws in the automated enrollment process. HR; P. Response.
The effective date of Medicare enrollment and billing privileges for physicians is dictated
by 42 C.F.R. § 424.520(d). The regulation provides:

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

(Emphasis added).

The regulation is clear. A physician’s effective date for Medicare billing privileges is
determined according to the latter of the two dates specified by the regulation. The “date
of filing” is the date that the Medicare contractor receives a signed enrollment application
that the Medicare contractor is able to process to approval. 42 C.F.R. § 424.510(d)(1); 73
Fed. Reg. 69,725, 69,769 (Nov. 19, 2008). The Medicare contractor, CMS, and I are
bound to follow the Secretary’s regulations. Because it is undisputed that Petitioner’s
enrollment application was received by the contractor on January 3, 2011, which is after
the date Petitioner began providing services, the regulation dictates that January 3, 2011
is the effective date of Petitioner’s enrollment. I have no discretion to determine an
earlier effective date. Further, because there is no dispute that there was no emergency
declared by the President between August 1, 2010 and January 3, 2011, 42 C.F.R.

§ 424.521(a) limits to 30 days the period for which Petitioner may retroactively bill for
services provided to Medicare eligible beneficiaries.

Petitioner’s arguments regarding flaws in the electronic enrollment system and confusion
in the enrollment process are equitable in nature and do not show as a matter of fact that
Petitioner filed an application on an earlier date than CMS determined or that the
contractor or CMS incorrectly applied the regulatory criteria. Even accepting Petitioner’s
assertions as true, Petitioner’s equitable arguments give me no ground to grant Petitioner
an earlier effective date of enrollment. See 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 source of authority for me to grant him an exemption from
regulatory compliance. Moreover, I have no authority to declare statutes or regulations
invalid or ultra vires. 1866/CPayday.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.”). Thus, I have no authority to change Petitioner’s Medicare
enrollment date based upon equitable considerations.

Petitioner’s arguments regarding errors by CMS employees and contractors may also be
construed to be an estoppel argument. Estoppel against the federal government, if
available at all, is presumably unavailable absent “affirmative misconduct,” such as
fraud. See, e.g., Pacific Islander Council of Leaders, DAB No. 2091, at 12 (2007); Office
of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). None of the circumstances
Petitioner describes fit that standard or permit me to ignore the requirements of the
regulations governing Petitioner’s enrollment in Medicare.

Accordingly, I conclude that Petitioner’s effective date of Medicare enrollment was
January 3, 2011, the date on which he submitted a complete enrollment application that
could be processed to approval pursuant to 42 C.F.R. § 424.520(d). 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 his effective date of enrollment,
i.e. December 4, 2010.

III. Conclusion

For the foregoing reasons, I conclude that Petitioner’s effective date of Medicare
enrollment was January 3, 2011, and that Petitioner could bill for service provided to
Medicare eligible beneficiaries for up to 30 days prior to his effective date.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Bedford Care Center of Hattiesburg, LLC,
(CCN: 25-5158),

Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-11-25
Decision No. CR2523

Date: April 3, 2012

DECISION

Petitioner Bedford Care Center of Hattiesburg, LLC, challenges the determination of the
Centers for Medicare & Medicaid Services (CMS) that it was not in substantial
compliance with program participation requirements. Petitioner also challenges CMS’s
imposition of a per day civil money penalty (CMP) of $3,550 per day from July 25
through 30, 2010, and $150 per day from July 31 through August 30, 2010, for a total
CMP of $25,950. For the reasons discussed below, I sustain CMS’s determination and
imposition of the $25,950 CMP.

I. Background

Petitioner is a long-term care facility located in Hattiesburg, Mississippi. Petitioner
participates in the Medicare and Medicaid programs. The Mississippi Department of
Health (state agency) completed a recertification survey of the facility on July 31, 2010,
and a revisit survey on October 12, 2010. Based on the findings of the July 31, 2010
survey, Petitioner was found out of substantial compliance with seven participation
requirements. CMS Exhibit (Ex.) 2; Petitioner Exhibits (P. Exs.) 1, 2. By letter dated
August 13, 2010, CMS notified Petitioner that it was imposing the remedies of a CMP of
$3,550 per day effective July 25 through July 30, 2010, and $150 per day effective July
31, 2010 until substantial compliance was achieved or Petitioner’s provider agreement
terminated; a discretionary denial of payment for new admissions (DPNA) effective
August 28, 2010; and mandatory termination on January 31, 2010, if Petitioner was still
out of substantial compliance on that date. Petitioner was also notified that as a result of
the extended survey, it might lose its authority to conduct a nurse aide training program
(NATCEP). CMS Ex. 6. By letter dated October 18, 2010, CMS notified Petitioner that
following a survey on October 12, 2010, it had been found in substantial compliance as
of August 31, 2010. CMS Ex. 7.

By letter dated October 12, 2010, Petitioner requested a hearing. I held a hearing in this
case in Jackson, Mississippi, on July 19 and 20, 2011. A 333-page transcript (Tr.) was
prepared. Testifying were: Toni Gray, a state agency surveyor (Surveyor Gray); Janet
Johnston, a state agency surveyor (Surveyor Johnston); Gussie Conner, Petitioner’s
Director of Nursing (DON Conner); Julia Edwards, Petitioner’s Administrator at the
relevant time (Administrator Edwards); Tambra L. Robbins, a registered dietitian (Ms.
Robbins); Diane Akins, a speech language pathologist (Ms. Akins); A. Louise Ridgway,
certified nursing assistant (CNA) supervisor at Petitioner’s facility (Ms. Ridgway); and
Daniel R. Blackledge, Director of Corporate Compliance and Human Resources for the
company managing Petitioner’s facility (Mr. Blackledge). I admitted CMS Exs. 1-40. I
admitted P. Exs. 1-14 at hearing, and now admit P. Ex. 16.! Tr. at 311-12, 314. Both
parties filed pre-hearing briefs (CMS and P. Pre-hearing Br.); post-hearing briefs (CMS
and P. Br.); and post-hearing answer briefs (CMS and P. Ans. Br.).

II. Issues
The issues before me are:

1. Whether Petitioner was in substantial compliance with participation
requirements in the Medicare and Medicaid programs; and

2. Whether the remedies imposed are reasonable.”
Ill. Controlling Law
Sections 1819 and 1919 of the Social Security Act (Act) and the regulations at 42 C.F.R.

Part 483 govern Petitioner’s participation in Medicare and Medicaid. Sections 1819 and
1919 of the Act provide the Secretary of Health and Human Services (Secretary) with

' P. Ex. 16 consists of an August 2, 2010 report of an investigation conducted by Mr.
Blackledge, which Petitioner filed on August 18, 2011.

> Petitioner has not challenged the DPNA or the NATCEP, but only the imposition and
reasonableness of the CMP. P. Pre-hearing Br. at 18, 20; P. Br. at 23; P. Ans. Br. at 6.
authority to impose remedies, including CMPs, against long-term care facilities for
failure to comply with participation requirements.

Regulations define the term “substantial compliance” to mean:

[A] level of compliance with the requirements of participation such that any
identified deficiencies pose no greater risk to resident health or safety than the
potential for causing minimal harm.

42 C.F.R. § 488.301.

The Secretary has delegated to CMS and the states the authority to impose remedies
against long-term care facilities not complying substantially with federal participation
requirements. The applicable regulations at 42 C.F.R. Part 488 provide that state survey
agencies, on behalf of CMS, may survey facilities participating in Medicare and
Medicaid to ascertain whether the facilities are complying with participation
requirements. 42 C.F.R. §§ 488.10-488.28. The regulations contain special survey
conditions for long-term care facilities. 42 C.F.R. §§ 488.300-488.335. Under Part 488,
a state or CMS may impose a CMP against a long-term care facility if a state survey
agency ascertains that the facility is not complying substantially with participation
requirements. 42 C.F.R. §§ 488.406, 488.408, and 488.430. The CMP may begin to
accrue as early as the date that the facility was first substantially out of compliance or
may continue to accrue until the date the facility achieves substantial compliance, or until
CMS terminates the facility’s provider agreement. 42 C.F.R. § 488.440.

The regulations specify that if a CMP is imposed against a facility based on an instance
of noncompliance, the CMP will be in the range of $100 to $10,000 per instance. 42
C.F.R. § 488.438(a)(2). When a CMP is imposed against a facility on a per-day basis, it
must fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The
upper range of CMP, from $3,050 per day to $10,000 per day, is reserved for deficiencies
that constitute immediate jeopardy to a facility’s residents and, in some circumstances,
for repeated deficiencies. 42 C.F.R. § 488.438(a)(1)(i), (d)(2). The lower range of CMP,
from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute
immediate jeopardy, but either cause actual harm to residents or cause no actual harm,
but have the potential for causing more than minimal harm. 42 C.F.R. §
488.438(a)(1)(ii). “Immediate jeopardy” is defined as:

[A] situation in which the provider’s noncompliance with one or more

requirements of participation has caused, or is likely to cause, serious injury, harm,

impairment, or death to a resident.

42 C.F.R. § 488.301.
Sections 1819(f)(2)(B) and 1919(f)(2)(B) of the Act prohibit approval of a NATCEP if
within the last two years the facility has been subject to, among other things, an extended
or partial extended survey; imposition of a CMP of not less than $5,000; or imposition or
a DPNA.

The Act and regulations make a hearing before an Administrative Law Judge (ALJ)
available to a long-term care facility against which CMS has determined to impose an
enforcement remedy. Act, section 1128A(c)(2), 1866(h); 42 C.F.R. §§ 488.408(g),
498.3(b)(13). The hearing before an ALJ is a de novo proceeding. The Residence at
Salem Woods, DAB No. 2052 (2006); Cal Turner Extended Care, DAB No. 2030 (2006);
Beechwood Sanitarium, DAB No. 1906 (2004); Emerald Oaks, DAB No. 1800, at 11
(2001); Anesthesiologists Affiliated, DAB CR65 (1990), aff'd, 941 F.2d 678 (8" Cir.
1991). A facility has the right to appeal a certification of noncompliance leading to an
enforcement remedy. 42 C.F.R. § 488.408(g)(1); 42 C.F.R. §§ 488.430(e), 498.3.
However, the choice of remedies, or the factors CMS considered when choosing
remedies are not subject to review. 42 C.F.R. § 488.408(g)(2). A facility may challenge
the scope and severity that CMS cites only if a successful challenge would affect the
range of CMP amounts that CMS imposed or would affect the facility’s NATCEP. 42
C.F.R. § 498.3(b)(14), (d)(10)(i). CMS’s determination as to the scope and severity of
noncompliance “must be upheld unless it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2).
This includes CMS’s finding of immediate jeopardy. Woodstock Care Center, DAB No.
1726, at 9 (2000), aff'd, Woodstock Care Center v. U.S. Department of Health and
Human Services, 363 F.3d 583 (6"" Cir. 2003). The Departmental Appeals Board (Board)
has long held that the net effect of these regulations is that a provider has no right to
challenge the scope and severity assigned to a noncompliance finding except in the
situation where that finding is the basis for an immediate jeopardy determination. See,
e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000).
ALJ review of a CMP is subject to 42 C.F.R. § 488.438(e).

The standard of proof or quantum of evidence required is a preponderance of the
evidence. CMS has the burden of coming forward with evidence and making a prima
facie showing of a basis for imposition of an enforcement remedy. Petitioner bears the
burden of persuasion to show by a preponderance of the evidence that it was in
substantial compliance with participation requirements or any affirmative defense.
Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing &
Convalescent Center, DAB No. 1904 (2004), aff'd, Batavia Nursing & Convalescent
Center v. Thompson, 129 F. App’x 181 (6" Cir. 2005); Emerald Oaks, DAB No. 1800;
Cross Creek Health Care Center, DAB No. 1665 (1998); Hillman Rehabilitation Center,
DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. United States, No. 98-
3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999).
IV. Discussion

I make numbered findings of fact and conclusions of law (Findings) to support my
decision. I set them forth below as separate headings, in bold and italic type, and discuss
each in detail.*

Although the July 31, 2010 survey cited seven deficiencies, Petitioner is only contesting
the two deficiencies cited at a level J,* which CMS alleges violated 42 C.F.R. §
483.10(b)(11) (Tag F-157)° which sets forth a facility’s duty to notify physicians and
family of significant changes in a resident’s condition, and 42 C.F.R. § 483.25 (Tag F-
309) which requires a facility to provide a resident the necessary care and services to
attain or maintain the resident’s highest practicable physical, mental, and psychosocial
well-being, in accordance with the resident’s comprehensive assessment and plan of care.
Both cited deficiencies are based on a series of events involving the use of a syringe in
feeding one resident. Below, I address only the alleged violation of 42 C.F.R. § 483.25
(Tag F-309) because it is not necessary for me to address the alleged violation of 42
C.F.R. § 483.10(b)(11) (Tag F-157) to support the CMP imposed. Plott Nursing Home,
DAB No. 2426, at 24 (2011); see also Residence at Salem Woods, DAB No. 2052, at 11
(2006).

1. Petitioner was out of substantial compliance with the participation
requirement at 42 C.F.R. § 483.25 (Tag F-309).

The regulation at 42 C.F.R. § 483.25 requires that each resident receive and the facility
provide the “necessary care and services to attain or maintain the highest practicable
physical, mental, and psychosocial well-being, in accordance with the comprehensive
assessment and plan of care.” The Board has found that while the regulation does not
impose a strict liability standard on facilities, or make facilities “unconditional guarantors

* [have reviewed the entire record, including all the exhibits and testimony. Because the
Federal Rules of Evidence do not control the admission of evidence in proceedings of this
kind (see 42 C.F.R. § 498.61), I may admit evidence and determine later, upon a review
of the record as a whole, what weight, if any, I should accord that evidence or testimony.
To the extent that any contention, evidence, or testimony is not explicitly addressed or
mentioned, it is not because I have not considered the contentions. Rather, it is because I
find that the contentions are not supported by the weight of the evidence or by credible
evidence or testimony.

+ A scope and severity citation of J describes an isolated deficiency constituting
immediate jeopardy.

* An F-Tag designation refers to the section of the state operations manual (SOM),
Appendix PP, which gives guidance to state agency surveyors regarding specific
regulatory requirements and the investigation of compliance with those requirements.
The statement of deficiencies (SOD) sets out deficiencies by F-Tag.
of favorable outcomes,” it does impose an affirmative duty to provide services designed
to achieve those outcomes to the highest practicable degree. A facility must take such
“reasonable steps” and “practicable measures” to achieve that end. Sheridan Health Care
Center, DAB No. 2178, at 13-15, citing Woodstock Care Center, DAB No. 1726, at 25
(2000), aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003); Clermont
Nursing & Convalescent Ctr., DAB No. 1923, at 21 (2004), aff'd, Clermont Nursing &
Convalescent Ctr. v. Leavitt, 142 Fed. App. 900 (6th Cir. 2005).

The SOD alleges that Petitioner fell short of its obligation to meet this requirement with
respect to Resident 5, an individual totally dependent on staff to feed her. The SOD
charges that Resident 5 did not receive “the necessary care and services to prevent
possible aspiration due to being syringe fed by a private sitter.” CMS Ex. 2, at 24. CMS
alleges further that because Petitioner’s staff failed to follow the explicit orders of
Resident 5’s physician, Dr. Gillespie, Resident 5’s care did not meet professionally
recognized standards of care. I agree.

Upon re-admission to the facility on September 25, 2007, Resident 5, then an 88-year-old
woman, was noted to have diagnoses including dementia, dehydration, atrial fibrillation,
and dysphagia, oropharyngeal phase. CMS Ex. 21; P. Ex. 6. A social history taken
during a hospital admission on April 5, 2010 noted that Resident 5 was “dependent upon
others for all her needs. She has to be fed. She has to be turned. She has to be cleaned.
She has a history of dysphagia and [a] feeding tube has been recommended in the past but
the family has refused.” P. Ex. 13, at 3. Minimum Data Set (MDS) assessments from
November 16, 2009, April 21, 2010, and May 3, 2010, noted that Resident 5 was totally
dependent on staff for assistance with eating. CMS Ex. 23, at 2; CMS Ex. 24, at 3; CMS
Ex. 25, at 2; CMS Ex. 28, at 1. A nursing Kardex care card dated May 4, 2010, noted she
was to be fed a pureed diet with nectar thickened liquids, and positioned at an upright 90
degree angle while wearing a soft neck collar. CMS Ex. 33, at 1; see CMS Ex. 30, at 22,
50, 61.

It is undisputed that Resident 5’s family hired a private sitter for Resident 5. An October
12, 2009 care plan entry notes that Resident 5 had a sitter, among whose duties was to
assist Resident 5 with socialization. CMS Ex. 30, at 37. The sitter also was to assist the
facility in feeding Resident 5. A February 1, 2010 care plan entry regarding Resident 5’s
mechanically altered diet notes as an intervention that Resident 5 is to be “[h]and fed
meals by staff & sitter.” CMS Ex. 30, at 59, 61. There is nothing of record, however,
explaining how the duty was to be shared, or how Petitioner’s staff would supervise the
sitter’s feedings.

On May 12, 2010, Resident 5’s physician, Dr. Gillespie, was making rounds at the
facility. Upon entering Resident 5’s room, Dr. Gillespie observed the sitter with a
feeding syringe. Dr. Gillespie told the sitter that feeding syringes should not be used to
feed Resident 5, because their use could result in Resident 5’s aspiration of the food
material and could result in Resident 5’s death. P. Pre-hearing Br. at 6. Nurse’s notes
from that date reflect that Dr. Gillespie faxed the facility an order regarding “family’s
req[uest] to use syringe to feed” Resident 5. Dr. Gillespie ordered the facility not to use
feeding syringes because such syringes can cause aspiration. P. Ex. 9. The staff member
who wrote the nurse’s note apparently spoke with the sitter about Dr. Gillespie’s order
and documented in the nurse’s notes that the sitter was to talk to Resident 5’s family
about Dr. Gillespie’s order. P. Pre-hearing Br. at 6; P. Ex. 8; Tr. at 161. Facility
personnel placed Dr. Gillespie’s order regarding syringes on Resident 5’s plan of care,
with the “goal” that Resident 5 would not aspirate through the next review. P. Ex. 14, at
2 (“Do not use syringes for feeding, syringes cause aspiration.”); CMS Ex. 30, at 60, 62;
P. Pre-hearing Br. at 6. However, no approaches or interventions were suggested
regarding how this order was to be implemented or monitored.

On May 26, 2010, DON Conner was informed that a feeding syringe had been observed
on a meal tray in Resident 5’s room. DON Conner documented in nurse’s notes that:

Dietary supervisor reported that there was a feeding syringe laying on overbed
table. Sitter was in room. I went to room and saw the syringe but it wasn’t being
used while I was in room.

Spoke [with] sitter regarding using syringe to feed resident. Explained that it is
against facilities (sic) policy as well as state regulation. Also explained the
possibility of resident aspirating when using it, voiced understanding.

CMS Ex. 38, at 1. DON Conner testified she counseled the sitter that using a syringe to
feed a resident was against Petitioner’s policy and state regulations.° Tr. at 117-19, 160.
DON Conner testified that the sitter told her she would not use a syringe and DON
Conner took the sitter’s word for it. Tr. at 119. Petitioner asserts the sitter also explained
to DON Conner that she used the feeding syringe at the instruction of Resident 5’s
family. P. Pre-hearing Br. at 7-8. DON Conner testified that after this incident she spoke
with the RN and CNA supervisors and the CNAs and asked them to observe Resident 5,
especially at feeding time, to ensure that no syringe feeding was done. Tr. at 119-20,
123-24.

The SOD notes that during a July 29, 2010 surveyor interview with Dr. Gillespie, Dr.
Gillespie stated that on July 25, 2010, she again saw the sitter feeding Resident 5 with a
syringe and again told her not to use the syringe. CMS Ex. 2, at 31-32. Surveyor
Johnston testified that Dr. Gillespie told her she saw the sitter syringe-feeding Resident 5
two or three days prior to the survey. Dr. Gillespie told the sitter not to continue the
syringe-feeding because it was dangerous and there were risks involved and told her the

° DON Conner later testified that her understanding that use of a syringe was prohibited
by state regulation was incorrect. Tr. at 160.
Resident should be spoon-fed by staff. Surveyor Johnston did not know what Dr.
Gillespie told the facility about her observations. Tr. at 91-92. In a physician’s monthly
progress note dated July 28, 2010, the sitter admitted to Dr. Gillespie that she knew Dr.
Gillespie had told her not to use the syringes but she continued to use them anyway.
CMS Ex. 29, at 40. In another physician’s monthly progress note dated July 28, 2010,
Dr. Gillespie documented that the sitter told Dr. Gillespie that she was aware that
Resident 5 was at risk for aspiration with syringe-feeding. The sitter admitted that
Resident 5’s family gave her the syringes to bring to the facility to feed Resident 5. Dr.
Gillespie noted that the sitter stated that she had been trained to feed patients by syringe
while working at a hospital. The sitter admitted that it was her idea to syringe-feed,
based on her understanding that the family was adamantly against a feeding tube and
Resident 5 was losing weight. The sitter admitted her “boss” — Resident 5’s son — told
er to use the syringe to feed his mother knowing that it was against facility policy. Dr.
Gillespie noted that the sitter was also aware that she was not to remove Resident 5’s “c-
collar” during feeding. CMS Ex. 29, at 41. On May 16, 2010, Dr. Gillespie had ordered
that Resident 5 wear a soft cervical collar daily from 6:30 a.m. to 6:30 p.m. CMS Ex. 29,
at 16. Surveyor Gray testified that Resident 5 was to have a neck collar on at mealtime to
position her head and promote swallowing. Surveyor Gray did not see the collar on the
resident. The sitter told Surveyor Gray that she took the collar off when feeding Resident
5 because the collar made it slower to feed her. Tr. at 41.

On July 28, 2010, during the survey, Surveyor Gray testified that she discovered the sitter
in possession of feeding syringes in Resident 5’s room. Tr. at 28. She reported this to
DON Conner. The sitter admitted to DON Conner that she had a syringe and DON
Conner brought Administrator Edwards to the room. Administrator Edwards asked the
sitter for the syringes. The sitter wanted to give the syringes back to the family. After
Administrator Edwards told the sitter she would not be allowed to give the syringes back
to the family, the sitter complied and gave Administrator Edwards the syringes. DON
Conner disposed of them. Tr. at 125-27, 177-79.

In its answer brief, Petitioner encapsulates CMS’s arguments to be that: Petitioner’s staff
failed to follow physician’s orders regarding use of a feeding syringe; Petitioner allowed
the sitter to continue to feed Resident 5 despite being aware that Resident 5’s care plan
prohibited syringe feeding; to protect Resident 5 the only action Petitioner took was to
counsel the sitter; and Petitioner did not adequately monitor the sitter. P. Ans. Br. at 3.”

7 Petitioner also notes CMS’s argument that Petitioner violated its own policies
regarding the use of private duty sitters. Petitioner asserts it had not adopted a policy
covering the use of private duty sitters at the time of the survey. I do not address the
issue as it is not necessary for me to do so to support my decision in the case.
Petitioner asserts that the conduct that posed a risk to Resident 5 was covertly undertaken
by the sitter, who was also a friend of Resident 5’s family, not simply an employee of the
family. P. Br. at 2; P. Ans. Br. at 5. Petitioner asserts that at all times the syringes were
in the exclusive control of the sitter, without the facility’s knowledge or approval.
Petitioner argues that the fact that the sitter effectively concealed the syringes should not
detract from the adequacy of the monitoring procedures undertaken by Petitioner’s staff.
Moreover, Petitioner argues that the sitter had every right to assist in feeding Resident 5,
so long as she obeyed the directive against use of a feeding syringe. P. Ans. Br. at 3-4.
Petitioner argues that it is undisputed that there was no accident caused by or injury
sustained by Resident 5 due to the sitter’s use of a syringe. And, after Petitioner
discovered the sitter was feeding Resident 5 by syringe, Petitioner undertook “reasonable
and appropriate steps and actions” to provide Resident 5 with care, including monitoring
er. Specifically, Petitioner asserts that the RN supervisor immediately informed other
nursing staff about the incident, requested monitoring of Resident 5’s room, periodically
searched Resident 5’s room, and required that Resident 5’s door be open unless care was
being provided in a context requiring privacy. Petitioner asserts that the RN supervisor
implemented personal monitoring of the room during lunch and evening meals, and only
observed the sitter to use a spoon to feed Resident 5. P. Br. at 20-21; P. Ans. Br. at 4; Tr.
at 119-20, 141, 150-51. Further, Petitioner consistently designated CNAs to feed
Resident 5. On certain days the sitter asked to feed Resident 5 and she was permitted to
do so. However, Petitioner remained responsible for insuring that her dietary needs were
met. P. Ans. Br. at 5; Tr. at 146-47.

Petitioner argues that although the SOD indicates that there is no documentary evidence
that Petitioner monitored meals being administered to Resident 5 after the syringes were
discovered, or any documentary evidence that Petitioner took other action to monitor her
feeding activities, the absence of such documentation is not conclusive evidence
regarding whether or not such monitoring occurred. Petitioner asserts it had reasonable
measures in place to monitor the sitter and Resident 5’s feeding activities, whether the
actions were documented or not. P. Br. at 21 n.9.

Petitioner argues that it is being held to a strict liability standard, whereas the law only
required it to take reasonable steps and actions to ensure that Resident 5 received the
necessary care and services to attain or maintain her highest practicable physical, mental,
and psychosocial well-being in accordance with her comprehensive assessment and plan
of care. Petitioner asserts it met that standard in its care of Resident 5. Moreover,
Petitioner asserts that I should rely on the facility’s own judgment as to what must be
done to attain or maintain this standard. P. Br. at 21-22.

Petitioner argues that a facility cannot control everything a sitter may do, or what family
members or visitors may do when they come to the facility. I find, however, that once a
facility discovers that a sitter, family member, or visitor is doing something that is likely

10

to place a resident at risk of serious harm, the facility has a high duty to monitor the
situation to negate that risk. Petitioner failed to do so here.

I accept the view that Petitioner did not order or even condone the syringe-feeding that
was going on and I acknowledge that it was the family who provided the syringes,
engaged the sitter who used them, and encouraged the sitter in their use. My
acknowledgment, however, does not mean that I find Petitioner compliant with
participation requirements. This case does not oblige me to decide whether the
regulations allow a private sitter to feed a resident. The case asks — and requires me to
decide — whether after Dr. Gillespie’s May 12 Order, and certainly after DON Conner’s
May 26 discussion with the sitter, Petitioner took reasonable steps and practicable
measures to ensure that Resident 5 was not fed by syringe. I find that CMS has made a
prima facie case, which Petitioner did not rebut, that Petitioner did not take such
reasonable steps and practicable measures.

Surveyor Gray testified that Petitioner had no documentation showing how Petitioner
monitored the sitter to prevent her feeding Resident 5 with a syringe. Tr. at 32.

Surveyor Johnston testified that nothing was documented in Resident 5’s chart to show
exactly what procedures Petitioner actually put into place to monitor the sitter when
feeding Resident 5. Tr. at 90-91, 94. While Petitioner’s witnesses have testified that they
monitored the situation, there is no contemporaneous evidence showing that they did so,
and no care plan or other instruction spelling out how they should monitor the sitter when
she fed Resident 5, how often they should check on her, and for how long a period of
time they should continue with the monitoring.

Resident 5’s sitter had shown by May 26 that she had the potential to persist in feeding
Resident 5 with a syringe despite the facility’s telling her not to do so and explaining to
her the danger of Resident 5’s aspirating if syringe-fed. Instead of simply taking the
sitter’s word that she would not syringe-feed, DON Conner ought to have taken proactive
and not unreasonable measures to verify that the sitter was in fact not feeding Resident 5
by syringe in order to assure Resident 5’s safety. DON Conner could have, for instance,
placed a staff member in the room with the sitter (perhaps the CNA who was assigned to
do her feeding if the sitter did not) whenever the sitter fed Resident 5, for the entire time
of feeding, to ensure that no syringe-feeding was done. And the actions taken to ensure
that Resident 5 was not syringe-fed ought to have been documented, either in nurse’s
notes or on some other form. Without documentation there is no way for a reviewer to
ensure that the sitter and Resident 5 were actually observed during an entire feeding.
Doing so is not unreasonable or impractical, especially here where the CNA would have
been feeding Resident 5 had the sitter not been there.

The facility is ultimately responsible for Resident 5’s safety, and thus it cannot evade
responsibility for the care provided the resident by the sitter. Although the sitter was not
Petitioner’s employee, Resident 5’s February 1, 2010 care plan represented that she was
11

feeding the resident and thus acknowledged that the facility was aware that she was.
Even if I accept all of Petitioner’s assertions regarding what it did to monitor the
situation, this much is clear: given the threat of aspiration (which all parties understood),
the measures Petitioner implemented were simply not enough to protect Resident 5. And,
as a result of Petitioner’s failures, the sitter continued to feed the resident via syringe, as
the surveyors, Dr. Gillespie, DON Conner, and Administrator Edwards discovered in
July.

The parties did not directly address in their briefs the failure to use a collar on Resident 5
during feeding. However, I find the failure to use a collar, despite physician’s orders to
do so, to be further evidence of Petitioner’s failure to comply with this participation
requirement.

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

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause,
“serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. CMS’s
determination as to the level of a facility’s noncompliance (which includes an immediate
jeopardy finding) must be upheld unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c).
The Board has observed repeatedly that CMS’s determination of immediate jeopardy is
presumed to be correct and Petitioner faces a “heavy burden” to demonstrate that CMS’s
determination is clearly erroneous. Owensboro Place and Rehabilitation Center, DAB
No. 2397, at 9 (2011), citing Azalea Court, DAB No. 2352, at 16-17 (2010) and cases
cited therein.

Petitioner has not shown here that CMS’s determination of immediate jeopardy was
clearly erroneous. As noted above, the danger of aspiration from syringe-feeding is
obvious and was known by Petitioner at the time. Surveyor Gray testified that aspiration
occurs when stomach contents, fluid or food enter the respiratory system. Syringe
feeding can lead to a high risk of aspiration. And aspiration can sometimes cause death.
Tr. at 26-28. Resident 5 was particularly debilitated and at risk. Tr. at 40-41. Surveyor
Johnston testified that the risks of syringe-feeding are “aspiration, development of
pneumonia, possible choking, and could result in death.” Tr. at 88. See P. Prehearing Br.
at 6, 12. Although there is no conclusive evidence that Resident 5 ever aspirated or was
otherwise harmed by the syringe feeding, the likelihood of aspiration was manifest each
time she was syringe-fed.

3. The remedy imposed is reasonable.

In determining whether the CMP imposed here is reasonable, I apply the factors listed in
42 C.F.R. § 488.438(f), which include: (1) the facility’s history of noncompliance; (2)
the facility’s financial condition; (3) the factors specified in 42 C.F.R. § 488.404; and (4)
12

the facility’s degree of culpability, which includes neglect, indifference, or disregard for
resident care, comfort, or safety. The absence of culpability is not a mitigating factor.
The factors at 42 C.F.R. § 488.404 include: (1) the scope and severity of the deficiency;
(2) the relationship of the deficiency to other deficiencies resulting in noncompliance;
and (3) the facility’s prior history of noncompliance in general and specifically with
reference to the cited deficiencies.

Petitioner does not specifically iterate reasons for me to reduce the amount of the CMP or
the duration of the CMP, asserting only that should I find Petitioner violated a
participation requirement I should find the CMP assessed unreasonable. P. Prehearing
Br. at 20, 21; P. Br. at 23, 24; P. Ans. Br. at 6.

Petitioner has a history of noncompliance with 42 C.F.R. § 483.25, Tag F-309, as it had
quality of care deficiencies under this requirement during surveys conducted in 2007,
2009, and 2010. CMS. Ex. 9. Petitioner has not provided any evidence with regard to its
financial condition. The deficiency is serious, constituting immediate jeopardy.
Accordingly, I find the CMP imposed by CMS, totaling $25,950, is reasonable.

V. Conclusion

For the reasons set forth above, CMS is authorized to impose a $25,950 CMP.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Antonio Silva-Sayago, M.D.,
(PTAN: 002076601)
Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-122
Decision No. CR2521

Date: March 29, 2012

DECISION

New England Neurological Associates, P.C. (N.E. Neurological) on behalf of Petitioner
Antonio Silva-Sayago, M.D. appeals the effective date assigned to his enrollment as a
Medicare provider with N.E. Neurological. For the reasons explained below, I grant the
Centers for Medicare and Medicaid Services’ (CMS’s) Motion for Summary Judgment
upholding the March 9, 2011 effective date.

I. Background

On November 16, 2011, Petitioner filed a hearing request, challenging the effective date
determination of NHIC, Corp. (NHIC), a Medicare contractor. CMS submitted a Motion
for Summary Judgment and a brief in support of its motion (CMS Br.), along with four
exhibits identified as CMS Exs. 1-4. Petitioner filed his opposition to the CMS Motion
(P. Br.), to which he attached one exhibit (P. Ex. 1).' On January 17, 2012, I directed
CMS to reply to Petitioner’s opposition, and CMS complied on February 1, 2012 (CMS
Reply). Petitioner filed his Response to the CMS Reply (P. Response) on February 27,

' Petitioner marked his exhibits with his initials “AJSS” preceding the exhibit number.
For clarity, I refer to Petitioner’s exhibits as “P. Ex.” rather than as “AJSS Ex.”
2012 and included two additional exhibits (P. Exs. 2-3). In the absence of objection, I
admit CMS Exs. 1-4 and P. Exs. 1-3 into the record.

II. Applicable Law

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

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

(2).

The effective date of enrollment for physicians and nonphysician practitioners is set as
follows:

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

42 C.F.R. § 424.520(d).
II. Issue

The issue in this case is whether CMS’s contractor and CMS properly determined
Petitioner’s effective date of Medicare enrollment.

IV. Analysis

My findings of fact and conclusions of law are set forth in italics and bold in the
discussion captions of this decision.
A, This case is appropriate for summary judgment.

CMS argues that it is entitled to summary judgment. The Departmental Appeals Board
(Board) stated the standard for summary judgment:

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

law. ... To defeat an adequately supported summary judgment motion, the
non-moving party may not rely on the denials in its pleadings or briefs, but
must furnish evidence of a dispute concerning a material fact — a fact that, if
proven, would affect the outcome of the case under governing law. ... In
determining whether there are genuine issues of material fact for trial, the
reviewer must view the evidence in the light most favorable to the non-
moving party, drawing all reasonable inferences in that party’s favor.

Senior Rehabilitation & Skilled Nursing Center, DAB No. 2300, at 3 (2010) (citations
omitted).

The Board has further explained that the role of an Administrative Law Judge (ALJ) in
deciding a summary judgment motion differs from its role in resolving a case after a
hearing. The ALJ should not assess credibility or evaluate the weight of conflicting
evidence. Holy Cross Village at Notre Dame, Inc., DAB No. 2291, at 5 (2009).

I have accepted all of Petitioner’s factual assertions as true and drawn all reasonable
inferences in his favor. Therefore, I accept Petitioner’s claim that he did not receive
notice that his application could not be processed by NHIC because it was incomplete or
inaccurate. I furthermore accept Petitioner’s assertion that had he or N.E. Neurological
received the notice, they would have promptly remedied the problem. Hearing Request;
P. Br. at 2-3; P. Response at 2. For the purposes of summary judgment, I accept
Petitioner’s description of events as true. However, this depiction remains unsupportive
of a favorable outcome for Petitioner. I find that Petitioner has not disputed any fact
material to my resolution of the case. Accordingly, I agree with CMS that summary
judgment is appropriate in this case.

B. CMS correctly determined the effective date of Petitioner’s Medicare
enrollment.

Petitioner is a neurologist employed by N.E. Neurological, a medical practice located in
Lawrence, Massachusetts. On October 13, 2010, Petitioner signed a Medicare enrollment
application (Form CMS-855R) for participation as a N.E. Neurological group member,
and on October 13, 2010, he began seeing Medicare beneficiaries. CMS Ex. 1, at 15;
CMS Ex. 2, at 1. On Petitioner’s behalf, N.E. Neurological, through its Contracts
Administrator, Helena Silveira-Carlin, filed a Medicare enrollment application that NHIC
received on November 29, 2010. CMS Ex.1. Because the name listed on Petitioner’s
medical license (“Antonio J. Silva-Sayago”) did not match the National Practitioner
Identifier (NPI) registry (“Antonio Jose Silva,”) the contractor was unable to approve his
application. CMS Ex. 1, at 4-5. On January 25, 2011, NHIC faxed a notice to Petitioner
notifying him that he must submit information correcting the name discrepancy within 15
days or he would be required to complete a new application. Petitioner did not receive
this notice and did not respond. P. Ex. 1. Consequently, by letter dated March 1, 2011,
NHIC informed Petitioner that his application was denied. CMS Ex. 1, at 1.

On March 8, 2011, N.E. Neurological updated the NPI registry so that Petitioner’s name
was consistent with his medical license. NHIC received the relevant documentation
supporting the change on March 9, 2011. CMS Ex. 2, at 1, 3, 5. NHIC then processed
Petitioner’s application to approval. By letter dated May 2, 2011, NHIC notified
Petitioner that his application was approved and his Provider Transaction Access Number
(PTAN) would be effective March 9, 2011. CMS Ex. 3, at 4.

The determination of the effective date of Medicare enrollment is governed by 42 C.F.R.
§ 424.520. Section 424.520(d) provides that the effective date for enrollment for
nonphysicians, among others, is “the later of the date of filing of a Medicare enrollment
application that was subsequently approved by a Medicare contractor or the date an
enrolled physician or nonphysician practitioner first began furnishing services at a new
practice location.” The “date of filing” is the date that the Medicare contractor “receives”
a signed provider enrollment application that the Medicare contractor is able to process
to approval. 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008). It is well settled that the date
of filing is the date the Medicare contractor receives an approvable application. Caroline
Lott Douglas, PA, DAB CR2406 (2011); Rizwan Sadiq, M.D., DAB CR2401 (2011);
Jennifer Tarr, M.D., DAB CR2299 (2010); Michael Majette, D.C., DAB CR2142 (2010);
Roland J. Pua, M.D., DAB CR2163 (2010).

Neither party contends that the contractor was able to process Petitioner’s November 29,
2010 application to approval. In fact, Petitioner concedes that there was a discrepancy in
the form in which his name was listed on the NPI and the form in which it appeared on
his medical license. Hearing Request; P. Br. at 6; see CMS Ex. 2, at 3. Petitioner
requests in essence that I hold to be controlling the date that he first submitted an

> Petitioner further claims that the application was mailed on October 28, 2010 and
suggests that the application may have been received by NHIC prior to the November 29,
2010 date. P. Response at 1-2. For purposes of summary judgment, I accept this
suggestion as true; however, the date of receipt of this application is irrelevant because
this application was inaccurate or incomplete and not able to be processed to approval.
application because although incomplete, its deficiency could have been promptly
remedied. Even though Petitioner wishes to have his billing privileges adjusted to the
date that NHIC initially received an application, Petitioner has pointed to no authority to
which allows this. Rather, the regulations are clear that the application submitted must be
approvable.

It is undisputed that the contractor did not receive a complete and approvable application
from Petitioner until March 9, 2011. Therefore, the correct effective date of Petitioner’s
enrollment remains March 9, 2011. 42 C.F.R. § 424.520(d).

Petitioner’s argument is that the effective date should be adjusted because the name
discrepancy would have been immediately remedied had Ms. Silveira-Carlin known the
content of NHIC’s January 25, 2011 communication. However, this is not a basis to
adjust Petitioner’s enrollment date. Petitioner’s argument amounts to a claim of equitable
estoppel. It is well-established by federal case law, and in Board precedent, that:

(1) estoppel cannot be the basis to require payment of funds from the federal government;
(2) estoppel cannot lie against the government, if at all, absent a showing of affirmative
misconduct, such as fraud; and (3) I am not authorized to order payment contrary to law
based on equitable grounds. See, e.g., Oklahoma Heart Hospital, DAB No. 2183, at 16
(2008); Wade Pediatrics, DAB No. 2153, at 22 n.9 (2008), aff'd, 567 F.3d 1202 (10th
Cir. 2009); Office of Personnel Management v. Richmond, 496 U.S. 414 (1990); Heckler
v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (1984). Although it
may be possible to sympathize with some aspects of Petitioner’s position, the regulations
were promulgated with the understanding that these stricter requirements for enrolling
and maintaining enrollment would have possible effects on providers and suppliers, yet
the stricter Medicare enrollment requirements — such as those that guide this decision —
were understood as a necessary means to further program integrity. See 73 Fed. Reg.
69725, 69768 (November 19, 2008).

V. Conclusion

For the reasons explained above, and based on the undisputed fact that NHIC did not
receive a completed and approvable enrollment application from Petitioner until March 9,
2011, I conclude that Petitioner’s effective date of enrollment was correctly assessed at
March 9, 2011.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Brad Carlson, M.D.,
Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-12-6
Decision No. CR2519
March 26, 2012
DECISION DISMISSING REQUEST FOR HEARING

This matter is before me on the Motion to Dismiss that the Centers for Medicare
and Medicaid Services filed on March 20, 2012. Petitioner opposes the motion. For the
reasons set out below, I grant the Motion to Dismiss.

This case arises from the July 8, 2011, unfavorable redetermination affirming the
Medicare contractor’s, TrailBlazer Health Enterprises, LLC (TrailBlazer ), determination
of Petitioner’s enrollment date in the Medicare program as a supplier.” Petitioner is a
diagnostic radiologist employed with Tulsa X-Ray Lab, Inc., located in Tulsa, Oklahoma.
Petitioner started treating Medicare-eligible patients at Tulsa X-Ray Lab, Inc. on July 1,
2010. Prior to that date, Petitioner submitted to TrailBlazer two Medicare enrollment
applications on June 1, 2010 - a CMS-855] application to enroll as a solo practitioner and
a CMS-855R application reassigning his benefits to Tulsa X-Ray Lab, Inc. CMS Exs. 7,
8,9, 11. TrailBlazer received the enrollment applications on June 3, 2010. TrailBlazer

* Medicare defines “supplier” to mean “a physician or other practitioner, a facility, or
other entity (other than a provider of services) that furnishes items or services” under the
Medicare statute. Social Security Act (Act) § 1861(d), 42 U.S.C. § 1395x(d); see also 42
C.F.R. § 400.202.
subsequently determined that Petitioner was eligible for enrollment in the Medicare
program as of September 21, 2010, and could retrospectively submit claims for payment
as of August 23, 2010. Dissatisfied with the basis for that determination, Petitioner
requested reconsideration seeking an earlier enrollment date of July 1, 2010. TrailBlazer
responded with an unfavorable decision prompting Petitioner to seek review before an
Administrative Law Judge (ALJ). CMS Ex. 1. Petitioner’s request for hearing was
received at the Civil Remedies Division and assigned to me for hearing and decision.

During the pendency of this appeal, CMS moved for summary judgment asserting that
there are no material issues in dispute regarding Petitioner’s effective date determination.
With its motion, CMS submitted 13 exhibits and subsequently supplemented its exchange
by adding an additional exhibit (CMS Exs. 1-14). Petitioner filed a response opposing
CMS’s motion, accompanied by a cross-motion for summary judgment. With its
response and motion, Petitioner submitted two exhibits (P. Exs. 1-2).

Following review of the record, I convened a February 29, 2012 telephone conference
with the parties to clarify some issues. During this conference, CMS agreed there were
some concerns regarding whether TrailBlazer properly processed Petitioner’s enrollment
applications. CMS has since notified me that it has provided Petitioner with the
retrospective billing date he seeks, July 1, 2010.

Considering Petitioner will receive the relief he had requested, and considering there is
no longer an appealable initial determination at issue, I will dismiss. See 42 C.F.R. §§
498.70(b) and 498.3. The parties may request that an order dismissing a case be vacated
pursuant to 42 C.F.R. § 498.72.

/s/
Joseph Grow
Administrative Law Judge