Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Karen Armento, CRNA, ARNP, )

) Date: September 25, 2007
Petitioner, )

) Docket No. C-06-237
-Vv.- ) Decision No. CR1658
)
Centers for Medicare & Medicaid )
Services. )
)
DECISION

I affirm the determination of the Medicare Part B Hearing Officer (Hearing Officer) to
uphold the denial by the Medicare Part B Carrier, National Heritage Insurance Company
(Carrier), of Petitioner, Karen Armento’s application for a Medicare provider number
(provider number or billing number). I find that the Hearing Officer correctly determined
that Petitioner does not meet the regulatory requirements for obtaining a provider number
as a nurse practitioner.

I. Applicable Authority

Section 1866(j)(1) of the Social Security Act (Act), as amended by section 936 of the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No.
108-173, authorized the Secretary of Health and Human Services (Secretary) to establish
a process for the enrollment in the Medicare Part B program of providers of services and
suppliers. Section 1866(j)(2) of the Act gives providers and suppliers appeal rights for
certain determinations involving enrollment, using the procedures that apply under
section 1866(h)(1)(A) of the Act. These procedures are set out at 42 C.F.R. Part 498, et.
seq., and provide for hearings by Administrative Law Judges (ALJs) and review of ALJ
decisions by the Departmental Appeals Board (Board).
2

In provider appeals under 42 C.F.R. Part 498, the Board has determined that CMS must
make a prima facie case that an entity has failed to comply substantially with federal
requirements. See MediSource Corporation, DAB No. 2011 (2006). “Prima facie”
means that the evidence is “[s]ufficient to establish a fact or raise a presumption unless
disproved or rebutted.” Rosalyn L. Olian, DAB CR1472, at 2 (2006); see also Hillman
Rehabilitation Center, DAB No. 1611, at 8 (1997), aff'd, Hillman Rehabilitation Ctr. v.
U.S. Dep’t. of Health and Human Services, No. 98-3789 (GEB) (D.N.J. May 13, 1999).
To prevail, the entity must overcome CMS’s showing by a preponderance of the
evidence. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004), aff'd,
Batavia Nursing and Convalescent Center v. Thompson, 129 Fed. Appx.187 (6" Cir.
2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Center, DAB
No. 1665 (1998).

Medicare Part B is a supplementary medical insurance program for the aged and disabled.
Act, sections 1831-1848. Section 1861(s) of the Act defines medical and other health
services that are eligible for Medicare reimbursement by a non-physician practitioner or
an allied health professional. Under section 1842(b)(18)(C) of the Act, the types of
“practitioners” include the following: a physician assistant, nurse practitioner, clinical
nurse specialist, certified registered nurse anesthetist, certified nurse-midwife, clinical
social worker, clinical psychologist, registered dietician, and nutrition professional.

Federal regulations define the credentialing requirements and criteria for providers and
provider eligible services at 42 C.F.R. §§ 410.69-410.78. The regulation at 42 C.F.R.

§ 410.75(b) sets forth the qualifications required to be enrolled in the Medicare program
as a nurse practitioner. For Medicare Part B coverage for his or her services, a nurse
practitioner must:

(1)G) Be a registered professional nurse who is authorized by the State in which
the services are furnished to practice as a nurse practitioner in accordance with
State law; and

(ii) Be certified as a nurse practitioner by a recognized national certifying body
that has established standards for nurse practitioners; or

(2) Be a registered professional nurse who is authorized by the State in which the
services are furnished to practice as a nurse practitioner in accordance with State
law and have been granted a Medicare billing number as a nurse practitioner by
December 31, 2000; or

(3) Be a nurse practitioner who on or after January 1, 2001, applies for a Medicare
billing number for the first time and meets the standards for nurse practitioners in
paragraphs (b)(1)(i) and (b)(1)(ii) of this section; or
3

(4) Be a nurse practitioner who on or after January 1, 2003, applies for a Medicare
billing number for the first time and possesses a master’s degree in nursing and
meets the standards for nurse practitioners in paragraphs (b)(1)(i) and (b)(1)(ii) of
this section.

42 C.F.R. § 410.75(b).
If. Background

By letter dated April 5, 2005, the Carrier notified Petitioner that her application' for a
Medicare provider number had been approved.” CMS Exhibit (CMS Ex.) 1, at 1,3. By
letter dated June 7, 2005, the Carrier notified Petitioner that her provider number would
e revoked 15 days from the date of the letter because she “[did] not meet CMS
regulatory requirements for a Nurse Practitioner.” CMS Ex. 2.

Petitioner appealed the decision to the Carrier, and a Hearing Officer conducted a hearing
y telephone on November 11, 2005. The Hearing Officer subsequently issued a decision
(Hearing Officer decision) on November 15, 2005 upholding the Carrier’s revocation of
Petitioner’s Medicare provider number. Specifically, the Hearing Officer noted that
Petitioner is licensed in New Hampshire as a nurse practitioner. However, the Hearing
Officer determined that based on the information provided in the appeal, Petitioner did
not meet the educational requirements nor national certification requirements for a nurse
practitioner set forth in 42 C.F.R. § 410.75. The Hearing Officer also found that
Petitioner first enrolled in the Medicare program as a nurse practitioner in March 2005,
and, as a result, Petitioner did not meet the qualifications for the “grandfathering”
provision of 42 C.F.R. § 410.75(b)(2). Because Petitioner lacked the requisite
educational and national certification requirements, the Hearing Officer found that the
Carrier’s revocation of Petitioner’s provider number had been correct. The Hearing
Officer advised Petitioner of her appeal rights and that she could appeal the decision to an
ALJ.

' Petitioner had applied for a Medicare provider number as a nurse practitioner on
or about March 2005. Petitioner had already received a provider number as a certified
registered nurse anesthetist (CRNA) in December 1993. Petitioner Exhibit (P. Ex.) 1.

> A revised letter dated April 11, 2005, notified Petitioner of the same. CMS Ex.
1, at 1.
4

By letter dated January 12, 2006 (hearing request), Petitioner, acting pro se, filed a timely
appeal of the Hearing Officer’s decision. The case was assigned to me for a hearing and
decision. I held a telephone prehearing conference with the parties on April 25, 2006. I
informed Petitioner that she had a right to retain an attorney to represent her; however,
Petitioner elected to proceed pro se. I set a schedule for the parties to file submissions
and directed that a copy of all submissions be served on the other party. See Order, dated
May 3, 2006.

CMS has submitted its brief in support of the Hearing Officer’s decision (CMS Br.).

CMS has also submitted exhibits marked CMS Exs. 1-6. Petitioner has submitted her
response brief in opposition (P. Br.) to CMS’s brief. Petitioner also submitted exhibits,
marked KA Exs. 1-7. In order to conform with the Civil Remedies Division procedures
that accompanied the March 3, 2006 acknowledgment letter to Petitioner, I have re-
marked Petitioner’s exhibits as P. Exs. 1-7. Prior to the telephone prehearing conference,
Petitioner submitted a brief in support of her position along with exhibits she marked as
A-L. I labeled this submission and the attached exhibits as Petitioner’s Introductory Brief
(P. Intro. Br.), and re-marked the exhibits as P. Intro. Exs. 1-12. Neither party objected to
the admission of any of the exhibits. Therefore, I admit CMS Exs. 1-6, P. Exs. 1-7, and

P. Intro. Exs. 1-12 into the record.

By Order dated October 5, 2006, I gave CMS two weeks from the date of the Order to file
a Reply to Petitioner’s response brief. CMS did not submit a reply and the record was
closed.

Ill. Issue, and findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner satisfied the necessary requirements to obtain
a Medicare provider number as a nurse practitioner, as set out at 42 C.F.R. § 410.75(b).

B. Findings of fact and conclusions of law

Petitioner has not satisfied the nurse practitioner requirements set
forth at 42 C.F.R. § 410.75(b).

Petitioner must show that she has met all statutory and regulatory requirements in order to
qualify for a Medicare provider number as a nurse practitioner.’ Petitioner contends that

> Petitioner’s Introductory Brief and CMS’s Brief make reference to Petitioner’s
pain management services that she provided as a CRNA and the denial of claims by the
5

she meets the requirements for Medicare Part B coverage of a nurse practitioner’s
services because she qualifies under 42 C.F.R. § 410.75(b)(1). P. Br. at 3. According to
Petitioner, she has been authorized by the State of New Hampshire to practice as an
advanced registered nurse practitioner and has been certified as a nurse practitioner by the
American Association of Nurse Anesthetists (AANA). Jd. at 4-5; P. Exs. 3, 4. Petitioner
maintains that because she was licensed by New Hampshire in 1994 and received
certification by the AANA, a recognized national certifying body, in 1984, she has
fulfilled the regulatory requirements for Medicare coverage of her services as a nurse
practitioner pursuant to subsections (i) and (ii) of 42 C.F.R. § 410.75(b)(1). P. Br. at 3-5.

Petitioner asserts that she is not a first time applicant for a Medicare number because she
was granted a number in 1993 and has been recognized in the State of New Hampshire as
a nurse practitioner since 1994. P. Br. at 3-4. Petitioner indicated that she billed
Medicare for pain management services she provided to patients in a hospital setting. Jd.
Petitioner contends that because she was licensed by New Hampshire in 1994 and granted
a Medicare billing number in 1993, she has fulfilled the “grandfathering” regulatory
requirements for Medicare coverage of her services as a nurse practitioner pursuant to 42
C.F.R § 410.75(b)(2). Id. at 3-5.

Petitioner further maintains that because she received a Medicare provider number as a
CRNA, which Petitioner asserts is a specialty of advanced registered nurse practitioners
under state law, that provider number should qualify her for Medicare Part B payment as
a nurse practitioner, as well as a CRNA. P. Br. at 5-6. Furthermore, Petitioner asserts
that she is licensed by the State of New Hampshire to perform all services advanced
registered nurse practitioners are permitted to perform, plus additional services that may
be performed by CRNAs. P. Intro. Br. at 1.

Based on the record before me, Petitioner does not meet any of the regulatory
requirements under 42 C.F.R. § 410.75(b) and therefore is not entitled to a Medicare
provider number as a nurse practitioner.

Pursuant to 42 C.F.R. § 410.75(b), one of four conditions must be met in order for
Petitioner to qualify for a Medicare provider number as a nurse practitioner. To satisfy
the first subsection of 42 C.F.R. § 410.75(b), a nurse practitioner must be certified by a
recognized national certifying body that has established standards for nurse practitioners.

Carrier for these services under Petitioner’s CRNA Medicare provider number. I will not
address this issue because the sole issue that I am authorized to decide in this case is
whether Petitioner qualifies for a Medicare provider number as a nurse practitioner under
the explicit requirements of the regulation at 42 C.F.R. § 410.75(b). See 42 C.F.R.

§ 498.5(a).
6

42 C.F.R. § 410.75(b)(1)(ii). According to Petitioner, she is a member of the AANA. P.
Br. at 5; P. Ex. 4; CMS Ex. 6, at 2. The AANA does not qualify as an organization that
has established standards for nurse practitioners. It is a professional association for
CRNAs. As CMS contends, “the requirement for certification by a national certifying
body [is] separate for CRNAs from that for nurse practitioners.” CMS Br. at 8.

The Medicare Carriers Manual § 2158 lists the following as national organizations that
establish standards for nurse practitioners: American Academy of Nurse Practitioners
(AANP); American Nurses Credentialing Center (ANCC); National Certification
Corporation for Obstetric, Gynecologic and Neonatal Nursing Specialties; National
Certification Board of Pediatric Nurse Practitioners & Nurses; Oncology Nurses
Certification Corporation (ONCC); and Critical Care Certification Corporation. CMS Ex.
5, at 3, 4. Petitioner has not listed any of the organizations nor an acronym used by one
of these organizations on her curriculum vitae. CMS Ex. 6; P. Intro. Ex. 1. Because
Petitioner has not shown that she is certified by a recognized national nursing practitioner
certifying body, she does not fall under those recognized as nurse practitioners pursuant
to 42 C.F.R. § 410.75(b)(1).

A nurse practitioner’s services may be covered under Medicare Part B if she meets the
requirements listed in 42 C.F.R. § 410.75(b)(2). That section of the regulation provides
that a licensed nurse practitioner that has received her Medicare billing number as a nurse
practitioner by December 31, 2000, can receive reimbursement from Medicare for her
services as a nurse practitioner. Petitioner has not received a Medicare billing number as
a nurse practitioner; thus, she does not meet the requirements under 42 C.F.R.

§ 410.75(b)(2).

Petitioner argues that she received a Medicare billing number as early as 1993 and that
this billing number would allow her to receive Medicare reimbursement pursuant to

42 C.F.R. § 410.75(b)(2). CMS counters that “there is no provision [in 42 C.F.R.

§ 410.75(b)(2)] for an individual to qualify for the period on or before December 31,
2000 with a Medicare billing number fora CRNA.” CMS Br. at 6. One of the primary
reasons this section of the regulation, 42 C.F.R. § 410.75(b)(2), was promulgated was so
that nurse practitioners who had received a Medicare billing number before January 1,
2001, would not be subject to the newly included requirements of national certification
and the educational requirement of possessing a master’s degree. See 64 Fed. Reg. at
59,412 (Nov. 2, 1999). Essentially, CMS did not want to disqualify many nurse
practitioners, who were otherwise qualified, from receiving Medicare reimbursement as a
result of final promulgation of 42 C.F.R. § 410.75(b)(2). CMS is correct in that there is
no provision in the regulations that allows a Medicare billing number for a CRNA to be
used as a substitute for a billing number for nurse practitioners. The regulation does not
provide me with the authority to substitute or allow a CRNA billing number to satisfy the
nurse practitioner billing number requirement in section 42 C.F.R. § 410.75(b)(2).

7

Although Petitioner was a licensed nurse practitioner in the State of New Hampshire as
early as 1994, she had not received a Medicare billing number as a nurse practitioner by
December 31, 2000. Thus, her services do not qualify for Medicare reimbursement under
42 C.F.R. § 410.75(b)(2).

Because Petitioner never received a Medicare billing number as a nurse practitioner, she
is, in fact, applying for a Medicare billing number as a nurse practitioner for the first time
and is subject to the requirements in 42 C.F.R. § 410.75(b)(4). Under 42 C.F.R.

§ 410.75(b)(4), an applicant for Medicare coverage as a nurse practitioner must possess a
master’s degree in nursing and meet subsections (b)(1)(i) and (b)(1)(ii) of 42 C.F.R.

§ 410.75. As discussed previously, Petitioner does not meet the standard at 42 C.F.R.

§ 410.75(b)(1)(ii) because she has not been certified by a recognized national certifying
body that has established standards for nurse practitioners. 42 C.F.R. § 410.75(b)(1)(ii).
In addition, Petitioner does not meet the requirements of 42 C.F.R. § 410.75(b)(4)
because Petitioner does not possess a master’s degree in nursing. P. Intro. Ex. 1; CMS
Ex. 6.

IV. Conclusion

Based on my review of all of the evidence and arguments before me, I conclude that
Petitioner does not qualify for Medicare reimbursement of services as a nurse practitioner
because she is not certified by a recognized national certifying body for nurse
practitioners and she does not possess the requisite educational degree. Petitioner thus
fails to satisfy the statutory and regulatory requirements. Accordingly, I find that
Petitioner is not entitled to obtain a Medicare provider number as a nurse practitioner. I
therefore affirm the Hearing Officer’s determination to uphold the denial by the Carrier of
Petitioner’s application for a Medicare provider number.

/s/
Alfonso J. Montano
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Jerilyn Mitchell, Date: September 24, 2007

Petitioner,

Docket No. C-07-292
Decision No. CR1657

-Vi-

Centers for Medicare & Medicaid
Services.

DECISION

This matter is before me on the Centers for Medicare & Medicaid Services’ (CMS’s)
Motion for Summary Affirmance. I find that the Medicare Part B Hearing Officer
(Hearing Officer) correctly determined that Petitioner Jerilyn Mitchell did not meet all
requirements to be considered a clinical nurse specialist, in that she did not possess a
master’s degree in a “defined clinical area of nursing.” For that reason I affirm the
February 7, 2007 determination of the Hearing Officer to uphold the denial of Petitioner’s
application for a Medicare billing number by the Medicare Part B contractor, Wisconsin
Physicians Service (WPS).

1. Procedural History

Petitioner is a health-care professional who has, at all relevant times, practiced her
profession in the State of Minnesota. She is certified as a Registered Nurse by the
Minnesota Board of Nursing, as a Clinical Specialist in Adult Psychiatric and Mental
Health Nursing by the American Nurses Credentialing Center (ANCC), and is licensed by
the State of Minnesota’s Board of Psychology. She earned her Bachelor of Arts magna
cum laude from a respected Minnesota university in 1981, and her Master of Science
degree from that institution in 1983. Her curriculum vitae demonstrates a high level of
professional education and experience extended over several decades.
5

On October 2, 2006, Petitioner submitted an application for a Medicare billing number as
a clinical nurse specialist. Assignment of a Medicare billing number would allow
Petitioner to bill Medicare directly for, and receive direct payment for, services eligible
for payment by the Medicare program. The application was sent to the regional Medicare
Part B contractor, WPS.

WPS asked for more information in clarification of Petitioner’s application, and part of
WPS’s query focused on the details of Petitioner’s course of study toward her Master of
Science degree. When it had received and reviewed the additional information, WPS
notified Petitioner on December 12, 2006, that her application was denied, and explained
that the controlling regulation “requires that clinical nurse specialists have a Master’s
degree in a defined clinical area of nursing. Because your Master’s degree is in
counseling, you do not meet this requirement.”

Petitioner timely sought reconsideration of WPS’s decision, but on February 7, 2007, the
WPS Medicare Part B Hearing Officer affirmed the denial of her application. The
rationale of the Hearing Officer’s decision was substantially identical to that relied on by
WPS: “The academic record [of Petitioner’s Master of Science program] further
indicates your course studies were in counseling. A Masters degree in counseling is not a
Masters degree in nursing. In the absence of a Masters Degree in an area of nursing, you
have not met the qualifications as Clinical Nurse Specialist as identified in 42 CFR
410.76.”

Petitioner perfected this appeal by her February 14, 2007 pro se Request for Hearing. |
convened a prehearing conference with the parties by telephone on Wednesday, March

28, 2007, pursuant to 42 C.F.R. § 498.47. A summary of that conference appears in my
Order of March 30, 2007. It should be noted that although Petitioner filed her Request

for Hearing pro se, she was represented by counsel during the conference and has been

represented by that counsel at all subsequent stages of this litigation.

The evidentiary record on which I decide this case consists of 22 exhibits. The parties
were able to agree on the submission of Joint Exhibits 1-10 (Jt. Exs. 1-10), and they are
admitted as designated. CMS proffered 12 additional exhibits, CMS Exhibits 1-12 (CMS
Exs. 1-12), to which Petitioner has not objected, and which are admitted as designated.
Petitioner has proffered no additional exhibits of her own.
II. Issue

The issue before me in this case is whether Petitioner satisfied the requirements necessary
to obtain a Medicare billing number as a clinical nurse specialist, as set out at 42 C.F.R.
$§ 410.76(b).

III. Controlling Statutes and Regulations

Section 1866(j)(1) of the Social Security Act (Act), 42 U.S.C. § 1395cc(j)(1), authorizes
the Secretary of Health and Human Services (Secretary) to establish a process for the
enrollment in the Medicare Part B program of providers of services and suppliers.
Section 1866(j)(2) of the Act, 42 U.S.C. § 1395ce(j)(2), gives providers and suppliers
appeal rights for certain determinations involving enrollment, using the procedures that
apply under section 1866(h)(1)(A) of the Act, 42 U.S.C § 1395ce(h)(1)(A). These
procedures are set out at 42 C.F.R. Part 498, et seq., and provide for hearings by
Administrative Law Judges (ALJs) and review of ALJ decisions by the Departmental
Appeals Board (Board).

In provider appeals under 42 C.F.R. Part 498, the Board has determined that CMS must
make a prima facie case that an entity has failed to comply substantially with federal
requirements. See MediSource Corporation, DAB No. 2011 (2006). “Prima facie”
means that the evidence is “[s]ufficient to establish a fact or raise a presumption unless
disproved or rebutted.” Rosalyn L. Olian, DAB CR1472, at 2 (2006); see also Hillman
Rehabilitation Center, DAB No. 1611, at 8 (1997), aff'd, Hillman Rehabilitation Ctr. v.
U.S. Dep't. of Health and Human Services, No. 98-3789 (GEB) (D.N.J. May 13, 1999).
To prevail, the entity must overcome CMS’s showing by a preponderance of the
evidence. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004), aff'd,
Batavia Nursing and Convalescent Center v. Thompson, 129 Fed. Appx.187 (6th Cir.
2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Center, DAB
No. 1665 (1998).

Section 1861(s) of the Act, 42 U.S.C. § 1395x(s), defines a broad range of medical and
other health services that are eligible for Medicare reimbursement, including services
provided by a non-physician practitioner or an allied health professional. Under section
1842(b)(18)(C) of the Act, 42 U.S.C. § 1395u(b)(18)(C), eligible “practitioners” include
the following: physician assistants, nurse practitioners, clinical nurse specialists, certified
nurse-midwives, certified registered nurse anesthetists, clinical social workers, and
clinical psychologists. The Act further defines “clinical nurse specialist” as an individual
who
4

(i) is a registered nurse and is licensed to practice nursing in the State in
which the clinical nurse specialist services are performed; and

(ii) holds a master’s degree in a defined clinical area of nursing from an
accredited educational institution.

Act, section 186 1(aa)(5)(B), 42 U.S.C. § 1395x(aa)(5)(B).

Regulations define the credentialing requirements and criteria for providers and provider
cligible services at 42 C.F.R. $§ 410.69 - 410.78. The regulation at 42 C.F.R.

§ 410.76(b) sets out the qualifications required to be enrolled in the Medicare program as
a clinical nurse specialist. According to that regulatory definition, in order to be granted a
Medicare billing number as a clinical nurse specialist and thereby receive direct payment
for Medicare Part B services, an applicant must:

(1) Bea registered nurse who is currently licensed to practice in the State
where he or she practices and be authorized to perform the services of a
clinical nurse specialist in accordance with State law; and

(2) Have a master’s degree in a defined clinical area of nursing from an
accredited educational institution; and

(3) Be certified as a clinical nurse specialist by a national certifying body
that has established standards for clinical nurse specialists and that is
approved by the Secretary.

42 C.F.R. § 410.76(b).
IV. Findings and Conclusions
I find and conclude as follows:

1. Petitioner Jerilyn Mitchell applied for a Medicare billing number as a clinical nurse
specialist under the Medicare Part B program on October 2, 2006. Jt. Exs. 5, 6.

2. Eligibility for a Medicare billing number as a clinical nurse specialist under the
Medicare Part B program requires, inter alia, that the applicant must hold a master’s
degree in a defined clinical area of nursing from an accredited educational institution.
Act, section 1861(aa)(5)(B)(ii), 42 U.S.C. § 1395x(aa)(5)(B)(ii); 42 C.F.R.

§ 410.76(b)(2).
5

3. Petitioner carned and was awarded a Master of Science degree in counseling from an
accredited educational institution in 1983. Jt. Ex. 3; Jt. Ex. 6, at 50-52.

+. Petitioner’s Master of Science degree in counseling does not meet the statutory and
regulatory requirement set out in Finding 2 above, because it was not earned and awarded
in a defined clinical area of nursing.

5. Petitioner is not entitled, on the basis of her October 2, 2006 application, to a Medicare
billing number as a clinical nurse specialist.

V. Discussion

CMS has moved for summary judgment in its favor by its Motion for Summary
Affirmance. While FED. R. CIV. P. 56 is not directly applicable to proceedings under 42
C.F.R. Part 498, it does provide guidance for the standard of review for motions seeking
summary disposition. Summary judgment is generally appropriate when the record
reveals that no genuine dispute exists as to any material fact and the undisputed facts
clearly demonstrate that one party is entitled to judgment as a matter of law. White Lake
Family Medicine, P.C., DAB No. 1951 (2004). Here, as set forth below, the parties do
not disagree concerning the material facts of the case. Their disagreement lies in the
application of the law to the facts. A dispute between the parties over the correct legal
conclusion to be drawn from undisputed facts is not an impediment to the entry of
summary judgment, and in truth may be understood as the precise procedural context in
which summary disposition is most appropriate.

The parties agree that Petitioner is a Registered Nurse, and that she is currently so
licensed in Minnesota. They agree that she is authorized by Minnesota law to perform
services in that state as a clinical nurse specialist, that she has been certified as a clinical
nurse specialist by a national certifying body (ANCC) since 1993, and that she has earned
and has been awarded a Master of Science degree from an accredited educational
institution. They agree that her Master of Science degree was awarded in the specific
field of counseling, with emphasis on rehabilitation counseling. What they do not agree
about is whether Petitioner’s Master of Science in counseling is a “master’s degree in a
defined clinical area of nursing” within the terms of the Act, section 1861(aa)(5)(B)(ii),
and the regulation, 42 C.F.R. § 410.76(b)(2). In explaining its position, each party has
placed its own gloss on that critical phrase, with Petitioner bluntly denying that the phrase
requires that the master’s degree have been awarded in the field of nursing at all, and
CMS maintaining that the phrase means in effect a master’s degree in nursing with
emphasis on a defined clinical area of nursing practice.
6

Those two glosses rely on somewhat selective readings of the critical phrase to compel
different results. Petitioner’s gloss is summarized this way:

The regulation permits a master’s in “defined clinical areas” of nursing,
rather than limiting enrollment only to those applicants holding master’s
degrees in nursing. Courts are expected to interpret each word in a statute
or regulation as having meaning. The phrase “master’s degree in a defined
clinical area of nursing” must mean something other than a “master’s
degree in nursing,” or the words “defined clinical area” would not appear in
the rule.

P. Answer Brief, at 4.

CMS, on the other hand, staunchly argues that the phrase is currently understood by
ANCC, among others, as requiring that the master’s degree be exactly that: “a master’s
degree in nursing in a specialty area of practice.” CMS Reply Br., at 2; see CMS Ex. 2, at
1, 3, 5,6. The CMS gloss is heavily indebted to ANCC’s current interpretation of its
credentialing requirements, but it is buttressed by the views of other professional
organizations of nurses. CMS Ex. 4, at 4; CMS Ex. 5, at 2; CMS Ex. 6, at 2; CMS Ex. 9,
at 4. The American Association of Colleges of Nursing explicitly interprets the critical
phrase as equivalent to “a graduate program in nursing.” CMS Ex. 8, at 2.

Petitioner attempts to deflect the importance of ANCC’s current view by reminding
CMS that she holds a current ANCC certification as a clinical nurse specialist. That she
holds such certification cannot be disputed, but neither can the plain fact that when she
earned her clinical nurse specialist certification in 1993, ANCC’s certification standards
simply did not require that an applicant’s master’s degree be in nursing. Under the
ANCC standards then in effect, other combinations of formal education and clinical
experience were sufficient to support certification as a clinical nurse specialist. Jt. Ex. 3,
at 3. Moreover, the Minnesota statutory standard for clinical nurse specialist practice
does not require a master’s degree of any kind, so long as the applicant is “certified by a
national nurse certification organization ....” MINN. STAT. § 148.171, subd. 3; see
MINN. STAT. § 148.121. In Petitioner's case the national nurse certification organization
was ANCC applying its 1993 standards.

In company with the Board, the ALJs of this forum have adhered to the rule that the plain
language of a statute or regulation is always the best evidence of the meaning of that
statute or regulation. Florence Peters, D.P.M., DAB No. 1706 (1999); Tennessee
Department of Human Services, DAB No. 1054 (1989); Muhamad Salah Zoobi, DAB
CR1324 (2005); Joseph S. Scheidler, D.O., DAB CR1143 (2004). The ALJs of this
7

forum have read and applied the relevant statutes and regulations narrowly in appeals
such as this one, and have required strict compliance with the literal terms of those
statutes’ and regulations’ credentialing standards. Revathi Bingi, Ed.D., DAB CR1573
(2007); Roger Aveyard, DAB CR1558 (2007); Susan Stevens, DAB CRIS11 (2006);
Rosalyn L. Olian, DAB CR1472 (2006); Dorothy Rose Hrvnvk, DAB CR1444 (2006).
The suggestion that credentialing requirements can be satisfied by the demonstration of
“functionally equivalent” qualifications has been rejected. Revathi Bingi, Ed.D., DAB
CR1573. It is therefore appropriate now to ask whether the statute and regulation are
clear in what they demand, and if they are, to apply their demand rigorously.

The statute and regulation are both clear in what they demand, particularly when read in
the context of the uniform views of the professional nursing organizations. The statute
and the regulation demand a master’s degree in nursing with emphasis on a defined
clinical area of nursing practice. CMS’s position in this litigation is essentially correct,
and Petitioner’s position — that the regulation does not require that the master’s degree
even have been awarded in the field of nursing at all — is manifestly incorrect. Although
able to present an impressive array of professional and educational credentials, and
although authorized by Minnesota law to practice her profession in the very manner she
seeks to do under the Medicare program, Petitioner does not meet the Medicare Part B
standard for provider status as a clinical nurse specialist pursuant to section
1861(aa)(5)(B)(ii) of the Act, 42 U.S.C. § 1395x(aa)(5)(B)(1i), and 42 C.F.R.

§ 410.76(b)(2).

One other point requires brief mention here. Petitioner has argued that under regulations
applicable to the Public Health Service (PHS), she would be considered a clinical nurse
specialist under the PHS definition of “psychiatric nurse” at 42 C.F.R. Part 5, App. C
(Part 1) (B)(3)(b)(v). The PHS regulations apply to functions quite distinct from provider
status in the Medicare Part B program, and are derived from different statutory schemes.
The PHS regulations are irrelevant to this discussion.
Vi. Conclusion

For the reasons set out above, | grant CMS’s Motion for Summary A ffirmance. Having
determined as a matter of law that Petitioner Jerilyn Mitchell is not entitled to the relief
she seeks, | conclude that the determination of the Medicare Part B Hearing Officer to
uphold the Medicare Part B contractor’s denial of Petitioner’s application for a Medicare
billing number as a clinical nurse specialist should be, and it is, AFFIRMED.

/s/ Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Haven Health Center of Windham )
(CCN: 07-5425), ) Date: September 24, 2007
)
Petitioner, ) Docket No. C-04-213
) Decision No. CR1656
-Ve- )
)
Centers for Medicare & Medicaid )
Services. )
)
DECISION

Petitioner, Haven Health Center of Windham, Willimantic, Connecticut, is certified to
participate in the Medicare and Medicaid programs as a provider of services. Petitioner
challenges the Centers for Medicare & Medicaid Services’ (CMS) determination that it
was not in substantial compliance with program participation requirements and CMS’s
imposition of a per instance civil money penalty (CMP) of $2000. For the reasons
discussed below, I find that CMS did not make a prima facie case that Petitioner was out
of substantial compliance with participation requirements and, thus, CMS’s determination
to impose the $2000 per instance CMP is not supported by the record.

I. Background

The Connecticut Department of Public Health, Division of Health Systems Regulation
(State Agency) completed a complaint survey at Petitioner’s facility on October 17, 2003.
The State Agency determined that Petitioner was out of compliance with the Medicare
participation requirement at 42 C.F.R. § 483.10(b)(11) (F Tag 157 on the statement of
deficiencies (SOD or 2567)) and that the noncompliance was an isolated deficiency that
constituted actual harm not amounting to immediate jeopardy (a scope and severity level
G). By letter dated December 18, 2003, CMS imposed a per instance CMP of $2000
based on the State Agency determination.
2

By letter dated February 6, 2004, Petitioner requested a hearing. The case was assigned
to me for hearing and decision. On May 3, 2004, the parties submitted stipulations with
CMS’s readiness report (Stip.). I held a hearing in Hartford, Connecticut, on July 12,
2005.' I heard the testimony of three witnesses: Deborah Casinghino, the State Agency
surveyor who conducted the complaint survey in this case; Petitioner’s current Director of
Nursing (DON) Karen Parry; and Petitioner’s expert witness, Frederick Rowland, M.D.,
Ph.D. I admitted into evidence CMS Exhibits (CMS Exs.) 1-44 (Transcript (Tr.) at 9)?
and Petitioner’s Exhibits (P. Exs.) 1-4. Tr. at 10. Both parties submitted briefs (CMS Br.
and P. Br.).

II. Issues

1. Whether Petitioner was out of substantial compliance with participation
requirements.

2. If Petitioner was out of substantial compliance with participation requirements,
whether the $2000 CMP imposed by CMS against Petitioner is reasonable.

If. Statutory and Regulatory Background

The Social Security Act (Act) sets forth requirements for nursing facilities participating in
the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human
Services to promulgate regulations implementing the statutory provisions. Act, sections
1819 and 1919. The Secretary’s regulations governing nursing facilities participating in
the Medicare program are found at 42 C.F.R. Parts 483, 488, and 489.

' At the conclusion of CMS’s case, Petitioner moved for a directed verdict,
alleging CMS had not established its prima facie case. I informed the parties I would
consider whether CMS had established a prima facie case in my decision. Tr. at 45-48.

> CMS Ex. 11 was not included in the stack of documents CMS provided me at the
hearing and which I took into evidence and brought back to my office. During the
parties’ prehearing exchange, CMS provided me with two copies of CMS Ex. 11. Lam
placing one of those copies in the record as CMS Ex. 11 in order to complete the record.
I have not, however, relied on CMS Ex. 11 in making my decision in this case. I note
also that CMS’s Exhibits, other than CMS Exs. 43 and 44, were marked as Docket No. C-
04-121. The correct docket number for this case is Docket No. C-04-213. I am not,
however, re-marking CMS’s exhibits.
3

To participate, a nursing facility must maintain substantial compliance with program
requirements. To be in substantial compliance, a facility’s deficiencies may pose no
greater risk to resident health and safety than “the potential for causing minimal harm.”
42 C.F.R. § 488.301.

If a facility is not in substantial compliance with program requirements, CMS has the
authority to impose one or more of the enforcement remedies listed in 42 C.F.R.

§ 488.406, which include imposing a CMP. See Act, section 1819(h). CMS may impose
a CMP for the number of days that a facility is not in substantial compliance with one or
more program requirements, or for each instance that a facility is not in substantial
compliance. 42 C.F.R. § 488.430(a); 488.440. If CMS imposes a per instance CMP, the
CMP will be in the range of $1000-$10,000. 42 C.F.R. § 488.438(a)(2).

IV. Burden of Proof

As an evidentiary matter, CMS has the burden of coming forward with evidence related
to disputed findings that is sufficient (together with any undisputed findings and relevant
legal authority) to establish a prima facie case of noncompliance with a regulatory
requirement. If CMS makes this prima facie showing, then the petitioner must carry its
ultimate burden of persuasion by showing, by a preponderance of the evidence, on the
record as a whole, that it was in substantial compliance during the relevant period.
Evergreene Nursing Care Center, DAB No. 2069, at 7 (2007); Hillman Rehabilitation
Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Ctr., No. 98-3789 (GEB)
(D. N.J. May 13, 1999); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004),
aff'd, Batavia Nursing and Convalescent Center v. Thompson, No. 04-3687 (6th Cir.
2005); Guardian Health Care Center, DAB No. 1943 (2004); Fairfax Nursing Home,
Inc., DAB No. 1794 (2001), aff'd, Fairfax Nursing Home v. Dep’t of Health & Human
Srves, 300 F.3d 835 (7th Cir. 2002), cert. denied, 2003 WL 98478 (Jan. 13, 2003).

CMS makes a prima facie showing of noncompliance if the evidence CMS relies on is
sufficient to support a decision in its favor absent an effective rebuttal. Evergreene, DAB
0. 2069; Hillman Rehabilitation Center, DAB No. 1663, at 8 (1998), aff'd, Hillman
Rehabilitation Ctr. v. HHS, No. 98-3789 (GEB) (D. N.J. May 13, 1999); see also
Guardian Health Care Center, DAB No. 1943. A facility can overcome CMS’s prima
facie case either by rebutting the evidence upon which that case rests, or by proving facts
that affirmatively show substantial compliance. Evergreene Nursing Care Center, DAB
0. 2069, at 7; Tri-County Extended Care Center, DAB No. 1936 (2004). “An effective
rebuttal of CMS’s prima facie case would mean that at the close of the evidence the
provider had shown that the facts on which its case depended (that is, for which it had the
burden of proof) were supported by a preponderance of the evidence.” Evergreene
Nursing Care Center, DAB No. 2069, at 7-8; Tri-County Extended Care Center, DAB

o. 1936, at 4 (quoting Western Care Management, DAB No. 1921 (2004)).

V. Stipulations

The parties stipulated to the following facts (as set forth in CMS’s readiness report and
noted in Petitioner’s readiness report), and their stipulations are set forth verbatim below:

1. The resident care plan dated 2/10/03 indicated that the resident was insulin
dependent with interventions that included monitoring for signs and symptoms of
hypoglycemia which included cold, clammy skin, shallow respirations, mental confusion,
double vision and nervousness. (CMS 2567)

2. Review of the physician’s order dated 2/25/03 directed finger sticks four times
a day on Thursdays for one month. (CMS 2567)

3. Review of the resident’s glucose monitoring flow sheet dated 3/20/03 at 6:30
AM indicated that the resident’s finger stick was 52, and a repeat of 73 after a snack had
been given.

4. Review of the clinical record indicated that there was no documentation to
reflect that the physician was notified of the low blood sugar as per policy. Subsequently
the glucose monitoring flow sheet dated 3/20/03 at 11:30 AM indicated that the resident’s
finger stick was 46 with a repeat of 69 after orange juice and glucose had been given.

5. Although nurse’s notes of 3/20/03 did not identify that the physician was
notified of the 11:30 AM fingerstick of 46, the 24 hour report indicated that the physician
was called about the 11:30 AM sugar and was told of the 6:30 AM and 11:30 AM results
and blood work was ordered, however no change in insulin orders were made. (CMS
2567)

6. Review of a physician’s order dated 3/26/03 directed staff to monitor Resident
#1 blood pressure and pulse every week on Thursdays on the 3-11 shift. (CMS 2567)

7. Review of the nurse’s note dated 3/27/03 on the 11-7 shift, indicated that the
resident had a pulse rate of 46, and the resident’s color was pale, with an oxygen
saturation level of 94% on two liters of oxygen. (CMS 2567)

8. Although the nurse’s note dated 3/27/03 on the 11-7 shift indicated that the
resident had the Holter monitor in place, the facility was unable to provide documentation
that the physician had been notified of the resident’s low pulse rate. (CMS 2567)

9. Review of the facility’s policy on Physician Notification indicated that the
physician and/or medical director is to [be] notified in a timely fashion of a change in the
resident’s condition/status. (CMS 2567)
5

10. LPN #2 on 10/16/03 stated that she was unable to recall if the physician and/or
supervisor had been notified of the resident’s low pulse on 3/27/03 on the 11-7 shift.
(CMS 2567)

VI. Findings of Fact, Conclusions of Law, and Discussion

I make findings of fact and conclusions of law to support my decision in this case. I set
forth my findings below, in italics, as separate headings.

1. CMS has not made a prima facie case that Petitioner was out of substantial
compliance with the participation requirement at 42 C.F.R. § 483.10(b)(11) (F Tag 157
on the SOD dated October 17, 2003) at the relevant times.

The regulation at 42 C.F.R. § 483.10(b)(1 1) is entitled “notification of changes” and
provides, at section 483.10(b)(11)(i)(B), that a facility must immediately inform a
resident’s physician when there is a significant change in the resident’s physical, mental,
or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in
either life-threatening conditions or clinical complications). According to the Guidance
to Surveyors, State Operations Manual, Appendix PP, under F Tag 157, a “life
threatening condition” is a condition such as a heart attack or stroke. “Clinical
complications” are conditions such as development of a stage II pressure sore, onset or
recurrent periods of delirium, recurrent urinary tract infection, or the onset of depression.
The preamble to the final rule implementing this regulatory provision acknowledges that
“judgment must be used in determining whether a change in the resident’s condition is
enough to warrant notification.” 56 Fed. Reg. 48826, 48833 (Sept. 26, 1991).

CMS alleges that Petitioner was not in substantial compliance with the participation
requirement at 42 C.F.R. § 483.10(b)(11)()(B) because it failed to immediately notify
Resident 1’s physician when the resident had a low blood sugar at 6:30 a.m. on March 20,
2003, and a low pulse rate on March 27, 2003. CMS maintains that these two instances
required immediate consultation with Resident 1’s attending physician. To establish a
prima facie case of noncompliance, CMS must establish that on either March 20, 2003, or
on March 27, 2003, there was a “significant” change in Resident 1’s health status and that
the significant change be in either a “life-threatening” condition or constitute a clinical
complication.’

> CMS has also inferred that the March 20, 2003 blood sugar and the March 27,
2003 pulse contributed to the resident’s March 29, 2003 hospitalization. CMS has put in
no evidence to connect the event of March 29, 2003, to the events of March 20 and 27,
2003, and I thus do not consider the events surrounding the March 29, 2003
hospitalization here.
6

To establish its prima facie case, CMS relies on the SOD, the declaration (CMS Ex. 43)
and hearing testimony of Ms. Casinghino, the admitted exhibits offered by CMS, and the
memorandum of Albert L. Geetter, M.D. (CMS Ex. 44). I note first that I am giving no
weight to Dr. Geetter’s memorandum. It is not a sworn affidavit, is unsigned and is
undated. Moreover, Petitioner objected to it, arguing that if Dr. Geetter did not appear to
testify and be subjected to cross examination the statement was hearsay. CMS did not
call Dr. Geetter, and asserted only that his memorandum was prepared in the usual course
of his employment. CMS counsel did not present any testimony to establish that this
document was a business record prepared in the usual course of business, other than her
own representation on the record. See Tr. at 6-9, 45; CMS Br. at 8. While I admitted
CMS Ex. 44 into evidence, as noted above, I have given it no weight. Thus, in deciding
whether CMS has made its prima facie case, I consider only the testimony of Ms.
Casinghino, her declaration, CMS’s exhibits, and the SOD.

CMS presented no expert medical testimony from a physician regarding the resident’s
baseline condition and what changes cited in the resident’s blood sugar or pulse rate
might mean to the resident’s condition. Instead, CMS submitted Ms. Casinghino’s
written declaration and called her to testify at hearing. CMS Ex. 43; Tr. at 17-44. Ms.
Casinghino testified that her review of Resident 1’s medical records did not indicate that
the low finger stick blood glucose tests at 6:30 and 11:30 a.m. on March 20, 2003, were
reported to Resident 1’s physician. She testified that her discussions with Resident 1’s
physician and advanced practice registered nurse (APRN) indicated that they did not
recall being informed of the finger stick results and that had they been they might have
made changes in the resident’s treatment. However, the 24-hour report notes that the
physician was apprised of both finger stick results and I accept, based on the 24-hour
report, that the physician was, in fact, notified of the two finger stick results. CMS did
not call either the physician or the APRN as a witness, and the record does not reflect that
either told Ms. Casinghino that they were not informed of the results, just that they did
not recall whether they were so informed.

With regard to the resident’s blood sugar, the SOD notes that “no change[s] in insulin
orders were made” by the physician or APRN after the physician and APRN were
informed of the finger stick results. CMS Ex. 6, at 2; Stip. 5. While Ms. Casinghino
testified that the physician or APRN told her they might have done things differently if
they had been so informed (Tr. 25, 31, 35), the physician and the APRN apparently did
not find the change significant enough to change the resident’s insulin treatment.

Ms. Casinghino also testified that Petitioner did not follow its own policies and that
pursuant to facility policy a low blood sugar required immediately contacting the
resident’s physician. Tr. 30; CMS Ex. 18. The failure to follow an internal protocol or
policy is not in and of itself a failure to comply with a participation requirement. See
Lake City Extended Care, DAB No. 1658, at 6 (1998); Manor Care of Largo, DAB
7

CR746 (2001). What is important here is that even if reporting the two results together
was not “immediate” or “timely,” the physician or APRN did not consider the change
significant enough to change the insulin dosage given the resident. This convinces me
that the blood sugars noted on the morning of March 20, 2007 were not “significant”
changes.

CMS also does not explain how the low pulse detected on March 27, 2003, constitutes a
significant change to Resident 1's condition. Ms. Casinghino testified that Resident 1’s
normal pulse rate was between 58 and 70. Tr. 31. She does not explain why a pulse rate
of 46 on March 27, 2003, is significant, or how it might lead to a life-threatening
condition or clinical complication. CMS advanced no other evidence to show why the
low pulse was significant or how it might lead to a life-threatening condition or clinical
complication. It is only when a change causes a medically significant deterioration that
the notification requirement is triggered.

In sum, CMS did not present evidence to establish that the resident’s baseline condition
relative to the blood sugar levels or pulse rate in issue constituted a significant change in
her condition. Although CMS insinuates that the potential for more than minimal harm is
evident from low blood sugar readings or pulse rate, CMS never explains why or how
minimal harm is evident. CMS has not even met the first essential element of a
deficiency under this section of the regulations, as CMS has not established that a
significant change occurred. Since there is no evidence before me that a significant
change occurred, there is no need for me to address whether the change was a life-
threatening condition or constituted a clinical complication. I find that CMS has not
established a prima facie case that Petitioner was out of substantial compliance with
participation requirements. Thus I must find Petitioner to be in substantial compliance
with participation requirements.

2. CMS'’s imposition of the $2000 CMP is not supported by the record.
The only remedy imposed by CMS on Petitioner is a $2000 CMP. As I have found

Petitioner in substantial compliance with participation requirements, the imposition of the
CMP is not supported by the record.
VII. Conclusion

At all relevant times, Petitioner was in compliance with participation requirements.
Accordingly, CMS’s imposition of a $2000 CMP is not supported by the record.

/s/
Alfonso J. Montano
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

)
In the Case of: )
) Date: September 24, 2007
Francisco Pagana, )
)
Petitioner, ) Docket No. C-07-322
) Decision No. CR 1654
-v.- )
)
The Inspector General. )
oo )
DECISION

Petitioner, Francisco Pagana, is excluded from participation in Medicare, Medicaid, and
all other federal health care programs pursuant to section 1128(b)(4) of the Social
Security Act (Act) (42 U.S.C. § 1320a-7(b)(4)), effective January 18,2007. Petitioner is
excluded because his license or certificate to practice as a Certified Nurse Assistant
(CNA) in the State of California was revoked by the California Department of Health
Services, Licensing and Certification (state agency) for reasons bearing upon his
professional competence, professional performance, or financial integrity. There is a
proper basis for exclusion. Petitioner’s exclusion for not less than the period during
which his state license is revoked, is required by the Act.’ Act § 1128(c)(3)(E) (42 U.S.C.
§ 1320a-7(c)(3)(E)).

' Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only
after the period of exclusion expires. Reinstatement is not automatic upon completion of
the period of exclusion.
I. Background

The Inspector General for the Department of Health and Human Services (I.G.) notified
Petitioner by letter dated December 29, 2006, that he was being excluded from
participation in Medicare, Medicaid, and all federal health care programs pursuant to
section 1128(b)(4) of the Act, for not less than the period that his state license is revoked,
suspended, or otherwise lost or surrendered.

Petitioner timely requested a hearing by letter dated January 14, 2007. The case was
assigned to me for hearing and decision on March 23, 2007. On April 12, 2007, I
convened a prehearing telephonic conference, the substance of which is memorialized in
my Order dated April 18, 2007.

The L.G. filed a motion for summary judgment and supporting brief on May 29, 2007
(1.G. Brief), with I.G. Exhibits (I.G. Exs.) 1 through 8. Petitioner filed an opposition to
the motion for summary judgment on August 6, 2007 (P. Brief), with exhibits (P. Exs. ) 1
through 4.? The I.G. advised me by letter dated August 20, 2006 that no reply brief would
be filed. No objection has been made to the admissibility of any of the proposed exhibits
and I.G. Exs. | through 8, and P. Exs. | through 4 are admitted.

II. Discussion

A. Findings of Fact
The following findings of fact are based upon the uncontested and undisputed assertions
of fact in the pleadings and the exhibits admitted. Citations may be found in the analysis

section of this decision if not included here.

1. The state agency notified Petitioner by letter dated July 28, 2006 that his CNA
certificate was revoked.

> Petitioner refers to exhibit A, A-1, B, and B-1 in his brief (P. Brief at 3) but the
exhibits attached to the brief are not marked. I have marked the exhibits attached to
Petitioner’s brief as follows:

P. Ex. 1 — June 20, 2006 letter from the state agency to Petitioner;

P. Ex. 2 — July 12, 2006 letter from Petitioner’s counsel to the state agency;

P. Ex. 3 — July 26, 2006 letter from the state agency to Petitioner’s counsel; and

P. Ex. 4 — Order of Dismissal dated August 3, 2006.
3

2. Petitioner’s CNA certificate was revoked because he worked as a CNA during a
period when his CNA certificate was suspended.

3. Petitioner does not deny that his original suspension and the ultimate revocation of
his CNA certificate was based on a pattern of unprofessional conduct.

4. The I.G. notified Petitioner by letter dated December 29, 2006, that he was being
excluded from participation in Medicare, Medicaid, and all federal health care
programs pursuant to section 1128(b)(4) of the Act, for not less than the period
that his state license is revoked, suspended, or otherwise lost or surrendered.

5. Petitioner timely requested a hearing by letter dated January 14, 2007.

B. Conclusions of Law

1. Petitioner’s request for hearing was timely and I have jurisdiction.

2. Summary judgment is appropriate.

3. There is a basis for Petitioner’s exclusion pursuant to section 1128(b)(4)(A) of the
Act.

4. Pursuant to section 1128(c)(3)(E) of the Act, the minimum period of exclusion

under section 1128(b)(4) is not less then the period during which Petitioner’s state
license is revoked, suspended, or surrendered and is presumptively reasonable.
See also, 42 C.F.R. § 1001.501(b)(1).

C. Issues

The Secretary of the Department of Health and Human Services (the Secretary) has by
regulation limited my scope of review two issues:

Whether there is a basis for the imposition of the exclusion; and,
Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).
D. Applicable Law

Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of
the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. §
1320a-7(f)). Petitioner’s request for a hearing was timely filed and I do have jurisdiction.

Pursuant to section 1128(b)(4)(A) of the Act, the Secretary may exclude from
participation in Medicare, Medicaid, and all federal health care programs, any individual
whose license to provide health care is revoked or suspended by any state licensing
authority for reasons bearing upon the individual’s professional competence, professional
performance, or financial integrity. See also, 42 C.F.R. § 1001.501(a)(1).

The standard of proof is a preponderance of the evidence and the state agency
determination revoking Petitioner’s state license is not subject to my review. 42 C.F.R.

§ 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any
affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues.
42 C.F.R. § 1005.15(b) and (c).

E. Analysis
1. Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to
reasonable notice and an opportunity for a hearing. The right to hearing before an ALJ is
accorded to a sanctioned party by 42 C.F.R. § 1005.2, and the rights of both the
sanctioned party and the I.G. to participate in a hearing are specified in 42 C.F.R. §
1005.3. Either or both parties may choose to waive appearance at an oral hearing and to
submit only documentary evidence and written argument for my consideration. 42 C.F.R.
§ 1005.6(b)(5).

The ALJ may also resolve a case, in whole or in part, by summary judgment. 42 C.F.R.

§ 1005.4(b)(12). Summary judgment is appropriate and no hearing is required where
either: there are no disputed issues of material fact and the only questions that must be
decided involve application of law to the undisputed facts; or, the moving party must
prevail as a matter of law even if all disputed facts are resolved in favor of the party
against whom the motion is made. A party opposing summary judgment must allege facts
which, if true, would refute the facts relied upon by the moving party. See e.g., Fed. R.
5

Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation
and Medical Center, DAB No. 1628, at 3 (1997) (in-person hearing required where non-
movant shows there are material facts in dispute that require testimony); Thelma Walley,
DAB No. 1367 (1992); see also, New Millennium CMHC, DAB CR672 (2000); New Life
Plus Center, DAB CR700 (2000).

There are no genuine issues of material fact in dispute in this case. The sole issue argued
by Petitioner in the case before me is whether Petitioner’s due process rights were
violated by the state agency. The issue raised by Petitioner must be resolved against him
as a matter of law and summary judgment in favor of the LG. is appropriate.

2. There is a basis for Petitioner’s exclusion pursuant to section
1128(b)(4)(A) of the Act.

The I.G. cites section 1128(b)(4) of the Act as the basis for Petitioner’s permissive
exclusion. I.G. Ex. 1, at 1; 1.G. Brief at 5. The statute provides:

(b) PERMISSIVE EXCLUSION. — The Secretary may
exclude the following individuals and entities from
participation in any Federal health care program (as defined in
section 1128B(f)):

eR KK
(4) LICENSE REVOCATION OR SUSPENSION. — ANY
INDIVIDUAL OR ENTITY —

(A) whose license to provide health care has
been revoked or suspended by any State
licensing authority, or who otherwise lost such a
license or the right to apply for or renew such a
license, for reasons bearing on the individual’s
or entity’s professional competence,
professional performance, or financial integrity.

The statute permits the Secretary to exclude from participation any individual or entity:
(1) whose state license to provide health care has been suspended or revoked by a state
licensing authority; and (2) the revocation or suspension is for reasons bearing on the

individual’s professional competence, professional performance, or financial integrity.
6

The facts are not disputed. The state agency notified Petitioner by letter dated August 17,
2005, that it proposed to suspend his CNA certificate for 30 days and to place him ina
diversion program for 18 months based on a pattern of unprofessional conduct. The state
agency advised Petitioner that if he did not take action to accept the proposed 30-day
suspension and diversion program, his certificate would be suspended for one year. I.G.
Ex. 6. The state agency advised Petitioner by letter dated June 20, 2006, that his CNA
certificate was being immediately revoked because he allegedly sexually assaulted a
resident and he worked while his CNA certificate was suspended. P. Ex. 1. The state
agency advised Petitioner by letter dated July 26, 2006, that it was withdrawing its
determination to immediately revoke his CNA certificate based on review of his case file
and the fact that the alleged victim refused to testify at Petitioner’s appeal hearing. P. Ex.
2. By letter dated July 28, 2006, the state agency notified Petitioner that his CNA
certificate was revoked. The cited basis for the revocation was that Petitioner failed to
elect the 30-day suspension and diversion program offered in the August 17, 2005 state
agency letter and his CNA certificate was thus suspended from September 26, 2005
through September 24, 2006. The state agency determined that Petitioner was employed
as a CNA during the period of suspension and that revocation of his certificate was
required by the California Health and Safety Code § 1337.9(j). I.G. Ex. 8.

Petitioner does not dispute that his CNA certificate has been revoked by the state agency.
Petitioner also does not deny that his original suspension and the ultimate revocation of
his CNA certificate was based on a pattern of unprofessional conduct. Rather, Petitioner
argues that he was denied due process by the state agency. It is not within my authority
to review the state agency action that led to the revocation. 42 C.F.R. § 1001.2007(d).
Accordingly, the I.G. motion for summary judgment is granted. If Petitioner ultimately
obtains relief from the state agency action in an appropriate forum, Petitioner may seek
retroactive reinstatement pursuant to 42 C.F.R. § 1001.3005.

3. The period of exclusion is reasonable as a matter of law.

There is no issue regarding the duration of the exclusion as section 1128(c)(3)(E) of the
Act specifies that the exclusion shall not be less than the period during which Petitioner’s
state license to provide health care is revoked, suspended, or surrendered. See also, 42
C.F.R. § 1001.501(b)(1). The Secretary’s regulations provide that the I.G. will consider a
request for reinstatement only after the individual obtains a valid license in the state
where the individual’s license was originally surrendered. 42 C.F.R. § 1001.501(b)(4).
Ill. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare,
Medicaid and all federal health care programs effective January 18, 2007, 20 days after
the December 29, 2006 I.G. notice of exclusion, and for a period coterminous with his
licence revocation.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Bruno Real Choiniere, ) Date: September 20, 2007

)
Petitioner, )
)

-Vv.- ) Docket No. C-07-369

) Decision No. CR1653
The Inspector General. )
)

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Bruno
Real Choiniere, from participating in Medicare and other federally funded health care
programs for a minimum period of 32 years.

I. Background

On March 30, 2007 the LG. notified Petitioner that he was being excluded from
participating in Medicare and other federally funded health care programs for a minimum
period of 32 years.

The asserted basis for the exclusion was Petitioner’s conviction of crimes that are
described by the mandatory exclusion provisions of sections 1128(a)(1) and 1128(a)(3) of
the Social Security Act (Act). The I.G. relied on evidence relating to four allegedly
aggravating factors to justify the length of the exclusion.
2

Petitioner requested a hearing and the case was assigned to me for a hearing and a
decision. I held a pre-hearing conference by telephone at which I assigned the parties
deadlines for submitting briefs and proposed exhibits relating to the merits of the case.

Additionally, I advised the parties that either of them could request that I convene an in-
person hearing. | instructed them that, if either requested an in-person hearing, I would
convene it if the party requesting a hearing satisfied me that he sought to offer evidence in
the form of testimony that: (1) was relevant to the issues in the case; and (2) did not
duplicate evidence contained in an exhibit.

Both the I.G. and Petitioner filed briefs and proposed exhibits. Additionally, the I.G. filed
a reply brief. Neither party requested that I convene a hearing in person.’ The I.G. filed
eight proposed exhibits which he identified as I.G. Ex. 1 - 1.G. Ex. 8. Petitioner filed four
proposed exhibits which he identified as P. Ex. A, P. Ex. B, P. App. 1, and P. App. 2. I
receive all of the parties’ proposed exhibits into evidence.

II. Issues, findings of fact and conclusions of law
A. Issues
The issues in this case are whether:
1. Petitioner was convicted of offenses described in sections 1128(a)(1) and

1128(a)(3) of the Act for which exclusion from Medicare and other
federally funded health care programs is mandatory and, if so;

' On July 17, 2007 Petitioner filed a motion for discovery and asked that I stay
this case pending the I.G.’s compliance with his discovery request. On July 23, 2007 I
denied Petitioner’s motion and request for a stay. Order Denying Motion for Discovery
and Stay and Granting Petitioner an Extension of Time Within Which to File Proposed
Exhibits and a Brief, July 23, 2007. I explained in detail in that Order my reasons for
denying Petitioner’s motion and stay request. In summary, however, I denied the request
for discovery because Petitioner sought information from the I.G. that was irrelevant to
the issues that I am authorized to hear and decide.
3

2. The 32-year minimum exclusion imposed by the I.G. is reasonable.
B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this
case. I set forth each Finding as a separate heading. I discuss each Finding in detail.

1. Petitioner was convicted of offenses described in sections 1128(a)(1)
and 1128(a)(3) of the Act for which exclusion from Medicare and other
federally funded health care programs is mandatory.

Section 1128(a)(1) of the Act mandates the exclusion of any individual who is convicted
of a criminal offense relating to the delivery of an item or service under a federally
funded health care program including Medicare or a State Medicaid program. Section
1128(a)(3) mandates the exclusion of any individual:

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

The I.G. offered overwhelming proof that Petitioner was convicted of crimes falling
within the reach of both of these sections. Petitioner did not rebut this evidence.

On August 18, 2006, after a jury trial, Petitioner was convicted on all 34 counts of an
indictment charging him with health care fraud, concealing overpayments of benefits, and
money laundering. I.G. Ex. 2, at 1. Specifically, the I.G. offered proof that Petitioner
was convicted of the following:

+ Beginning in and around 2003 and continuing through 2005, Petitioner, a
chiropractor doing business in Indiana, knowingly and willfully executed and
attempted to execute a scheme and artifice to defraud the Indiana Medicaid
program, Medicare, and several private health insurers;
4

+ As part of his scheme Petitioner solicited elderly, infirm, and low income
Medicare beneficiaries and Medicaid recipients by holding meetings at which
these individuals received free food, free back massages, and free neck and back
pillows. Petitioner provided these individuals with cursory and inadequate
examinations and informed them that they needed back braces. During the
meetings Petitioner and his agents obtained personal and billing information from
the attendees so that Petitioner could use that information to bill Medicare, the
Indiana Medicaid program, and private insurers, for the back braces.

* Petitioner caused fraudulent claims for his services to be sent to Medicare, the
Indiana Medicaid program, and private health insurers. The claims included
claims for back braces that were not provided, that were not medically necessary,
and for which he was not entitled to reimbursement.

+ To facilitate his scheme Petitioner created and caused to be created fraudulent
and phony medical necessity letters. Although the letters purported to document
the medical necessity of the back braces that Petitioner provided they in fact
contained made-up diagnoses and patient symptoms. The documentation also
falsely contained names of referring physicians when, in fact, Petitioner had not
communicated with these physicians.

+ Petitioner filed reimbursement claims using billing codes for expensive, custom-
fitted orthoses (braces) when in fact he did not dispense such items. The brace that
Petitioner dispensed, when he dispensed one, was little more than a lumbar support
or a fancy weight lifter’s belt.

+ Petitioner fitted braces to individuals in circumstances where it would be
medically inappropriate or dangerous to provide such devices.

* To facilitate his scheme Petitioner falsely represented to patients that the braces
he supplied would help them lose weight.

+ Petitioner submitted redundant reimbursement claims for a single brace to
different insurers, including Medicare and the Indiana Medicaid program.

+ During the three year period that Petitioner executed his fraud the approximate
dollar amounts of his false or fraudulent claims and the reimbursement he received
from those claims is as follows:

a. More than $600,000 in false or fraudulent claims with the Indiana
Medicaid program for which he received more than $210,000;
5

b. More than $2,000,000 in false or fraudulent claims with Medicare for
which he received more than $1,200,000;

c. More than $480,000 in false or fraudulent claims with private insurers
for which he received more than $110,000.

¢ The total dollar amount of Petitioner’s false or fraudulent claims exceeds
$3,000,000. The total amount of money he obtained by fraud exceeds $1,500,000.

+ Petitioner concealed and failed to disclose his fraudulent activities in order to
obtain money from health care programs and insurers to which he was not entitled.

+ He engaged in numerous acts of money laundering of funds derived from health
care billing fraud.

LG. Ex. 2, at 1; LG. Ex. 7, at 1-17.

Petitioner’s conviction is of crimes that meet the statutory test of a section 1128(a)(1)
crime because he was convicted of defrauding both Medicare and the Indiana Medicaid
program by filing claims for items or services that he did not provide or which were not
provided as claimed. Petitioner was convicted of stealing funds from these programs
based on his fraudulent claims of having provided Medicare or Medicaid items or
services. His conviction also is of crimes amounting to fraud against a health care insurer
or insurers other than Medicare or the Indiana Medicaid program, and is thus a conviction
of a crime within the meaning of section 1128(a)(3) of the Act. Petitioner was convicted
explicitly of having defrauded health insurers other than Medicare or the Indiana
Medicaid program.

Petitioner has offered nothing to prove that he was not, in fact, convicted of section
1128(a)(1) or 1128(a)(3) offenses. Indeed, he does not deny that he was convicted nor
does he assert that his conviction was of crimes that do not fall within the reach of
sections 1128(a)(1) and 1128(a)(3). His argument, essentially, is that he is not guilty of
the crimes of which he was charged. Alternatively, Petitioner argues that, for a variety of
reasons, his conviction was obtained wrongfully, or that the United States government
committed a host of reversible errors in obtaining his conviction. Petitioner’s Response
to the Inspector General’s Brief in Support to Exclusion (Petitioner’s response) at 1-7. In
support of these assertions, Petitioner contends, among other things, that:
6

+ He made his reimbursement claims in good faith, relying on billing information
provided to him by the United States Department of Health and Human Services.
He argues that he was “entrapped” because he made his claims in reliance on such
information.

+ He has appealed his conviction and he expects that he will be exonerated as a
consequence of errors committed by the government.

+ The government had no jurisdiction over his claims and no basis for bringing
criminal charges against him.

+ He is innocent of all charges and was convicted unconstitutionally.
Id.

I do not have the authority to hear and decide these arguments. The I.G.’s authority to
exclude an individual pursuant to sections 1128(a)(1) and 1128(a)(3) of the Act derives
from that individual’s conviction of one of the offenses that is described in those sections.
In deciding whether the IG. is authorized to exclude Petitioner I may hear and decide
only the issue of whether Petitioner was convicted of an offense for which exclusion is
authorized. 42 C.F.R. § 1001.2007(a)(1)(i). In addressing that issue I may not decide
whether a conviction was obtained improperly or in error or whether the excluded
individual is not, in fact, guilty of the offense of which he was convicted. These issues
may only be considered in the context of an appeal of the conviction itself.’

Petitioner also seems to argue that an exclusion may not be imposed administratively but
only through a civil action brought in a federal court. If that is his argument, he is
incorrect. The authority to exclude administratively is conferred explicitly by section
1128 of the Act. Finally, Petitioner asks that his exclusion be stayed pending the outcome
of his appeal of his conviction. I have no authority to grant that request.

? Petitioner asserts that he has appealed his conviction to the United States Court
of Appeals. The I.G. would reinstate Petitioner if his conviction is reversed on appeal.
42 C.F.R. § 1001.3005(a)(1).
7

2. The length of Petitioner’s exclusion is reasonable.

Section 1128 is a remedial statute. Its purpose is not to impose punishment on an
individual in addition to that which the individual has received as a consequence of a
conviction. Rather, it is intended to give the Secretary a means to protect federally
funded health care programs and the beneficiaries and recipients of program funds from
individuals who are demonstrably untrustworthy. An exclusion will be sustained if it
relates reasonably to the statutory purpose of protection.

The Secretary published regulations which provide criteria for deciding whether an
exclusion is reasonable. In the case of an exclusion imposed pursuant to sections
1128(a)(1) or 1128(a)(3) of the Act the relevant regulation is at 42 C.F.R. § 1001.102(b)
and (c). The regulation describes factors which may be considered as aggravating and/or
mitigating. The presence of evidence relating to one or more of the aggravating or
mitigating factors may be a basis for lengthening or shortening an exclusion imposed
pursuant to either of the two sections of the Act.

The aggravating and mitigating factors serve as rules of evidence for deciding whether an
exclusion is reasonable. They define what is relevant to deciding the issue of
reasonableness. Evidence that does not relate to one of the factors is, by definition,
irrelevant and, therefore, may not be used to decide whether an exclusion is reasonable.

Also as the case with rules of evidence the aggravating and mitigating factors establish no
formula for deciding the length of an exclusion. They define what is relevant to deciding
the issue but do not prescribe what weight must be assigned to relevant evidence.
Consequently, any evidence that relates to an aggravating or a mitigating factor must be
evaluated in terms of what it says about an individual’s trustworthiness.

The exclusion that the I.G. determined to impose against Petitioner — at least 32 years — is
extraordinarily lengthy. In practical terms it is essentially a permanent exclusion against
Petitioner participating in federally funded health care programs. The I.G. asserts that the
exclusion is reasonable based on the presence of evidence relating to four aggravating
factors and the absence of any evidence relating to a mitigating factor.

* The minimum exclusion which must be imposed in the case of a section
1128(a)(1) or 1128(a)(3) conviction is five years. Act, section 1128(c)(3)(B). Evidence
relating to a mitigating factor cannot, in any circumstance, be used to justify an exclusion
that is less than the five-year minimum.
8

The record supports the I.G.’s contention that there is evidence relevant to four
aggravating factors. The factors, and the supporting evidence offered by the I.G., are as
follows:

Petitioner’s crimes caused Medicare, Indiana Medicaid, and other health care
programs, to sustain losses of more than $5,000. 42 C.F.R. § 1001.102(b)(1). The
total amount Petitioner was convicted of stealing from these programs was over
$1,500,000 and, of that sum, he stole more than $1,200,000 from Medicare. I.G.
Ex. 7, at 11.

+ Petitioner committed his crimes over a period of more than a year. 42 C.F.R.
§ 1001.101(b)(2). In fact, Petitioner perpetrated his crimes over about a three-year
period, from 2003 through 2005. I.G. Ex. 7, at 8-9.

Petitioner was incarcerated as a consequence of his conviction. 42 C.F.R.
1001.102(b)(5). His sentence included a total of 151 months’ imprisonment.
.G. Ex. 2, at 2.

mm

+ Petitioner was the subject of adverse actions by State administrative agencies
based on the same facts that authorize his exclusion. 42 C.F.R. § 1001.102(b)(9).
Petitioner’s professional license was revoked permanently in both Indiana and
Michigan based on the same facts that resulted in his conviction. I.G. Ex. 5; 1.G.
Ex. 6.

Petitioner offered no evidence to rebut that which the LG. offered relating to the
aggravating factors. Nor did Petitioner offer evidence that is relevant to any of the
potentially mitigating factors stated at 42 C.F.R. § 1001.102(c).

As I discuss above, at Finding 1, Petitioner’s arguments are that he is innocent of the
crimes of which he was convicted, that the government committed procedural and
constitutional errors in charging, trying, and convicting him, and that was “entrapped”
into relying on information supplied to him by the government which turned out to be
false or misleading. None of these arguments is relevant to any of the possible
aggravating and mitigating factors described in 42 C.F.R. §§ 1001.102(b) and (c).
Consequently, I may not consider them. His arguments do not derogate from the fact that
he was convicted of having stolen more than $1,500,000 from various health care
programs via a scheme that transpired over about a three year period. Nor do they
address his sentence or the fact that State agencies permanently revoked his license to
provide health care.
9

In this case the evidence relating to aggravating factors, and in particular that evidence
which describes the seriousness of Petitioner’s crimes, is more than ample to justify the
32-year exclusion that the I.G. determined to impose. The evidence establishes that
Petitioner was convicted of essentially making a career out of defrauding health care
programs. Petitioner’s fraud was massive, sustained, and persistent. In a period of about
three years he attempted to steal over $3,000,000 from Medicare, the Indiana Medicaid
program, and other health care programs. He was convicted of stealing more than
$1,500,000 from these programs. Petitioner was convicted of perpetrating his theft via an
elaborate and complex fraud scheme that included duping vulnerable patients, falsifying
medical documents and records, and fabricating or falsifying claims for services. The
seriousness of Petitioner’s crimes is reflected also in the length of the sentence he
received for them, more than 12 years in federal prison.

The facts that relate to the aggravating factors show Petitioner to have been an
extraordinarily diligent criminal. In order to perpetrate his scheme he had to process
many false claims and devote considerable efforts to generating the phony documents that
supported those claims. Such persistence in perpetrating theft on a grand scale is the
mark of an individual who is utterly untrustworthy to participate in federally funded
health care programs. There is nothing in the record to suggest that Petitioner is likely to
become trustworthy at any time in the foreseeable future.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Thomas I. DeVol, Ph.D., ) Date: September 18, 2007

)
Petitioner, )
)

-Vv.- ) Docket No. C-07-353

) Decision No. CR1652
The Inspector General. )
)

DECISION

This matter is before me in review of the determination by the Inspector General (I.G.) to
exclude Petitioner pro se Thomas I. DeVol, Ph.D. (Petitioner ), from participation in
Medicare, Medicaid, and all other federal health care programs. The I.G. relies on the
discretionary authority to do so conveyed to him by section 1128(b)(4)(A) of the Social
Security Act (Act), 42 U.S.C. § 1320a-7(b)(4)(A). The predicate for the I.G.’s action is
the revocation of Petitioner’s license to practice psychology in Missouri. The I.G. has
filed a Motion for Summary Affirmance.

The undisputed material facts in this case support the I.G.’s imposition of the exclusion.
The I.G. has set the period of exclusion to be concurrent with the period during which
Petitioner’s license to practice psychology in Missouri remains revoked, the minimum
period of exclusion required by law. For those reasons, | grant the I.G.’s Motion for
Summary A ffirmance.

I. Procedural Background
Petitioner was a psychologist licensed to practice in the State of Missouri. Beginning in

January 2002, a formal disciplinary proceeding against Petitioner was pending before the
Administrative Hearing Commission of the State of Missouri, on a complaint filed by the
2

Missouri State Committee of Psychologists. That complaint alleged ten counts of
misconduct in which Petitioner’s professional competence, professional performance, and
financial integrity were explicitly at issue.

On November 7, 2005, at the conclusion of the formal disciplinary proceeding, the
Administrative Hearing Commission of the State of Missouri sustained the charges in all
ten counts and found cause for the State Committee of Psychologists to discipline
Petitioner.

The State Committee of Psychologists entered its Findings of Fact, Conclusions of Law,
and Disciplinary Order on March 22, 2006, and thereby revoked Petitioner’s license to
practice psychology in Missouri.

On January 31, 2007 the I.G. notified Petitioner that he was to be excluded from
participation in Medicare, Medicaid, and all other federal health care programs until he
regains his license as a psychologist in Missouri, based on the authority set out in section
1128(b)(4)(A) of the Act. Petitioner wrote a pro se letter to the I.G. on February 11,
2007, and the I.G. forwarded that letter to the Civil Remedies Division, where it was
construed as a request for hearing filed pursuant to 42 C.F.R. § 1005.2.

Two efforts to conduct the prehearing conference required by 42 C.F.R. § 1005.6(a) were
unsuccessful for reasons attributable to Petitioner. The circumstances of those two
unsuccessful efforts are set out in the Orders of May 7, 2007 and May 22, 2007, and the
Notice sent electronically to the parties on May 17, 2007. The Order of May 22, 2007
contemplated that this case could be resolved by summary disposition on the parties’
briefs and documentary exhibits. The cycle of briefing and this record closed for
purposes of 42 C.F.R. § 1005.20(c) on August 27, 2007, under the circumstances set out
in the Order Closing Record of that date.

The evidentiary record on which I decide this case contains four exhibits. With his
Motion for Summary Affirmance and his Brief in Support of that Motion (1.G. Br.), the
LG. has proffered I.G. Exhibits (Exs.) 1-4. Petitioner has not objected to the admission of
these exhibits, and so all are admitted as designated. Petitioner has proffered no exhibits
of his own.

Petitioner’s pro se participation in this appeal has been minimal. What little there has
been of it has been unhelpful, and might easily be understood as intended to subvert the
orderly and lucid discussion of the case. I specifically refer to his failure to file his
request for hearing properly with the Civil Remedies Division, his failure to participate in
the second scheduled prehearing conference, his failure to file his Answer Brief timely
3

and in a proper manner with the Civil Remedies Division, and his failure to file his
Response Brief timely and in a proper manner with the Civil Remedies Division. The
details of Petitioner’s failings in those matters are set out in the Order Closing Record.

II. Issues

The issues before me are limited to those noted at 42 C.F.R. § 1001.2007(a)(1). In the
specific context of this record, they are:

1. Whether the I.G. has a basis for excluding Petitioner from participating
in Medicare, Medicaid, and all other federal health care programs pursuant
to section 1128(b)(4)(A) of the Act; and

2. Whether the length of the exclusion is unreasonable.

I resolve these issues in favor of the I.G.’s position. Section 1128(b)(4)(A) of the Act
supports Petitioner’s exclusion from all federal health care programs, for his license to
practice psychology in Missouri has been revoked for reasons bearing on his professional
competence, professional performance, or financial integrity. Petitioner’s exclusion
during the period that his license to practice psychology in Missouri remains revoked is
the minimum period established by section 1128(c)(3)(E) of the Act, 42 U.S.C. § 1320a-
7(c)(3)(E), and is therefore reasonable as a matter of law.

Ill. Controlling Statutes and Regulations

Section 1128(b)(4)(A) of the Act, 42 U.S.C. § 1320a-7(b)(4)(A), authorizes the exclusion
from participation in Medicare, Medicaid, and all other federal health care programs of
any individual or entity “whose license to provide health care has been revoked or
suspended by any State licensing authority . . . for reasons bearing on the individual’s or
entity’s professional competence, professional performance, or financial integrity.” The
terms of section 1128(b)(4)(A) are restated in similar regulatory language at 42 C.F.R.

§ 1001.501(a)(1).

An exclusion based on section 1128(b)(4)(A) of the Act is discretionary. If the LG.
exercises his discretion to proceed with the sanction, then the mandatory minimum period
of exclusion to be imposed under section 1128(b)(4)(A) of the Act “shall not be less than
the period during which the individual’s or entity’s license to provide health care is
revoked, suspended, or surrendered...” Act, § 1128(c)(3)(E), 42 U.S.C. § 1320a-
7(c)(3)(E). Regulatory language at 42 C.F.R. § 1001.501(b)(1) affirms the statutory
provision.

4

If the I.G. determines that an event constitutes a valid predicate for the exclusion, he must
send written notice of his final decision to exclude to the affected individual or entity, and
must in that notice provide information about the appeal rights of the excluded party. 42
C.F.R. § 1001.2002; see also Act, § 1128(c), 42 U.S.C. § 1320a-7(c).

IV. Findings and Conclusions
I find and conclude as follows:

1. Between January 3, 2002 and November 7, 2005, a formal disciplinary proceeding
against Petitioner was pending before the Administrative Hearing Commission of
the State of Missouri, on a complaint filed by the State Committee of
Psychologists. I.G. Ex. 1.

2. The formal disciplinary proceeding described above in Finding | concerned
Petitioner’s professional competence, professional performance, and financial
integrity. I.G. Exs. 1, 2.

3. On November 7, 2005, at the conclusion of the formal disciplinary proceeding
described above in Findings 1 and 2, and for reasons bearing on his professional
competence, professional performance, and financial integrity, the Administrative
Hearing Commission of the State of Missouri found cause for the State Committee
of Psychologists to discipline Petitioner. I.G. Ex. 1.

4. On March 22, 2006, the State Committee of Psychologists entered its Findings of
Fact, Conclusions of Law, and Disciplinary Order revoking Petitioner’s license to
practice psychology in Missouri for reasons bearing on his professional
competence, professional performance, and financial integrity. I.G. Ex. 2.

5. On January 31, 2007, the I.G. notified Petitioner that he was to be excluded from
participation in Medicare, Medicaid, and all other federal health care programs
until he regains his license as a psychologist in Missouri, based on the authority set
out in section 1128(b)(4)(A) of the Act. I.G. Ex. 4.

6. On or about February 11, 2007, Petitioner perfected this appeal from the I.G.’s
action by filing a timely hearing request.

7. Because Petitioner’s license to practice psychology in Missouri was revoked for
reasons bearing on his professional competence, professional performance, or
financial integrity, as set out in Findings 1-4 above, a basis exists for the I.G.’s
5

exercise of discretionary authority, pursuant to section 1128(b)(4)(A) of the Act,
to exclude Petitioner from participation in Medicare, Medicaid, and all other
federal health care programs.

8. The exclusion of Petitioner during the period that his license as a psychologist in
Missouri remains revoked is for the minimum period prescribed by law and is
therefore as a matter of law not unreasonable. Act, § 1128(c)(3)(E); 42 C.F.R.

§ 1001.501(b)(1).

9. There are no remaining disputed issues of material fact and summary disposition is
appropriate in this matter. Michael J. Rosen, M.D., DAB No. 2096 (2007); Thelma
Walley, DAB No. 1367 (1992); 42 C.F.R. § 1005.4(b)(12).

V. Discussion

There are two essential elements necessary to support an exclusion based on section
1128(b)(4)(A) of the Act. First, the I.G. must prove that the license to provide health care
of the individual to be excluded has been revoked or suspended by a State licensing
authority. Second, the I.G. must prove that the license was revoked or suspended for
reasons bearing on the individual’s professional competence, professional performance,
or financial integrity. Leonard R. Friedman, M.D., DAB No. 1281 (1991); Sherry J.
Cross, DAB CR1575 (2007); Michele R. Rodney, DAB CR1332 (2005); Edmund B.
Eisnaugle, D.O., DAB CR1010 (2003); Marcos U. Ramos, M.D., DAB CR788 (2001);
Allison Purtell, M.D., DAB CR781 (2001).

Petitioner does not deny the I.G.’s proof of those two elements. As I shall note below, his
only effort here is to raise an argument based on what he calls “my due process rights
under the US Constitution.” Petitioner’s Answer Br. (P. Ans. Br.) at 1. But the I.G.’s
evidence establishes both essential elements conclusively: Petitioner’s license to practice
psychology was revoked by the State Committee of Psychologists on March 22, 2006,
and it was revoked on the explicit basis of proven examples of his remarkable
professional incompetence and misconduct, and flagrant—if petty— financial chiseling.
LG. Exs. 1, 2. Moreover, Petitioner’s state-court challenge to the revocation of his
license was rejected in the Circuit Court of Cole County, State of Missouri, on November
6, 2006. I.G. Ex. 3. The I.G.’s evidence establishes both essential elements.

Section 1128(c)(3)(E) of the Act mandates that any period of exclusion based on section
1128(b)(4) must not be less than the period during which the individual’s or entity’s
license to provide health care is revoked, suspended, or surrendered. Thus, where the I.G.
is authorized to impose an exclusion pursuant to section 1128(b)(4), that exclusion is
6

reasonable as a matter of law if it is concurrent with the period during which the
individual’s license to provide health care is revoked, suspended, or surrendered. Tracey
Gates, R.N., DAB No. 1768 (2001); Julia Maria Nash, DAB CR1277 (2005); Maureen
Felker, DAB CR1110 (2003); April Ann May, P.A., DAB CR1089 (2003); Djuana
Matthews Beruk, D.D.S., DAB CR950 (2002). That is the period of exclusion proposed in
this case, and it is ipso jure reasonable.

The totality of Petitioner’s defense to the proposed exclusion is phrased by him as a
constitutional argument, but is in fact based on his assertion that the Circuit Court’s
action has been appealed to the Missouri Court of Appeals, Western District. He asserts
in his February 11, 2008 letter:

Does it make any difference that the adverse action of the State Committee
of Psychologists (SCOP) resulting in revocation is now before the Western
District of Missouri Court of Appeals? I shouldn’t think that the adverse
action of the Office of the Inspector General could be implemented until
court remedies are exhausted.

Petitioner’s Hearing Request at 1.

His Answer Brief comprises one paragraph two sentences long. Those sentences read:
My meritorius (sic) reason to not affirm is that DeVol vs. SCOP is before
the Western District of Missouri Court of Appeals. To affirm the position
of SCOP to revoke would deny me my due process right under the US
Constitution.

P. Ans. Br. at 1.

His Response Brief is even more pithy. Excluding his name and the date, Petitioner’s
Response Brief is 13 words in length:

My only defense is that I am still in the court of appeals.

Petitioner’s Response Brief at 1.

tis very difficult to detect a serious Fifth or Fourteenth Amendment argument anywhere
in that defense, particularly since Petitioner has no constitutionally-protected property
interest in participation in the Medicare and Medicaid programs. Kahn v. Inspector
General, 848 F. Supp. 432 (S.D.N.Y. 1994); Hillman Rehabilitation Center, DAB No.
7

1611 (1997), aff'd, Hillman Rehabilitation v. U.S. Dept of Health and Human Services,
No. 98-3789 (GEB), slip op. at 25 (DNJ May 13, 1999); Michael J. Rosen, M.D., DAB
CR1566 (2007), aff'd, DAB No. 2096 (2007); Edmund B. Eisnaugle, D.O., DAB
CR1010; Morton Markoff, D.O., DAB CR538 (1998). But if Petitioner has a
constitutional argument, it would be better saved for another forum: I simply cannot
entertain it. Michael J. Rosen, M.D., DAB No. 2096, n. 10; Keith Michael Everman,
D.C., DAB No. 1880 (2003); Susan Malady, R.N., DAB No. 1816 (2002). And if the
Missouri Court of Appeals, Western District, does indeed have before it Petitioner’s
appeal of the licensing board’s action, that is no impediment whatsoever to the I.G.’s
proposed exclusion. Joann Fletcher Cash, DAB No. 1725, n. 2 (2000); Sushil Gupta,
M.D., DAB CR1561 (2007); Affiong Ikpeme Ekong, DAB CR1432 (2006); Jeffrey
Gottlieb, M.D. a/k/a Jeffrey Gotlieb, DAB CR1211 (2004). Should Petitioner succeed in
winning the reversal of the Circuit Court’s Order and Judgment, the State Committee of
Psychologists’ Disciplinary Order, and the Administrative Hearing Commission of the
State of Missouri’s Decision, he can confidently expect retroactive reinstatement by the
1G. 42 C.F.R. § 1001.3005(a)(2). I. G. Reply Br. at 3.

Summary disposition in a case such as this is appropriate when there are no disputed
issues of material fact and when the undisputed facts, clear and not subject to conflicting
interpretation, demonstrate that one party is entitled to judgment as a matter of law.
Michael J. Rosen, M.D., DAB No. 2096; Thelma Walley, DAB No. 1367. Summary
disposition is explicitly authorized by the terms of 42 C.F.R. § 1005.4(b)(12). This forum
looks to the Federal Rules of Civil Procedure for guidance in applying that regulation.
Fed. R. Civ. P. 56; Robert C. Greenwood, DAB No. 1423 (1993). The material facts in
this case are undisputed, clear, and unambiguous, and support summary disposition as a
matter of law. This Decision issues accordingly.

VI. Conclusion

For the reasons set out above, the I.G.’s Motion for Summary Affirmance should be, and
itis, GRANTED. The I.G.’s exclusion of Petitioner Thomas I. DeVol, Ph.D., from
participation in Medicare, Medicaid, and all other federal health care programs is
SUSTAINED, pursuant to the terms of section 1128(b)(4)(A) of the Act, 42 U.S.C.
8

§ 1320a-7(b)(4)(A). That exclusion remains in effect, by operation of section
1128(c)(3)(E) of the Act, 42 U.S.C. § 1320a-7(c)(3)(E), while his license to practice
psychology in Missouri remains revoked, suspended, or surrendered.

/s/
Richard J. Smith
Administrative Law Judge