Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Decatur Health Imaging, LLC
(NPI: 1508973017),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-795
Decision No. CR4759
Date: December 13, 2016
DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative
contractor, determined that the effective date for the reactivation of the Medicare billing
privileges for Decatur Health Imaging, LLC (Decatur or Petitioner) was March 7, 2016.
Decatur requested a hearing before an administrative law judge to dispute this effective
date. Because the CMS administrative contractor received an enrollment application to
reactivate Decatur’s billing privileges on March 7, 2016, and the CMS administrative
contractor approved that application, March 7, 2016, is the correct effective reactivation
date for Decatur’s billing privileges.

I. Background and Procedural History

Decatur is an Independent Diagnostic Testing Facility (IDTF) located in Decatur,
Alabama. CMS Exhibit (Ex.) 8 at 17-18, 114-15. On July 9, 2015, Steven Fletcher,
M.D., who had a 6.7% ownership stake in Decatur, passed away. CMS Ex. 1; CMS Ex. 8
at 133; Petitioner’s Ex. 1. On October 23, 2015, a CMS administrative contractor
notified Decatur that it received verified information that Dr. Fletcher was deceased. The
CMS administrative contractor also informed Decatur that “changes of this nature must
be reported by submission of an 855 change request to delete the individual from the
provider or supplier’s Medicare record” within 90 days or the CMS administrative
contractor would deactivate Decatur’s Medicare billing privileges. CMS Ex. 3.

In response to the letter, Decatur filed a CMS-855R (Reassignment of Medicare Benefits
enrollment application), which the CMS administrative contractor received on December
22, 2015. CMS Ex. 4. On December 31, 2015, the CMS administrative contractor
notified Decatur by letter that it received Decatur’s enrollment application, but that the
CMS administrative contractor was closing Petitioner’s request because “[t]he CMS-
855R application is not necessary for the transaction in question. The provider
enrollment is already deactivated.” CMS Ex. 6. The CMS administrative contractor
appears to have made this statement because CMS had deactivated Dr. Fletcher’s
enrollment in the Medicare program on August 10, 2015, due to his death. CMS Ex. 18.

On January 25, 2016, the CMS administrative contractor deactivated Decatur’s Medicare
billing privileges because Decatur was not in compliance with Medicare requirements.
CMS Ex. 7. On March 7, 2016, Decatur filed a CMS-855B enrollment application to
reactivate its Medicare billing privileges and update Decatur’s ownership information,
including the removal of Dr. Fletcher as an owner. CMS Ex. 8 at 106, 110, 112, 133;
CMS Ex. 9. On April 18, 2016, the CMS administrative contractor approved Decatur’s
enrollment application and set March 7, 2016, as the effective date for the reactivation of
Decatur’s billing privileges. CMS Ex. 15 at 1.

In its timely filed reconsideration request, Decatur requested an earlier effective date of
January 25, 2016, which was the date of deactivation. Decatur asserted that it filed the
wrong application (CMS-855R) based on the instructions from the CMS administrative
contractor’s representative. Petitioner contended that it would have filed a CMS-855B if
the December 31, 2015 letter from the CMS administrative contractor stated that Decatur
needed to file that form instead of the CMS-855R. CMS Ex. 16.

On June 20, 2016, the CMS administrative contractor’s hearing officer issued an
unfavorable reconsidered determination in which the hearing officer denied that the CMS
administrative contractor provided incorrect instructions to Decatur. However, the
hearing officer admitted that in two separate phone calls, representatives of the CMS
administrative contractor told Decatur that it needed to file a CMS-855B and CMS-855R,
respectively. CMS Ex. 17.

Petitioner timely requested a hearing to dispute the reconsidered determination. On
August 15, 2016, I issued an Acknowledgment and Pre-Hearing Order (Order)
establishing a submission schedule for pre-hearing exchanges. In response, CMS filed a
motion for summary judgment with a brief in support of the motion (CMS Br.) and 18
exhibits. Petitioner submitted its brief (P. Br.) and five exhibits.
II. Decision on the Written Record

I admit all of the proposed exhibits into the record because neither party objected to any
of them. Order § 7; Civil Remedies Division Procedures (CRDP) § 14(e).

My Order advised the parties to submit written direct testimony for each witness and that
I would only hold an in-person hearing if the opposing party requested to cross-examine a
witness. Order f] 8-10; CRDP §§ 16(b), 19(b). Neither CMS nor Petitioner offered any
written direct testimony. Therefore, I issue this decision based on the written record.
Pre-Hearing Order § 10; CRDP § 19(d).

III. Issue

Whether CMS had a legitimate basis to assign March 7, 2016, as the effective date for
reactivation of Petitioner’s Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to hear and decide this case. 42 U.S.C. § 1395cc(j)(8); 42 C.F.R.
§§ 424.545(a), 498.3(b)(15), (b)(17), 498.5())(2).

V. Findings of Fact, Conclusions of Law, and Analysis
My findings of fact and conclusions of law are set forth in italics and bold font.

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. 42 U.S.C. §§ 1302, 1395cc(j). A “supplier” is “a physician or other
practitioner, a facility, or other entity (other than a provider of services) that furnishes
items or services” under the Medicare provisions of the Act. 42 U.S.C. § 1395x(d); see
also 42 U.S.C. § 1395x(u). As an IDTF, Petitioner is a supplier. 42 C.F.R. § 498.2
(definition of Supplier).

A supplier must enroll in the Medicare program to receive payment for covered Medicare
items or services. 42 C.F.R. § 424.505. The terms “Enroll/Enrollment means the process
that Medicare uses to establish eligibility to submit claims for Medicare covered services
and supplies.” 42 C.F.R. § 424.502. A supplier seeking billing privileges under the
Medicare program must “submit enrollment information on the applicable enrollment
application. Once the . . . supplier successfully completes the enrollment process . . .
CMS enrolls the . . . supplier into the Medicare program.” 42 C.F.R. § 424.510(a). CMS
then establishes an effective date for billing privileges. For IDTFs, the effective date is
determined under the provisions in 42 C.F.R. § 410.33(i).
Further, for IDTFs, “[c]hanges in ownership . . . must be reported to the Medicare fee-
for-service contractor on the Medicare enrollment application within 30 calendar days of
the change.” 42 C.F.R. §§ 410.33(g)(2), 424.516(b). A failure to timely report the
change in ownership may result in deactivation. 42 C.F.R. § 424.540(a)(2).' When CMS
deactivates a suppliers’ Medicare billing privileges, “[n]o payment may be made for
otherwise Medicare covered items or services furnished to a Medicare beneficiary.”

42 C.F.R. § 424.555(b). If CMS deactivates a supplier’s billing privileges for not
reporting a change to information supplied on the enrollment application, the supplier
may apply for reactivation of its Medicare billing privileges by completing a new
enrollment application or, if deemed appropriate, recertifying its enrollment information
that is on file. 42 C.F.R. § 424.540 (b)(1).

1. The CMS administrative contractor received an enrollment application (CMS-
855B) from Petitioner on March 7, 2016, which the CMS administrative
contractor ultimately approved.

The CMS administrative contractor received Petitioner’s CMS-855B enrollment
application on March 7, 2016. CMS Ex. 8 at 106; CMS Ex. 9. Petitioner submitted the
enrollment application to reactivate its Medicare billing privileges and update CMS on
individuals with an ownership interest in Petitioner. CMS Ex. 8 at 110, 112. After
receiving the enrollment application, the CMS administrative contractor requested
additional information from Petitioner, and Petitioner timely provided that information.
CMS Exs. 10-14. The CMS administrative contractor subsequently approved the
application and reactivated Petitioner’s Medicare billing privileges effective March 7,
2016. CMS Ex. 15.

2. The effective date for the reactivation of Petitioner’s Medicare billing privileges
is March 7, 2016.

The regulations provide the following rules regarding an IDTF’s effective date for
Medicare billing privileges:

Effective date of billing privileges. The filing date of the
Medicare enrollment application is the date that the Medicare
contractor receives a signed provider enrollment application

' This regulation cross-references 42 C.F.R. § 424.520(b) for the requirement to report
changes to information provided on an enrollment application. This cross-reference was
correct when the Secretary promulgated 42 C.F.R. Part 424 in 2006. 71 Fed. Reg.
20,754, 20,779 (Apr. 21, 2006). However, in 2008, the Secretary moved the regulation
related to reporting requirements to 42 C.F.R. § 424.516. Unfortunately, the Secretary
did not modify 42 C.F.R. § 424.540 to account for the new citation. 73 Fed. Reg. 69,725
69,939-941 (Nov. 19, 2008).
that it is able to process to approval. The effective date of
billing privileges for a newly enrolled IDTF is the later of the
following:

(1) The filing date of the Medicare enrollment application that
was subsequently approved by a Medicare fee-for-service
contractor; or

(2) The date the IDTF first started furnishing services at its
new practice location.

42 C.F.R. § 410.33(i). Consistent with these regulations, CMS published guidance to its
contractors that the effective date for the reactivation of Medicare billing privileges is the
date when the contractor receives the completed enrollment application that the
contractor ultimately processes to approval. Medicare Program Integrity Manual
(MPIM) § 15.27.1.2.

In the present case, the CMS administrative contractor correctly determined that
Petitioner’s effective date for its reactivated Medicare billing privileges is March 7, 2016,
because that is the date on which Petitioner filed the enrollment application that the CMS
administrative contractor approved.

Petitioner argues that the CMS administrative contractor provided Petitioner with
incorrect information resulting in Petitioner’s failure to file the correct CMS-855 form
and deactivation. Although Petitioner asserts that this argument goes to the effective date
of reactivation, Petitioner’s argument essentially questions the legitimacy of the
deactivation. P. Br. at 2-4. I cannot entertain this argument because I have no
jurisdiction to review the CMS administrative contractor’s decision to deactivate
Petitioner. I only have jurisdiction to review the Secretary’s “initial determinations,” and
CMS’s decision to deactivate billing privileges is not an initial determination. See

42 C.F.R. § 498.3. Instead, the Secretary provided suppliers with a right to further
review from CMS. 42 C.F.R. § 424.545(b).

I note that the CMS administrative contractor informed Petitioner of the death of one of
its owners and reminded Petitioner of its duty to provide CMS with updated information.
CMS Exs. 2, 3. The CMS administrative contractor did not need to provide this notice
because Petitioner was obligated to timely notify CMS of this on its own. The CMS
administrative contractor also provided Petitioner with 90 days to update its information
with CMS when the regulations only provide for 30 days. 42 C.F.R. § 410.33(g)(2).
Therefore, by the time Petitioner was deactivated, there had been a prolonged failure to
properly report the death of one of its owners.
Finally, in its reconsideration request, Petitioner stated that if it did not prevail in its
appeal, it “will be required to attempt to collect amounts due from patients.” CMS Ex. 16
at 3. However, the regulations state:

If any provider or supplier furnishes an otherwise Medicare
covered item or service for which payment may not be made
by reason of [deactivation], any expense incurred for such
otherwise Medicare covered item or service shall be the
responsibility of the provider or supplier. The provider or
supplier may also be criminally liable for pursuing payments
that may not be made by [deactivation], in accordance with
section 1128B(a)(3) of the Act.

42 C.F.R. § 424.555(c) (emphasis added).
V. Conclusion

1 affirm CMS’s determination that Petitioner’s effective date for the reactivation of its
Medicare billing privileges is March 7, 2016.

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Perry Coalmon, M.D.,
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-777
Decision No. CR4758

Date: December 9, 2016

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative
contractor, denied the application of Perry Coalmon, M.D. (Dr. Coalmon or Petitioner) to
enroll in the Medicare program because his practice location listed on the enrollment
application was not open when an inspector attempted two site visits. Dr. Coalmon
requested a hearing before an administrative law judge to dispute the denial. | affirm
CMS’s denial of Dr. Coalmon’s enrollment application because Dr. Coalmon’s practice
location was not yet operational when CMS attempted two site visits.!

I. Background and Procedural History

Dr. Coalmon is a physician who had been enrolled in the Medicare program; however, in
2004, the Department of Health and Human Services (HHS) excluded Dr. Coalmon from

' The Civil Remedies Division docketed this case with two petitioners: Dr. Coalmon and
Arunaobi Integrated Medical and Behavior Health, Inc. (Arunaobi). However, CMS
asserts that the hearing request only involved Dr. Coalmon’s denial of enrollment. CMS
Brief (Br.) at 1 n.1. Dr. Coalmon did not dispute this in his submission. I agree with
CMS and remove Arunaobi as a party to this case.
participation in federal health care programs and revoked Dr. Coalmon’s Medicare billing
privileges. CMS Exhibit (Ex.) 2 at 1-3. HHS based Dr. Coalmon’s exclusion on his
failure to repay a debt to the National Health Service Corps, which “was eventually
written off as uncollectible.” Petitioner (P.) Ex. at 1.2 Despite this, on February 10,
2014, HHS reinstated Dr. Coalmon’s eligibility to participate in federal health care
programs. CMS Ex. 4; see also 42 C.F.R. § 1001.1501(b).

On January 13, 2016, a CMS administrative contractor received an application from
Dr. Coalmon to re-enroll in the Medicare program as a physician. On the application,
Dr. Coalmon listed the following for his practice location: Arunaobi Integrated Health,
5325 W Burleigh St, Milwaukee, WI 53210. Dr. Coalmon also stated that this address
was effective as of February 1, 2016. CMS Ex. | at 1-3.

The CMS administrative contractor sent an inspector to conduct a site visit of

Dr. Coalmon’s practice location. The site inspector attempted site visits on March 10,
2016, at 1:30 p.m. and April 7, 2016, at 4:30 p.m.; however, on both occasions, the site
inspector did not gain access to the practice location because it was locked. When the
inspector called Dr. Coalmon’s phone number, he learned that it had been disconnected.
CMS Exs. 5, 6.

In its initial determination, the CMS administrative contractor denied Dr. Coalmon’s
enrollment application based on 42 C.F.R. § 424.530(a)(1) (failure to meet enrollment
requirements) and (a)(5) (not operational to furnish Medicare-covered items or services).
The initial determination stated that Dr. Coalmon could request reconsideration, but
enclosed a form for him to complete in order to submit a corrective action plan (CAP).
CMS Ex. 7.

Dr. Coalman signed and submitted the CAP request form. Along with the CAP form,

Dr. Coalman submitted a May 10, 2016 letter from Arunaobi’s owner stating that

Dr. Coalmon was going to provide services for Arunaobi and that Arunaobi “will be open
for business on May 18, 2016.” Arunaobi’s owner attached a deed, utility bill, and two
illegible documents. CMS Ex. 10.

In a June 3, 2016 reconsidered determination,° the CMS administrative contractor upheld
its previous denial of Dr. Coalmon’s enrollment application. CMS Ex. 11. The
reconsidered determination stated:

> Petitioner submitted only one exhibit, but did not mark it with a letter or number.
Therefore, I simply refer to it as P. Ex.

> CMS treated Petitioner’s CAP as a reconsideration request. CMS Br. at 5.
Per a review of previous application submissions, findings
concluded that two onsite visits were conducted at the
location of 5325 W Burleigh St, Milwaukee, WI 53210. Both
site visits failed to establish sufficient evidence of active
occupancy and/or professional services rendered by Arunaobi
Integrated Medical and Behavioral Health Inc. or Perry
Coalman MD.

CMS Ex. 11 at 2.

Petitioner requested a hearing to dispute the reconsidered determination. On August 4,
2016, I issued an Acknowledgment and Pre-Hearing Order (Order), which established a
submission schedule for pre-hearing exchanges. In response, CMS filed a motion for
summary judgment and prehearing brief along with 11 exhibits. Because Petitioner did
not submit his prehearing exchange, I issued an Order to Show Cause why I should not
dismiss Petitioner’s hearing request due to abandonment. Petitioner responded that he
tried to timely upload his prehearing exchange and did not intend to abandon his hearing
request. Petitioner also submitted a prehearing brief (P. Br.) along with one exhibit.

IL. Decision on the Written Record

Based on Petitioner’s response to the Order to Show Cause, I conclude that Petitioner did
not abandon his hearing request; therefore, I will adjudicate this matter.

I admit all of the proposed exhibits into the record because neither party objected to any
of them. Order 7; Civil Remedies Division Procedures (CRDP) § 14(e).

My Order advised the parties to submit written direct testimony for each of their
witnesses and that I would only hold an in-person hearing if a party requested to cross-
examine a witness. Order §{ 8-10; CRDP §§ 16(b), 19(b). Neither party submitted any
written direct testimony. Therefore, I issue this decision based on the written record.
Order ¥ 10; CRDP § 19(d).

III. Issue

Whether CMS had a legitimate basis to deny Petitioner’s Medicare enrollment
application.

IV. Jurisdiction

I have jurisdiction to hear and decide this case. 42 U.S.C. § 1395cc(j)(8); 42 C.F.R.
§§ 424.545(a), 498.3(b)(15), (17), 498.5()(2).
V. Findings of Fact, Conclusions of Law, and Analysis
My findings of fact and conclusions of law are set forth in italics and bold font.

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. 42 U.S.C. §§ 1302, 1395cc(j). A “supplier” is “a physician or other
practitioner, a facility, or other entity (other than a provider of services) that furnishes
items or services” under the Medicare provisions of the Act. 42 U.S.C. § 1395x(d); see
also 42 U.S.C. § 1395x(u).

1. On March 10, 2016, at 1:30 p.m. and April 7, 2016, at 4:30 p.m., an inspector,
acting on CMS’s behalf, was unable to conduct a site visit of the practice
location that Dr. Coalmon provided on his enrollment application because the
door to the facility was locked and no one was present.

Dr. Coalmon stated on his enrollment application that his practice location was 5325 W
Burleigh St, Milwaukee, WI 53210. CMS Ex. | at 3. An inspector from the CMS
administrative contractor attempted site visits of Dr. Coalmon’s practice location on
March 10, 2016, at 1:30 p.m. and April 7, 2016, at 4:30 p.m., but the inspector was
unable to gain access to the practice location. CMS Exs. 5, 6. As stated by the inspector
in her report:

I have been to the location 2 times. Both times, the doors
were locked with no one in sight. I called the number listed
for Dr. Perry Coalm[o]n in Milwaukee (listed at another
location) to see if I could gain access. The number says it is
disconnected. I have attached photos from both visits.

CMS Ex. 6 at 1. The inspector also indicated that: the practice location was not open for
business; the facility did not appear to have employees or staff; there were no signs of
customer activity; and the facility did not appear to be operational. CMS Ex. 6 at 1.

Consistent with the inspector’s observations, the owner of Arunaobi, the practice with
which Dr. Coalmon is affiliated, stated that the practice was going to be open starting
May 18, 2016. CMS Ex. 10 at 4. Therefore, I find that the practice location stated in
Dr. Coalmon’s enrollment application was not open March and April when the inspector
attempted two site visits.
2. CMS had a legitimate basis to deny Dr. Coalmon’s Medicare enrollment
application under 42 C.F.R. § 424.535(a)(1) and (5) because Dr. Coalmon did
not have an operational practice location.

Petitioner does not dispute that the practice location he listed on his enrollment
application was not open when the inspector attempted the site visits. Hearing Req.; see
also P. Br. at 2; CMS Ex. 3 at 2 (CMS administrative contractor notes a telephone call
with Petitioner on March 14, 2016, in which Petitioner stated “we haven’t even
opened.”). Rather, Petitioner asserts that the CMS administrative contractor’s
determination to deny his enrollment application conflicts with CMS’s determination to
accept Arunaobi’s application for the same practice location even though Arunaobi was
not yet open. P. Br. at 2. Petitioner questions why CMS even conducted a site visit and
disputes that CMS is required under 42 C.F.R. § 424.518(b)(2)(ii), (c)(2)(i), and
(c)(3)(ii)(A) to conduct a site visit for any previously excluded provider or supplier
before enrolling that provider or supplier in the Medicare program again. In particular,
Petitioner disputes that he defaulted on any debt owed to HHS and that his exclusion was
warranted. P. Br. at 2-3.

I have no jurisdiction to consider whether HHS properly excluded Petitioner in 2004.
Further, it is unnecessary for me to make this determination in order to decide this case.

As a supplier, Petitioner must enroll in the Medicare program to receive payment for
covered Medicare items or services. 42 C.F.R. § 424.505. The term “Enroll/Enrollment”
means the process that Medicare uses to establish eligibility to submit claims for
Medicare-covered items and services.” 42 C.F.R. § 424.502. A provider or supplier
seeking billing privileges under the Medicare program “must submit enrollment
information on the applicable enrollment application.” 42 C.F.R. § 510(a)(1). A supplier
whose Medicare billing privileges were revoked also must submit an enrollment
application if he wants to re-enroll in the Medicare program. 42 C.F.R. § 424.535(d).
“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)(1).

However, it is an enrollment requirement that an enrolling provider or supplier be
operational, and CMS may deny an enrollment application if a supplier fails to be in
compliance with an enrollment requirement. 42 C.F.R. §§ 424.510(d)(8), 424.530(a)(1).
Further, CMS may deny a supplier’s enrollment application if, upon an on-site review,
CMS determines that the provider is not operational to provide Medicare-covered items
or services. 42 C.F.R. § 424.530(a)(5)(i).

The term “operational” means:

the provider or supplier has a qualified physical practice
location, is open to the public for the purpose of providing
health care related services, is prepared to submit valid
Medicare claims, and is properly staffed, equipped, and
stocked (as applicable, based on the type of facility or
organization, provider or supplier specialty, or the services or
items being rendered), to furnish these items or services.

42 C.F.R. § 424.502 (definition of Operational). In order “[t]o be ‘operational’ in
accordance with the definition in section 424.502, a provider, among other things, must
have a ‘qualified physical practice location’ that is ‘open to the public for the purpose of
providing health care related services.” Viora Home Health, Inc., DAB No. 2690 at 7
(2016). A provider or supplier’s “qualified physical practice location” is the provider or
supplier’s address that is on file with CMS at the time of a site visit. Care Pro Home
Health, Inc., DAB No. 2723 at 5-6 (2016) (footnote omitted).

In the present case, it is undisputed that the inspector attempted to conduct a site visit, on
two different days, of the practice location Petitioner provided on his enrollment
application form, but that the inspector was unable to complete the site visit because
Petitioner’s practice location was locked and no one was present to answer the door.
These facts are sufficient for me to conclude that Petitioner was not open to the public,
and, therefore, not operational. In making this conclusion, I am mindful “that the proper
inquiry is to assess the [provider’s] operational status at the time of the onsite review
because the intent of the applicable regulations ‘is that a supplier must maintain, and be
able to demonstrate, continued compliance with the requirements for receiving Medicare
billing privileges.’” Viora, DAB No. 2690 at 7 n.7 (emphasis in original), quoting A to Z
DME, LLC, DAB No. 2303 at 7 (2010). Petitioner’s failure to be open to the public on
either of the days that the inspector attempted site visits prevented the inspector from
determining whether Petitioner was compliant with enrollment requirements.

Further, Petitioner’s argument, mentioned above, that the CMS administrative contractor
improperly included a site visit as part of the evaluation of Petitioner’s enrollment
application is incorrect. When a supplier applies to enroll in the Medicare program, the
supplier is subject to a site visit at CMS’s discretion to determine that it is operational and
meets enrollment requirements. 42 C.F.R. § 424.517. Petitioner, in his enrollment
application, not only asserted that the effective date for his practice location was February
1, 2016, but that he had first seen a Medicare patient on that date. CMS Ex. | at 3. As it
turns out, this information was false because the practice with which Petitioner indicated
he was working, Arunaobi, was not open to provide services until May 18, 2016. CMS
Ex. 10 at 4. Petitioner does not dispute this and concedes that “[t]he clinic was not
occupied or open for business.” Hearing Req.
Therefore, because Petitioner’s practice location, as identified in his enrollment
application, was not open and staffed in March and April 2016, I conclude that CMS had
a legal basis to deny Petitioner ‘s enrollment application under 42 C.F.R. § 424.530(a)(1)
and (a)(5) because Petitioner was not operational at his practice location.

VI. Conclusion

1 affirm CMS’s determination to deny Dr. Coalmon’s enrollment in the Medicare
program.

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Dora O. Uwudia
(O.L. File No. H-15-43574-9),

Petitioner,
v.
The Inspector General.
Docket No. C-16-551
Decision No. CR4756

Date: December 8, 2016

DECISION

The Inspector General (IG) of the United States Department of Health and Human
Services excluded Dora O. Uwudia (Ms. Uwudia or Petitioner) for five years from
participation in Medicare, Medicaid, and all other federal health care programs based on
her criminal conviction of an offense related to the delivery of an item or service under
Medicare or a state health care program. Petitioner sought review of the exclusion. For
the reasons stated below, I affirm the IG’s determination to exclude Petitioner for five
years. 42 U.S.C. § 1320a-7(a)(1), (c)(3)(B).

I. Background

By letter dated April 29, 2016, the IG notified Ms. Uwudia that she was being excluded,
effective 20 days from the date on the letter, from participation in Medicare, Medicaid,
and all federal health care programs under 42 U.S.C. § 1320a-7(a)(1) for the minimum
statutory period of five years. The IG stated that he was taking this action based on Ms.
Uwudia’s conviction in the District Court of Oklahoma County, State of Oklahoma, of a
criminal offense related to the delivery of an item or service under Medicare or a state
health care program, including the performance of management or administrative
services relating to the delivery of items or services, under any such program. IG Exhibit
(Ex.) 1.

On May 12, 2016, Petitioner timely requested a hearing before an administrative law
judge. Subsequently, Petitioner filed additional documents. Petitioner argued that she
was not convicted of a criminal offense and disputed that her conviction was program-
related. Petitioner argued further that her conviction was obtained through a “forced
plea.”

On July 13, 2016, I held a pre-hearing telephone conference, the substance of which is
summarized in my July 22, 2016 Order and Schedule for Filing Briefs and Documentary
Evidence (Order). See 42 C.F.R. § 1005.8.

In accordance with the Order, the IG filed a brief (IG Br.) and seven exhibits (IG Exs. 1-
7). Petitioner filed a response brief (P. Br.) with seven exhibits (P. Exs. 1-7). The IG
waived his right to file a reply brief.

II. Decision on the Record

Neither party objected to any of the proposed exhibits; therefore, I admit them all into the
record. Order § 3; 42 C.F.R. § 1005.8(c); Civil Remedies Division Procedures § 14(e).

At the prehearing conference, I ordered the parties to complete and submit short-form
briefs with their prehearing exchanges. Order § 1. I provided a copy of Petitioner’s
short-form brief with my Order. Order § 1. The short-form brief requires, in relevant
part, that each party indicate whether a hearing is necessary and whether the party would
like to provide any testimony at the hearing. If a party answers those questions in the
affirmative, the party must provide the names of the proposed witnesses, a description of
the testimony expected from the proposed witnesses, and an explanation as to how the
proposed testimony will not duplicate information contained in the documentary exhibits.
I also expressly included these requirements in my Order. Order §[ 4.

The IG indicated on its short-form brief that a hearing was unnecessary. IG Br. at 5.

In its brief, the IG addressed the possibility that Petitioner might request an in-person
earing to prove that her guilty plea was the result of a conspiracy, and stated that such an
argument would be an impermissible collateral attack on her conviction and irrelevant to
the legal sufficiency of Petitioner’s exclusion. IG Br. at 6.

Petitioner indicated on her short-form brief that a hearing was necessary and that there
was testimony she wanted to offer at the hearing. P. Br. at 3. She listed four witnesses
whose testimony she wished to offer: the lawyer who represented her during her criminal
proceedings, and three individuals purported to be assistant attorneys general with the
State of Oklahoma. Instead of providing a description of each witness’ proposed
testimony as instructed by the short-form brief, Petitioner merely cited several of her
exhibits (P. Exs. 1-5), which, by her description, all appear to pertain to the state criminal
proceedings. P. Br. at 3. I note that P. Ex. | is an undated written statement titled
“Response to Complaint,” and in it, Petitioner sets forth the circumstances surrounding
her criminal conviction, claiming that she did not commit Medicaid fraud and that her
lawyer and the prosecutors conspired to force her to plead guilty to the charges. P. Ex. 1.
I note further that P. Exs. 2-5, as described by Petitioner in her short-form brief, do not
correspond to the actual exhibits she filed as P. Exs. 2-5 in DAB E-File. Regardless of
this discrepancy, it is evident that the testimony of Petitioner’s proposed witnesses would
relate to her main objective of undercutting her criminal conviction and attempting to
prove her plea resulted from a conspiracy against her.

The purported testimony of Petitioner’s witnesses would constitute a collateral attack on
her criminal conviction, and is thus inadmissible. The applicable regulation explicitly
precludes any collateral attack on a predicate conviction:

When the exclusion is based on the existence of a criminal
conviction . . . where the facts were adjudicated and a final
decision was made, the basis for the underlying conviction

. is not reviewable and the individual . . . may not
collaterally attack it either on substantive or procedural
grounds in this appeal.

42 C.F.R. § 1001.2007(d). Therefore, I must exclude Petitioner’s witnesses as irrelevant
and immaterial (see 42 C.F.R. § 1005.17(c)) and deny Petitioner’s request for an in-
person hearing. Instead, because there are no relevant witnesses, I decide this case on the
basis of the written record.

III. Issue

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

IV. Jurisdiction

I have jurisdiction to adjudicate this case. 42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2.

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

My findings of fact and conclusions of law are set forth in italics and bold font.
The IG indicated that 42 U.S.C. § 1320a-7(a)(1) was the basis for Ms. Uwudia’s
mandatory exclusion. IG Ex. 1. The statute provides:

(a) Mandatory exclusion.

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

(1) Conviction of program-related crimes

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

Thus, the elements the IG must prove to sustain Ms. Uwudia’s exclusion pursuant to
section 1320a-7(a)(1) in this case are: (1) Petitioner was convicted of a criminal offense,
and (2) Petitioner’s offense was related to the delivery of an item or service under
Medicare or a State health care program.

A, Petitioner pled guilty to seven counts of Medicaid fraud, and the District
Court of Oklahoma County accepted the plea, deferred sentencing for 10
years, and ordered Petitioner to pay the following amounts to the Oklahoma
Attorney General’s Office, Medicaid Fraud Control Unit: $91,000 in
restitution, a $91,000 fine, and $30,000 in investigation costs.

Ms. Uwudia is a licensed counselor who owned a company that contracted with the
Oklahoma Health Care Authority to provide counseling services to Medicaid recipients.
IG Exs. 6, 7. The Oklahoma Health Care Authority is the state agency in Oklahoma
responsible for administering Medicaid funds to providers of health care services. IG
Exs. 6, 7. On June 27, 2012, the Attorney General of Oklahoma filed an Information
with the District Court of Oklahoma County, State of Oklahoma, charging Ms. Uwudia
with three counts of Medicaid fraud, in violation of 56 O.S. § 1005(A)(1). Under Count
1, the Information alleged that Ms. Uwudia willfully and knowingly submitted false
claims to the Oklahoma Medicaid Program, through its fiscal agent, “for payment in the
aggregate amount of more than $2,500.00 for Medicaid services not provided to” three
individuals. Under Counts 2 and 3, the criminal conduct alleged was similar as under
Count 1, except that the false claims submitted to the Oklahoma Medicaid Program for
payment were “in the aggregate amount of less than $2,500.00 for Medicaid services not
provided to” two individuals. IG Ex. 4.
On May 14, 2013, the Attorney General of Oklahoma filed an Amended Information in
the state court, charging Petitioner with four counts of Medicaid fraud, in violation of 56
O.S. § 1005(A)(1), (A)(6), and (A)(7). Under Counts 1 and 3, the Information alleged
that Ms. Uwudia willfully and knowingly submitted false claims to the Oklahoma
Medicaid Program, through its fiscal agent “for payment in the aggregate amount of more
than $2,500.00 for Medicaid services not provided to” seven individuals, in violation of
56 O.S. § 1005(A)(1). Under Count 2, the Information alleged that Ms. Uwudia willfully
and knowingly failed to maintain records for seventeen individuals in connection with her
submission of claims or receipt of payment from the Oklahoma Medicaid program, in
violation of 56 O.S. § 1005(A)(7). Under Count 4, the Information alleged that Ms.
Uwudia “willfully and knowingly solicit[ed] a pecuniary benefit in connection with
services claimed to be payable by the Oklahoma Medicaid Program, to wit: paying
utility bills and/or rent” for five individuals, in violation of 56 O.S. § 1005(A)(6). IG

Ex. 5.

On October 20, 2015, Ms. Uwudia signed a plea agreement in which she agreed to plead
guilty to the three counts of Medicaid fraud charged in the Information filed on June 27,
2012, and the four counts of Medicaid fraud charged in the Amended Information filed
on May 14, 2013. IG Ex. 2 at 1-9. The plea agreement stated that Ms. Uwudia pled
guilty of her own free will and without any coercion or compulsion of any kind. I.G. Ex.
2 at 6. Ms. Uwudia agreed to the following statement of the factual basis for her guilty
plea:

On or about October, 2010 to May 2011; I committed
Medicaid fraud by overbilling Oklahoma Medicaid by an
amount greater than $2500 in Counts 1-3.

On or about August 20, 2010 to March 14, 2012, I committed
Medicaid fraud by overbilling Oklahoma Medicaid by an
amount greater than $2500 in Counts 1-4 all occurring [sic] in
Okla. Co.

1.G. Ex. 2 at 7. As part of the plea agreement, Ms. Uwudia agreed to pay the following to
the Oklahoma Attorney General’s Office, Medicaid Fraud Control Unit: $91,000 in
restitution, a $91,000 fine, and $30,000 in investigation costs. Ms. Uwudia also agreed to
pay a $180 assessment. IG Ex. 2 at 5. On October 20, 2015, the state court accepted Ms.
Uwudia’s guilty plea, adjudged her guilty, and sentenced her to a 10-year deferred
sentence. IG Ex. 2 at 9-11.
B. Petitioner was convicted of a criminal offense under 42 U.S.C. § 1320a-
7(a)(1).

Under 42 U.S.C. § 1320a-7(a)(1), Petitioner must be “convicted of a criminal offense”
before she can be excluded. An individual is considered “convicted” when a judgment of
conviction has been entered by a federal, state, or local court, or a plea of guilty or no
contest has been accepted in a federal, state, or local court. 42 U.S.C. § 1320a-7(i)(1),
(3). As previously discussed, Petitioner pled guilty to violating 56 O.S. §§ 1005(A)(1),
(A)(6), and (A)(7), and the state court accepted her plea and issued a judgment of
conviction. I.G. Exs. 2,3. Based on these facts, I conclude that, for purposes of
exclusion, Ms. Uwudia was “convicted” of a criminal offense.

Petitioner nevertheless argues that she has not been convicted of a criminal offense.
Petitioner contends, among other things, that her attorney and the prosecutors engaged in
a conspiracy against her; her plea agreement was a product of coercion; and she did not
receive all documentation relating to her plea. To further prove these theories, Petitioner
also offered the testimony of witnesses. However, Petitioner’s claims are contradicted by
her own responses to the questions contained in the plea agreement. In response to the
question “Have you been forced, abused, mistreated, or promised anything by anyone to
have you enter your plea(s)?” Petitioner circled “No.” In response to the question “Do
you plead guilty of your own free will and without any coercion or compulsion of any
kind?” Petitioner circled “Yes.” Petitioner acknowledged further that her attorney had
completed the form and “[they] have gone over the form and I understand its contents
and agree with the answers.” IG Ex. 2 at 6.

In any event, all of Petitioner’s arguments amount to an impermissible collateral attack
on her guilty plea and the resulting conviction. As I discussed above, the regulations
explicitly prohibit Petitioner from re-litigating her conviction. 42 C.F.R. § 1001.2007(d);
see also Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994). The circumstances alleged
by Petitioner surrounding her plea agreement and conviction are not reviewable in these
proceedings. The fact of her conviction is established by the court records, and I
conclude that Petitioner was convicted of an offense within the meaning of 42 U.S.C.

§ 1320a-7(a)(1).

C. Petitioner’s criminal conviction for Medicaid fraud is an offense related to

the delivery of an item or service under a state health care program (i.e.,
Medicaid).

An individual must be excluded from participation in any federal health care program if
the individual was convicted under federal or state law of a criminal offense related to the
delivery of an item or service under Medicare or a state health care program. 42 U.S.C.

§ 1320a-7(a)(1); 42 C.F.R § 1001.101(a). A state health care program includes a state’s
Medicaid program. 42 C.F.R. § 1001.2 (definition of State health care program).
It is significant that the term “related to” simply means that there must be a nexus or
common sense connection. See Quayum v. U.S. Dep’t of Health & Human Servs.,

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

Although Petitioner argues that her conviction was not program-related, the record shows
that she was convicted of seven counts of Medicaid fraud. Five of the seven counts of
which Petitioner was convicted alleged that Petitioner willfully and knowingly submitted
false claims to the Oklahoma Medicaid program for payment for Medicaid services that
had not been provided. The other counts alleged that Petitioner failed to maintain proper
documentation in connection with her submission of claims or receipt of payment from
Medicaid, and that Petitioner improperly solicited a pecuniary benefit by paying certain
utility bills or rents that are payable by Medicaid. IG Exs. 4, 5. As part of her plea
agreement, Petitioner admitted that she “committed Medicaid fraud by overbilling
Oklahoma Medicaid by an amount greater than $2500.” IG Ex. 2 at 7.

Thus, based on the factual recitations in the Information and Amended Information, there
can be no dispute that Petitioner’s criminal conduct, involving filing false claims with the
Oklahoma Medicaid program, was “related to” the delivery of an item or service under a
state health care program. Jack W. Greene, DAB No. 1078 (1989), aff’d, Greene v.
Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990); Michael Travers, M.D., DAB No. 1237
(1991), aff'd, Travers v. Sullivan, 791 F. Supp. 1471, 1481 (E.D. Wash. 1992), aff'd,
Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994).

Further, the fact that the state court ordered Petitioner to pay $91,000 in restitution to the
Oklahoma Attorney General’s Office, Medicaid Fraud Control Unit is evidence of a
nexus between Petitioner’s criminal conduct and the Oklahoma Medicaid program.
Where an individual is convicted of a crime, “proof that any sentence based on that
conviction included the payment of restitution to a protected program creates a rebuttable
presumption of a nexus or common-sense connection between the conviction and the
delivery of an item or service under [that] program.” Johnnelle Johnson Bing, DAB
CR1938 at 6 (2009) (citing Alexander Nepomuceno Jamias, DAB CR1480 (2006)), aff'd,
Johnnelle Johnson Bing, DAB No. 2251 (2009). Similar to the present case, the
petitioner in the Bing case had been ordered to pay restitution to a state Medicaid
program. Jd. The restitution Petitioner was ordered to pay Oklahoma’s Medicaid
program strongly supports the conclusion that there is a nexus between Petitioner’s
criminal conduct and the delivery of items or services involving the Oklahoma Medicaid
program.

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

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

VI. Conclusion

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

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Elizabeth A. Conroy, CRNA,
(PTAN(s): 165913DRP, 165913 YHMP, 651666, 65166AXN,
651666Q58, 651666COR, 651666NUG, 651666QCA),
(NPI: 1346204096)
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-653
Decision No. CR4753

Date: December 8, 2016

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to
revoke the Medicare billing privileges of Petitioner, Elizabeth A. Conroy, CRNA.

I. Background

Petitioner requested a hearing to challenge CMS’s determination to revoke her Medicare
billing privileges. CMS moved for summary judgment. With its motion CMS filed
proposed exhibits identified as CMS Ex. 1-CMS Ex. 6. Petitioner opposed the motion
and cross-moved for summary judgment. She filed exhibits identified as P. Ex. 1-P. Ex.
7. Neither CMS nor Petitioner offered the written direct testimony of any witnesses.
CMS objected to P. Ex. 2-P. Ex. 7 on the ground that they are irrelevant. I agree that
these exhibits are of no probative value. They relate to equitable arguments that have no
bearing on the outcome of this case and that I have no authority to consider. However, I
find it unnecessary to strike them. I receive CMS Ex. 1-CMS Ex. 6 and P. Ex. 1-P. Ex. 7
into the record.

Although the material facts of this case are undisputed, there is no need for me to decide
whether the criteria for summary judgment are met inasmuch as neither CMS nor
Petitioner offered witness testimony. I decide the case based on the written record.

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

The issue is whether the regulations authorize CMS to revoke Petitioner’s Medicare
billing privileges.

B. Findings of Fact and Conclusions of Law

CMS asserts two regulatory bases for revoking Petitioner’s billing privileges. First, it
contends that it is authorized to do so based on the authority conferred by 42 C.F.R.

§ 424.535(a)(3) (re-codified in October 2015, as 42 C.F.R. § 424.535(a)(3)(i)). This
section authorizes CMS to revoke a supplier’s Medicare billing privileges if that
individual was convicted within the previous 10 years of a felony that CMS determines to
be detrimental to the best interests of the Medicare program and its beneficiaries.
Specifically, such felonies include felonies committed against persons, such as murder,
rape, assault, and other similar crimes. Second, CMS asserts that it may revoke
Petitioner’s billing privileges pursuant to 42 C.F.R. § 424.535(a)(9). This section, in
substance, authorizes CMS to revoke a supplier’s billing privileges for failure to report an
“adverse legal action” to CMS within 30 days as is required by 42 C.F.R.

§ 424.516(d)(1)(ii) and (iii).

The facts of this case establish that Petitioner was convicted of a felony offense under
New Jersey law. Her conviction resulted from an incident in which Petitioner,
intoxicated at the time, threatened her minor child with a bow and arrow and threw
various objects at him. CMS Ex. 1 at 9-21. She was charged with assault. She pled
guilty to, and was convicted on October 21, 2011, of endangering the welfare of a child, a
felony under New Jersey law. Jd. at 11. There is no dispute that Petitioner failed to
report this conviction to CMS.

These facts unquestionably establish grounds for CMS to revoke Petitioner’s Medicare
billing privileges. First, she was convicted of a felony against a person in the nature of an
assault as is described at 42 C.F.R. § 424.535(a)(3)(i)(A) (re-codified in October 2015, as

42 C.F.R. § 424.535(a)(3)(i)(A)). Although the felony of which she was convicted is not
“assault” on its face, the very essence of Petitioner’s crime was her assault against her
minor child. Threatening her child with a bow and arrow and throwing objects at him are
assault, whether or not that term is used specifically in the law that provides the legal
basis for her conviction. Furthermore, that crime is in the nature of an assault and
therefore, it falls within the authority conferred by the regulation.

The regulation does not predicate the authority to revoke billing privileges to a narrow
and limited set of felony convictions. It is written broadly to include any felonies that are
crimes against persons “such as” murder, rape, and assault. That broad language sweeps
in not only crimes that are labeled specifically as murder, rape, or assault, but also all
other crimes against persons that involve violence or the potential for violence against
those persons. Here, Petitioner unquestionably committed crimes of violence against her
son that fall within the regulation’s reach.

Petitioner argues that the original charges against her of assault were dismissed and, thus,
she cannot be characterized as having committed an assault against her son. P. Brief
(Br.) at 4. She argues also that the child endangerment statute under which she was
convicted draws a nexus between endangerment and abuse or neglect of a child. P. Br. at
5-6. She contends that New Jersey’s definitions of “abuse” and “neglect” are extremely
broad and that these definitions actually encompass acts or omissions that would not
comprise harm against a child. See N.J.S.A. 9:6-1. From this, Petitioner contends that
one may not infer from her conviction that she was convicted either of assault or a crime
that is in the nature of assault. P. Br. at 6.

These arguments ignore the undisputed facts of this case. Petitioner’s conviction results
directly from allegations that she, intoxicated, pointed a weapon at her son and threw
objects at him. That is assaultive behavior by any definition. Even if Petitioner wasn’t
convicted of felony assault, her conviction under New Jersey law is for behavior that is in
the nature of an assault. That is enough to authorize revocation of her billing privileges.

Petitioner argues also that the definitions contained in the New Jersey law are
inconsistent in some respects and that prosecution under that law might be invalid
because of those inconsistent definitions. P. Br. at 8. Be that as it may, Petitioner’s
argument does not gainsay the fact that she was convicted of violating that law. She
seems to be arguing now that her conviction might not be meaningful because of flaws in
the New Jersey statute. That is not an argument that I have authority to hear and decide.
What matters here is only that Petitioner was convicted of child endangerment under
New Jersey law, a felony, and that the acts that underlie her conviction consist of
assaultive behavior.

Petitioner argues that her failure to report her conviction to CMS is moot if, in fact, no
basis exists to revoke her billing privileges pursuant to 42 C.F.R. § 424.535(a)(3)(i)(A).
That argument is incorrect as a matter of law. Sections 424.516(d)(1)(ii) and (iii) require
a supplier to report any adverse legal action to CMS. The reporting requirement is not
limited to those felony convictions that constitute crimes for which revocation may be
imposed pursuant to 42 C.F.R. § 424.535(a)(3)(i)(A). Petitioner was required to report
her conviction even if that conviction was not for an offense that fell within the felony
against persons provision of the regulations. Her failure to do so thus is an independent
basis for revoking her billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Brian P. Rajca, M.D.,
(NPI: 1083876197 / PTAN: IN311Z),
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-787
Decision No. CR4752
Date: December 7, 2016
DECISION
The effective date of Medicare enrollment and billing privileges of Petitioner, Brian P.
Rajca, M.D., is January 11, 2016, with the 30-day period for retrospective billing
beginning December 12, 2015.
I. Background and Procedural History
First Coast Service Options, Inc. (First Coast), a Medicare administrative contractor,
notified Petitioner’s employer by letter dated April 21, 2016, that Petitioner’s Medicare

enrollment application and his reassignment of benefits application were approved with
an “effective date” of December 12, 2015.' Centers for Medicare & Medicaid Services

' First Coast refers to Petitioner’s effective date as December 12, 2015. CMS Ex. 1 at
40. However, for reasons discussed hereafter, January 11, 2016, the date Petitioner’s
application was received by First Coast, is Petitioner’s effective date, and December 12,
2015 is the first date of the 30-day period allowed for retrospective billing. 42 C.F.R.

§ 424.521(a)(1) (citations are to the 2015 revision of the Code of Federal Regulations
(C.F.R.), unless otherwise indicated).
(CMS) Exhibit (Ex.) 1 at 40. On May 17, 2016, Petitioner requested reconsideration of
the initial determination. Petitioner claimed that he submitted his Medicare application
on July 27, 2015, and it was lost by First Coast. CMS Ex. 1 at 44. First Coast notified
Petitioner by letter dated June 3, 2016, that his request for reconsideration was denied.
CMS Ex. | at 1-3. The hearing officer on reconsideration determined that First Coast
checked its system for applications received between July 27, 2015 and August 5, 2015,
and no application for Petitioner was received until the one received on January 11, 2016.
The hearing officer also incorrectly characterized December 12, 2015, as the effective
date of Petitioner’s enrollment. Based on the hearing officer’s findings, the effective date
of enrollment was January 11, 2016, the date First Coast received the application, and
December 12, 2015 was the first day of the 30-day period for retrospective billing. 42
C.F.R. §§ 424.520(d)(1), 424.521(a)(1). CMS Ex. | at 1-2.

Petitioner filed a request for hearing before an administrative law judge (ALJ) on August
2, 2016 (RFH). On August 8, 2016, the case was assigned to me for hearing and decision
and an Acknowledgment and Prehearing Order (Prehearing Order) was issued at my
direction.

CMS filed a motion for summary judgment and prehearing brief with CMS Exhibits 1
and 2 on September 7, 2016. On October 7, 2016, Petitioner requested that I add a
document to the record for consideration. Although Petitioner did not mark that
document as an exhibit, I treat that document as if marked as Petitioner’s Exhibit (P. Ex.)
1. On October 24, 2016, CMS filed its reply and its objection to P. Ex. 1.

Petitioner has not objected to my consideration of CMS Exs. 1 and 2 and they are
admitted. Petitioner asserts that P. Ex. | is a record of an incoming call to Petitioner on
October 7, 2015, purportedly from “Medicare Provider Enrollment.” CMS does not
object to the authenticity of the document but does object that it is not relevant and is new
evidence offered for the first time before me without a showing of good cause as required
by 42 C.F.R. § 498.56(e). I may only admit and consider documents that are relevant and
material. 42 C.F.R. §§ 498.60(b), 498.66(d)(1). Evidence is relevant if it has any
tendency to make the existence of a fact of consequence more or less probable than
without the evidence. Fed. R. Evid. 401. I conclude that Petitioner has not established
that P. Ex. 1 is relevant. Petitioner has not offered a declaration, affidavit, or other
evidence to show that the incoming telephone number on the document had any
connection to “Medicare Provider Enrollment.” Even if I accept for purposes of
summary judgment that P. Ex. 1 shows that Petitioner received a call from “Medicare
Provider Enrollment,” Petitioner has presented no evidence by anyone involved in that
call of the substance of the call. Therefore, it is not possible to determine that P. Ex. 1 is
relevant to the fact issue before me, that is, on what date did First Coast actually receive
an application from Petitioner.

IL. 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 such as First Coast. Act

§ 1842(a) (42 U.S.C. § 1395u(a)).

Qualified physician services, subject to some limitations, are covered by Medicare Part B
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. “Physicians” 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.

Petitioner, a doctor, is a physician practitioner. The effective date of enrollment in
Medicare of a physician, nonphysician practitioner, and physician and nonphysician

> Petitioner is a “supplier” under the Act and the regulations. A “supplier” furnishes
services under Medicare and the term supplier applies to physicians or other practitioners
and facilities that are not included within the definition of the phrase “provider of
services.” Act § 1861(d) (42 U.S.C. § 1395x(d)). A “provider of services,” commonly
shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing
facilities, comprehensive outpatient rehabilitation facilities, home health agencies,
hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act.
Act § 1861(u) (42 U.S.C. § 1395x(u)). The distinction between providers and suppliers is
important because they are treated differently under the Act for some purposes.

practitioner organizations is governed by 42 C.F.R. § 424.520(d). The effective date of
enrollment for a physician or nonphysician practitioner may only be the later of two
dates: the date when the physician filed an application for enrollment that was
subsequently approved by a Medicare contractor charged with reviewing the application
on behalf of CMS; or the date when the physician first began providing services at a new
practice location. 42 C.F.R. § 424.520(d). The date of filing of the enrollment
application is the date on which the Medicare contractor receives a signed enrollment
application that the 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);Alexander C. Gatzimos, M.D.,J.D., LLC,
d/b/a Michiana Adult Medical Specialists, DAB No. 2730, at 1 (2016). An enrolled
physician or nonphysician practitioner may retrospectively bill Medicare for services
provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of
enrollment, if circumstances precluded enrollment before the services were provided.
Retrospective billing for up to 90 days prior to the effective date of enrollment is
permitted only in case of a Presidentially-declared disaster pursuant to 42 U.S.C.

§§ 5121-5206. 42 C.F.R. § 424.521. The latter provision has no application in this case.

The Secretary has issued regulations that establish the right to a hearing and judicial
review of certain enrollment determinations. Act § 1866(j) (42 U.S.C. § 1395cc(j)).
Pursuant to section 1866(h)(1) and (j)(8), a provider or supplier whose enrollment
application or renewal application is denied is entitled to an administrative hearing and
judicial review. Pursuant to 42 C.F.R. § 498.3(b)(15), a provider’s effective date is an
initial determination that is subject to administrative review by an ALJ. Appeal and
review rights are specified by 42 C.F.R. § 498.5.

B. Issues
The issues in this case are:
Whether or not summary judgment is appropriate; and
Whether Petitioner’s effective date for Medicare enrollment and billing
privileges is January 11, 2016, with retrospective billing permitted
beginning on December 12, 2015.
C. Findings of Fact, Conclusions of Law, and Analysis
My conclusions of law are set forth in bold followed by my findings of fact and analysis.

1. Summary judgment is appropriate.

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.
pt. 498. The regulations do not establish a summary judgment procedure or recognize
such a procedure. However, the Departmental Appeals Board (the Board) has long
accepted that summary judgment is an acceptable procedural device in cases adjudicated
pursuant to 42 C.F.R. pt. 498. See, e.g., Illinois Knights Templar Home, DAB No. 2274,
at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med.
Ctr., DAB No. 1628, at 3 (1997). The Board also has recognized that the Federal Rules
of Civil Procedure do not apply in administrative adjudications such as this, but the
Board has accepted that Federal Rule of Civil Procedure 56 and related cases provide
useful guidance for determining whether summary judgment is appropriate. Furthermore,
a summary judgment procedure was adopted as a matter of judicial economy within my
authority to regulate the course of proceedings and made available to the parties in the
litigation of this case by my Prehearing Order dated August 8, 2016, paragraph II.G. The
parties were given notice by the Prehearing Order that summary judgment is an available
procedural device and that the law as it has developed related to Federal Rule of Civil
Procedure 56 will be applied. The parties were advised that a fact alleged and not
specifically denied, may be accepted as true for purposes of ruling upon a motion for
summary judgment. The parties were also advised that on summary judgment evidence
is considered admissible and true unless a specific objection is made. Prehearing Order
qILG.

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,
rawing 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
lenials in its pleadings or briefs but must furnish evidence of a dispute concerning a
material fact, i.e., a fact that would affect the outcome of the case if proven. Senior
Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (and cases cited therein);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in
leciding a summary judgment motion differs from resolving a case after a hearing. On
summary judgment, the ALJ does not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the evidence, as would be done when
finding facts after a hearing on the record. Rather, on summary judgment, the ALJ
construes the evidence in a light most favorable to the non-movant and avoids deciding
which version of the facts is more likely true. Holy Cross Vill. at Notre Dame, Inc., DAB
No. 2291, at 5 (2009). The Board also has recognized that on summary judgment it is
appropriate for the ALJ to consider whether a rational trier of fact could find that the

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

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

2. Pursuant to 42 C.F.R. § 424.520(d), Petitioner’s effective date of
Medicare enrollment is January 11, 2016, the date First Coast received
the Medicare enrollment application that was processed to approval.

3. Pursuant to 42 C.F.R. § 424.521(a)(1), Petitioner was authorized to
bill Medicare for services provided to Medicare-eligible beneficiaries
up to 30 days prior to his effective date of enrollment, that is, beginning
on December 12, 2105.

a. Facts

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

Petitioner, a physician, asserts that he should be authorized to bill Medicare as of July 1,
2015, rather than December 12, 2015, as determined by the hearing officer on
reconsideration. Petitioner asserts that applications were submitted to First Coast on July
27, 2015 and October 7, 2015. RFH. | accept as true for purposes of summary judgment
that the applications, copies of which were filed with the request for hearing, were sent to
First Coast as alleged by Petitioner. However, Petitioner has offered no documents such
as certified or registered mail receipts or receipts from a courier service to show receipt
by First Coast. Petitioner does not assert that any applications were filed on-line using
the Medicare Provider Enrollment, Chain, and Ownership System (PECOS).

Petitioner admits that his representative checked on the status of his July 2015 application
by phone on October 7, 2015. The representative was informed that no application could
be found. Petitioner asserts that he resubmitted his Forms CMS-855I (Medicare

enrollment application) and CMS-855R (reassignment of Medicare claims) on October 9,

2015. Petitioner’s representative subsequently called First Coast in January 2016, and
was informed that there was no application for Petitioner on file. RFH.

There is no dispute that First Coast received enrollment and reassignment applications for
Petitioner on January 11, 2016, that were subsequently processed to approval. CMS Ex.
1 at 2; CMS Ex. 2; RFH.

b. Analysis

The regulations controlling the effective date of enrollment of a physician and the
application of those regulations are clear. The effective date of enrollment in Medicare
of a physician, nonphysician practitioner, and physician and nonphysician practitioner
organizations is governed by 42 C.F.R. § 424.520(d). The effective date of enrollment
for a physician or nonphysician practitioner may only be the later of two dates: (1) the
late 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 (2) the date when the physician first began providing services at a new practice
location. 42 C.F.R. § 424.520(d). The date of filing of the enrollment application is the
late on which the Medicare contractor receives a signed enrollment application that the
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); Gatzimos, DAB No. 2730, at 1. The burden is on
Petitioner, not the government, to demonstrate that CMS received the requisite
enrollment forms and that Petitioner complied with all relevant policies. 42 C.F.R.

§ 424.545(c). An enrolled physician or nonphysician practitioner may retrospectively bill
Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to
the effective date of enrollment, if circumstances precluded enrollment before the
services were provided. 42 C.F.R. § 424.521(a)(1).

Petitioner requests that his effective date of enrollment be changed to July 1, 2015. RFH.
Although I accept as true for summary judgment that Petitioner began providing services
on July 13, 2015 (CMS Ex. 1 at 59), the regulation provides that it is the Jater of the date
of filing a Medicare enrollment application or the date services were first provided that
controls. 42 C.F.R. § 424.520(d). The undisputed evidence shows that Petitioner
submitted Medicare enrollment and reassignment applications and that they were
received by First Coast on January 11, 2016, and subsequently approved. Applying the
regulations to the undisputed evidence, I conclude that Petitioner’s effective date of
enrollment is January 11, 2016, which is the date First Coast received applications that it
processed to approval. January 11, 2016 is clearly later than July 13, 2015, the date
Petitioner began providing services. The first day of the 30-day period of retrospective
billing privileges is December 12, 2015, under 42 C.F.R. § 424.521(a)(1).

I accept as true for purposes of summary judgment that Petitioner submitted applications
in July and October 2015. However, Petitioner has pointed to no evidence that First
Coast either received or processed those earlier applications. I decline to infer from the
fact that Petitioner mailed applications that they were actually received by First Coast.
Petitioner offers no legal authority that requires such an inference. Therefore, Petitioner
has failed to show that there is a genuine dispute as to the material facts of whether or not
First Coast received and processed the earlier applications.

Petitioner argues that he submitted a corrective action plan that seems to have been
ignored. Petitioner also argues it is unfair for him to be penalized because the July and
October 2015 applications were lost in the First Coast mailroom. Petitioner takes no
responsibility for failing to use the PECOS system which would have acknowledged
receipt of the applications or for failing to obtain certified or registered mail receipts or
other evidence of receipt by First Coast. RFH. Petitioner cites no legal authority that
shows he is entitled to any relief under the law based on his arguments, even if accepted
as true for summary judgment. Even if Petitioner’s arguments are construed as requests
for equitable relief, I do not have the authority to grant equitable relief in the form of an
earlier effective date of enrollment. US Ultrasound, DAB No. 2302, at 8 (2010),
(“[nJeither the ALJ nor the Board is authorized to provide equitable relief by reimbursing
or enrolling a supplier who does not meet statutory or regulatory requirements.”).
Petitioner points to no authority by which I may grant him relief from the applicable
regulatory requirements. 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.”).

HI. Conclusion
For the foregoing reasons, the effective date of Petitioner’s Medicare enrollment and

billing privileges is January 11, 2016, with a 30-day period for retrospective billing
beginning on December 12, 2015.

/s/
Keith W. Sickendick
Administrative Law Judge


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

Goldenwood Services, LLC
(NPI: 1952706384, PTAN: 410608)

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-862
Decision No. CR4751
Date: December 7, 2016
DECISION

I sustain the determination of the Medicare contractor, as affirmed upon reconsideration
and ratified by the Centers for Medicare & Medicaid Services (CMS) to revoke the
Medicare billing privileges of Petitioner, Goldenwood Services, LLC.!
I. Background
Petitioner filed a hearing request in order to challenge the Medicare contractor’s
determination to revoke Petitioner’s Medicare billing privileges, as affirmed upon
reconsideration and accepted by CMS. CMS moved for summary judgment, filing a brief
plus 11 supporting exhibits identified as CMS Ex. 1- CMS Ex. 11. Petitioner filed a

written statement in opposition to CMS’s motion. I receive CMS’s exhibits into the
record.

+ Petitioner’s sole owner and proprietor is Jeffrey Gold, Ph.D. CMS Ex. | at 4, 6, 15. I
refer to Petitioner throughout this decision as “it” because it was enrolled in its corporate
form and because the revocation applies to the entity.
I find it unnecessary to decide whether the criteria for summary judgment are met here.
Neither CMS nor Petitioner offered the testimony of any witnesses. There is no need for
an in-person hearing. Consequently, I base my decision on the parties’ written
submissions.

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

The issue is whether undisputed material facts establish a basis for CMS to revoke
Petitioner’s Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

CMS alleges that there are two grounds supporting the determination to revoke
Petitioner’s billing privileges. First, CMS asserts that Petitioner was not operational
because it failed to satisfy Medicare enrollment requirements, thereby justifying
revocation of its billing privileges pursuant to 42 C.F.R. § 424.535(a)(5)(i). Second,
CMS contends that it may revoke Petitioner’s billing privileges pursuant to 42 C.F.R.§
424.535(a)(9) because Petitioner did not timely report to a Medicare contractor a change
in its practice location as is required by 42 C.F.R. § 424.516(d)(1)(iii).

The undisputed facts plainly establish that Petitioner failed to comply with Medicare
enrollment requirements by asserting a post office box as its practice location.
Revocation of Petitioner’s billing privileges may be imposed pursuant to 42 C.F.R. §
424.535(a)(5)(i). Moreover, Petitioner failed to report a change in its practice location as
is required by regulation. Therefore, CMS and its contractor may revoke Petitioner’s
Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).

There is no dispute as to the following material facts. On March 22, 2015, Petitioner
filed a Medicare enrollment application with a Medicare contractor in which it stated that
its enrollment location was 2865 South Eagle Road, Suite 335 Newtown, PA 18940
(South Eagle Road). CMS Ex. 1 at 9, 17. The inspector found that the address was a
fictitious practice location. It was not an office but was, in fact, a post office box at a
commercial establishment known as “The Parcel Place.” CMS Ex. 5 at 1. Petitioner
misrepresented the South Eagle Road address as its practice location despite a specific
instruction in the Medicare enrollment application form telling it not to report a post
office box as its mailing address. CMS Ex. | at 16-17. That form also made it clear that,
if Petitioner practiced at an assisted living facility or facilities, or if it operated in more
than one practice location, it had to list the addresses of its practice locations on the
application form. Id.

Subsequently, and in response to a request from the contractor, Petitioner filed additional
documentation in which it averred that it first saw a patient at the South Eagle Road
mailing address on March 22, 2015. CMS Ex. 3 at 1. That also was a false
representation by Petitioner as to its practice location inasmuch as the South Eagle Road
address was a post office box. It was not until May 2016 — after the contractor had
revoked Petitioner’s billing privileges — that Petitioner acknowledged that it treated
patients at addresses other than the South Eagle Road address. CMS Ex. 7 at 1. It did not
submit to the contractor documentation of its actual practice locations until June 2016.
CMS Ex. 8; CMS Ex. 9 at 1.

A participant in Medicare is non-operational and may have its billing privileges revoked
if, among other things, it fails to satisfy all Medicare participation requirements. 42
C.F.R. § 424.535(a)(5)(ii). Those requirements include the requirement that an applicant
for enrollment submit complete, accurate, and truthful responses to information requested
in the enrollment application. 42 C.F.R. § 424.510(d)(2)(i). Petitioner plainly failed to
comply with this requirement and consequently, CMS may revoke its billing privileges.

The undisputed facts establish that Petitioner misrepresented its practice location(s) not
once, but more than once, by telling the contractor that its practice location was at South
Eagle Road, a post office box. It did so not only in its initial application, but also in
subsequent correspondence with the contractor. It did so in the face of specific written
instructions telling it not to list a post office box as its practice location and telling it also
that it had to list each location where it provided items or services to beneficiaries.
Indeed, I infer that Petitioner knew that it was misrepresenting its practice location to the
contractor from the fact that it originally listed its practice location as a “suite” rather
than as a post office box. CMS Ex. | at 6, 17. Petitioner’s use of the word “suite”
strongly suggests that it was attempting to mislead the contractor into believing that the
South Eagle Road address was an actual office rather than a mail drop.

A participating provider or supplier must report within 30 days any change in practice
location. 42 C.F.R. § 424.516(d)(1)(iii). Failure to do so may be grounds for revocation
of billing privileges. 42 C.F.R. § 424.535(a)(9). The undisputed facts prove
unequivocally that Petitioner failed to comply with regulatory requirements in not
reporting its actual practice locations within 30 days of establishing them. Consequently,
the contractor and CMS may revoke Petitioner’s billing privileges.

I note that in this case, it is not just that Petitioner failed to report its practice locations to
the contractor as is required by regulations. In fact, Petitioner actually misrepresented its
practice locations by averring more than once that it was treating patients at an address
that is a post office box.
Petitioner does not deny any of the facts as I have stated them. Nor does it disagree that
CMS has the authority, pursuant to regulations, to revoke its billing privileges. Petitioner
contends, however, that CMS is acting unduly harshly for what Petitioner characterizes as
a simple and good faith error. It asserts that if it is guilty of anything, it is guilty only of
“an enrollment form screw up and nothing more than that.” Petitioner’s statement at 2.

That argument, effectively, challenges CMS’s exercise of discretion to revoke
Petitioner’s billing privileges. That is not an argument that I have the authority to hear
and decide. Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009); aff'd, Ahmed v.
Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010). Similarly, Petitioner contends that a two-
year revocation of its billing privileges is unreasonable in light of the facts. That is also a
challenge to CMS’s exercise of discretion that I am without authority to hear and decide.

Petitioner also seems to be making an equitable argument that, considerations of
discretion aside, it is unfair to revoke its billing privileges based on what it contends to be
a mere “screw up.” I do not have the authority to grant equitable relief in a case such as
this one. U.S. Ultrasound, DAB No. 2302 at 8 (2010).

I would not find that equities preponderate in Petitioner’s favor even if I had the authority
to consider its equitable arguments. The facts belie Petitioner’s assertion that the false
information that it provided in its enrollment application consisted of mere error on its
part. As I find above, it misrepresented its mailing address as a “‘suite” rather than a post
office box, almost certainly to convince the contractor that the address it gave consisted
of an actual office. It subsequently perpetrated that misrepresentation by telling the
contractor that it saw patients at the Eagle Road address, an obvious falsehood.

/s/
Steven T. Kessel
Administrative Law Judge


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

Integrative Rehabilitation Associates, LLC
(NPI: 1366831984, PTAN: 397967)

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-842
Decision No. CR4750
Date: December 5, 2016
DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services
(CMS) sustaining the determination of a Medicare contractor to revoke the Medicare
billing privileges of Petitioner, Integrative Rehabilitation Associates, LLC.!
I. Background
Petitioner filed a hearing request in order to challenge a Medicare contractor’s
determination to revoke Petitioner’s Medicare billing privileges, as affirmed upon
reconsideration and accepted by CMS. CMS moved for summary judgment, filing a brief
plus eight supporting exhibits that it identified as CMS Ex. 1-CMS Ex. 8. Petitioner filed

a brief in opposition and an exhibit identified as P. Ex. 1. I receive the parties’ exhibits
into the record.

' Petitioner does business as a practice entity. The practice entity constitutes the services
of Melissa Rusli, D.O. Throughout this decision I refer to “Petitioner” and “it” to
describe Doctor Rusli’s practice entity.
IL. Issue, Findings of Fact and Conclusions of Law
A. Issue

The issue is whether undisputed material facts establish a basis for CMS to revoke
Petitioner’s Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

CMS alleges that there are two grounds supporting the determination to revoke
Petitioner’s billing privileges. First, CMS contends that revocation may be predicated on
the fact that Petitioner was not “operational” as that term is used in 42 C.F.R.

§ 424.535(a)(5)(i). Second, CMS contends that it may revoke Petitioner’s billing
privileges pursuant to 42 C.F.R. § 424.535(a)(9) because Petitioner did not timely report
to a Medicare contractor a change in its practice location as is required by 42 C.F.R.

§ 424.516(d)(1)(iii).

I find it to be unnecessary that I decide whether the determination to revoke may be based
on Petitioner’s failure to be operational. The undisputed facts plainly establish that
Petitioner failed to report a change in its practice location as is required by regulation.
Therefore, CMS and its contractor may revoke Petitioner’s Medicare billing privileges
pursuant to 42 C.F.R. § 424.535(a)(9).

These are the undisputed facts. Petitioner filed a Medicare enrollment form that a
Medicare contractor received on February 6, 2015. CMS Ex. 2. In that form Petitioner
stated that its practice location was 120 East Main Street, Suite 109, Ramsey, NJ 07446.
Petitioner averred that it first began treating patients at that address on January 1, 2015.
Id. at 15-16. Petitioner sent additional documentation to the contractor on March 1, 2015,
in which it again listed its business address as 120 East Main Street, Suite 109, Ramsey,
NJ 07446. CMS Ex. 3 at 4.

On February 4, 2016, a representative of the contractor attempted to conduct an on-site
visit of Petitioner’s facility. The representative went to 120 East Main Street, the address
previously submitted by Petitioner as its practice location, and found that Petitioner was
not doing business at that location. CMS Ex. 5. The business entity at that address was a
UPS store. Jd. Subsequently, Petitioner averred that it was doing business at addresses in
Clifton, NJ, and Paterson, NJ. CMS Ex. 7.

A participating provider or supplier must report within 30 days any change in practice
location. 42 C.F.R. § 424.516(d)(1)(iii). Failure to do so may be grounds for revocation
of billing privileges. 42 C.F.R. § 424.535(a)(9). The undisputed facts prove
unequivocally that Petitioner failed to comply with regulatory requirements in not
reporting its actual practice locations within 30 days of establishing them. Consequently,
the contractor and CMS may revoke Petitioner’s billing privileges.

I note that in this case, it is not just that Petitioner failed to report its practice locations to
the contractor as is required by regulations. In fact, Petitioner actually misrepresented its
practice locations by averring twice that it was treating patients at an address that is, in
fact, a UPS store.

Petitioner admits that it failed to provide accurate information to the contractor as to its
practice locations and failed to report its true practice locations within 30 days, as is
required by regulation. P. Ex. 1. In her affidavit, Dr. Rusli asserts that this failure was an
inadvertent error, an error resulting from her misplaced reliance on a third party, who
filed forms with the contractor on her behalf. That may be so, but it is no defense to
Petitioner’s failure to comply with regulatory requirements. The regulations place the
burden of compliance on the participating suppliers and providers. If they rely on other
individuals to report on their behalf they must assure that the information that these
individuals provide is accurate. By her own admission, Petitioner failed to do that.

Petitioner’s assertion that its reporting errors were inadvertent boils down to an equitable
argument. In effect, Petitioner contends that it would be unfair to revoke its billing
privileges based on what was, at bottom, an innocent and inadvertent error. That is an
equitable argument that I have no authority to consider. Moreover, Petitioner’s failure to
report accurately its business address is not a harmless error when one considers that
CMS must oversee the performance of many thousands of suppliers and providers. CMS
and its contractors simply do not have the resources to research the true business
locations of these individuals and entities. That is why the regulations vest the
responsibility to report accurately in the providers and suppliers and it is why there are
penalties for failure to do so.

/s/
Steven T. Kessel
Administrative Law Judge