Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Patrick Brueggeman, D.P.M.
(NPI: 1376669150),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-15-1904
Decision No. CR4422
Date: November 12, 2015
DECISION

A Medicare administrative contractor, First Coast Service Options, Inc. (First Coast),
revoked the Medicare enrollment and billing privileges of Patrick Brueggeman, D.P.M.
(Petitioner), effective December 7, 2014, pursuant to 42 C.F.R. § 424.535(a)(8).! Ina
reconsidered determination, the Centers for Medicare & Medicaid Services (CMS)
upheld the revocation of Petitioner’s enrollment and billing privileges because CMS
determined that Petitioner submitted claims for payment of services that could not have
been provided to the individuals identified in the claim considering those individuals
were deceased on the date of service. Petitioner requested a hearing before an
administrative law judge. CMS now moves for summary judgment, which Petitioner
opposes.

For the reasons set forth below, I find that the undisputed material facts establish a legal
basis for CMS to revoke Petitioner’s Medicare enrollment and billing privileges because

' CMS substantially amended 42 C.F.R. § 424.535(a)(8), effective February 3, 2015.
See 79 Fed. Reg. 72,500 (Dec. 5, 2014). Although I discuss below the recently amended
version of the regulation, in this decision I apply the version of the regulation that was in
effect at the time the Medicare contractor revoked Petitioner’s billing privileges.
Petitioner submitted multiple claims for payment that identified Medicare beneficiaries
who were deceased on the alleged date of service. CMS is therefore entitled to judgment
affirming the revocation of Petitioner’s Medicare enrollment and billing privileges.

I. Case Background and Procedural History

Petitioner is a podiatrist in Florida. He participated in the Medicare program as a
“supplier” of services.’ By letter dated November 7, 2014, First Coast notified Petitioner
that it was revoking Petitioner’s Medicare enrollment and billing privileges effective
December 7, 2014, pursuant to 42 C.F.R. § 424.535(a)(8) and (g), because review of
Petitioner’s Medicare claims identified many claims where Petitioner billed for services
provided to 16 different beneficiaries who were deceased at the alleged time of service.
CMS Exhibit (Ex.) 3 at 1. First Coast also imposed a three-year bar on Petitioner’s re-
enrollment in the Medicare program. CMS Ex. 3 at 2.

On December 4, 2014, Petitioner submitted a request for reconsideration as well as a
corrective action plan (CAP). CMS Ex. 5; CMS Ex. 6. Petitioner acknowledged in both
his request for reconsideration and his CAP that he had submitted Medicare claims that
identified deceased beneficiaries, but he explained at length that the claims in question
were unintentional billing errors and that he actually provided services to individuals with
names similar to the deceased individuals identified on the claims. CMS Ex. 5 at 2-6;
CMS Ex. 6 at 2-6. On March 26, 2015, CMS rejected Petitioner’s CAP and issued a
reconsidered determination that upheld the revocation. CMS Ex. 7. When addressing
Petitioner’s claim that the improper claims were accidental and that he did not receive
reimbursement for them, CMS wrote:

This revocation is based on claims data dating back to January 1, 2012.
Claims were submitted for those beneficiaries and were denied. The denial
of these claims would have systematically provided information sufficient
for [Petitioner] to realize his error(s) and put into place changes that would
prevent future noncompliance .... Due to the abundance of errors in
billing from January 2012 through August 2014, after being aware of this
problem when the claims were originally denied, CMS views this as abuse
of billing, and not a clerical error or oversight.

CMS Ex. 7 at 2; Petitioner Exhibit (P. Ex.) 4 at 2.

> A “supplier” is defined as “a physician or other practitioner, a facility, or other entity
(other than a provider of services) that furnishes items or services under [Title XVIII of
the Social Security Act].” 42 U.S.C. § 1395x(d); see also 42 C.F.R. § 400.202.
By letter dated April 1, 2015, Petitioner requested a hearing before an administrative law
judge to challenge the reconsidered determination. This case was assigned to me. On
April 2, 2015, I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order),
which established general procedures for record development in this case and permitted
the parties to file for summary judgment, if appropriate. See Pre-Hearing Order § 4.
CMS timely filed a motion for summary judgment with a supporting brief (CMS Br.)
along with nine proposed exhibits (CMS Exs. 1-9). Petitioner filed an opposition to
CMS’s motion for summary judgment with a supporting brief (P. Br.) and 30 proposed
exhibits (P. Exs. 1-30). In his opposition, Petitioner objected to the admission of certain
parts of CMS Ex. 9, which I discuss below. CMS did not object to Petitioner’s proposed
exhibits.

II. Statutory and Regulatory Framework

The Social Security Act authorizes the Secretary of Health and Human Services
(Secretary) to establish by regulation procedures for enrolling providers and suppliers in
the Medicare program. 42 U.S.C. § 1395cc(j)(1)(A). The Secretary has promulgated
enrollment regulations for providers and suppliers in 42 C.F.R. Part 424, Subpart P. See
42 C.F.R. §§ 424.500 — 424.545 (2014). The regulations provide CMS with the authority
to revoke the billing privileges of an enrolled provider or supplier if CMS determines that
certain circumstances exist. Id. § 424.535(a). Relevant to this case, CMS may revoke a
provider’s or supplier’s billing privileges if:

The provider or supplier submits a claim or claims for services that could
not have been furnished to a specific individual on the date of service.
These instances include but are not limited to situations where the
beneficiary is deceased, the directing physician or beneficiary is not in the
State or country when services were furnished, or when the equipment
necessary for testing is not present where the testing is said to have
occurred.

Id. § 424.535(a)(8); see also 73 Fed. Reg. 36,448 at 36,455 (June 27, 2008) (“We will
direct contractors to use this basis of revocation after identifying providers or suppliers
that have these billing issues. We have found numerous examples of situations where a
physician claims to have furnished a service to a beneficiary more than a month after
their recorded death, or when the provider or supplier was out of State when the supposed
services had been furnished.”). The regulatory drafters explained in the preamble to
section 424.535(a)(8):

This revocation authority is not intended to be used for isolated occurrences
or accidental billing errors. Rather, this basis for revocation is directed at
providers and suppliers who are engaging in a pattern of improper billing
.... Accordingly, [CMS] will not revoke billing privileges under [section]
424.535(a)(8) unless there are multiple instances, at least three, where
abusive billing practices have taken place.

73 Fed. Reg. at 36,455.

When CMS revokes a provider’s or supplier’s billing privileges, any provider agreement
in effect at the time of revocation is terminated. 42 C.F.R. § 424.535(b). In addition,
after revocation CMS must impose a bar on re-enrollment for a minimum of one year, but
no more than three years. Id. § 424.535(c). Once the re-enrollment bar has expired, the
supplier must submit a new enrollment application to re-enroll in the Medicare program.
Id. § 424.535(d).

A provider or supplier may request reconsideration of the initial determination to revoke
his or her billing privileges. 42 C.F.R. §§ 498.5(/)(1), 498.22(a). If dissatisfied with the
reconsidered determination, the supplier may request a hearing before an administrative
law judge. Id. § 498.5(/)(2).

Il. Evidentiary Ruling

Petitioner objects to the admission of certain parts of CMS Ex. 9 because it contains
“irrelevant information not attributable to Petitioner, such as services not provided or
ordered by Petitioner, including therapy services.” P. Br. at 15. CMS Ex. 9 contains
screenshot printouts of various beneficiaries from the Medicare “Common Working
File.” See CMS Ex. 2 at {5 (affidavit from a First Coast employee explaining how he
obtained the information presented in CMS Ex. 9). The information includes the
beneficiary’s name, gender, address, date of birth, date of death, and other coded
information that appears to be, at least in part, the Medicare claims history for the
beneficiary. See, e.g., CMS Ex. 9 at 1. The contractor collected this demographic
information in the exhibit from a Social Security Administration database. See CMS
Ex. 2 at 5.

The regulations grant an administrative law judge broad discretion regarding receiving
evidence, even if that evidence is generally inadmissible under the Federal Rules of
Evidence. 42 C.F.R. § 498.61. As a general matter, evidence must be relevant and
reliable. Here, portions of CMS Ex. 9, including the beneficiary’s name, gender, date of
birth, date of death are relevant, and Petitioner did not object to them. CMS has not
demonstrated how certain information in CMS Ex. 9 relates to Petitioner or is relevant to
my consideration. That information includes coded material, which appears to be general
claims-related information. Therefore, I do not consider those parts of CMS Ex. 9 for
this decision. However, because the dates that the beneficiaries were born and died are
very relevant to this case, I overrule Petitioner’s objection and admit CMS Ex. 9, the
reliability of which Petitioner did not challenge.

In the absence of further objections, I receive CMS Exs. 1-9, as well as P. Exs. 1-30 into
the record for consideration.

IV. Discussion
A. Issues
This case presents two issues:
1. whether CMS is entitled to summary judgment; and

2. whether CMS was authorized to revoke Petitioner’s Medicare billing privileges
pursuant to 42 C.F.R. § 424.535(a)(8).

B. Conclusions of Law and Analysis
I. Summary judgment is appropriate.

Summary judgment is appropriate if “the record shows that there is no genuine issue as to
any material fact, and the moving party is entitled to judgment as a matter of law.”
Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations omitted).
The moving party must show that there are no genuine issues of material fact requiring an
evidentiary hearing and that it is entitled to judgment as a matter of law. Jd. If the
moving party meets its initial burden, the non-moving party must “come forward with
“specific facts showing that there is a genuine issue for trial... .”” Matsushita Elec.
Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). “To defeat an adequately
supported summary judgment motion, the non-moving party may not rely on the denials
in its pleadings or briefs, but must furnish evidence of a dispute concerning a material
fact — a fact that, if proven, would affect the outcome of the case under governing law.”
Senior Rehab., DAB No. 2300, at 3. To determine whether there are genuine issues of
material fact for hearing, an administrative law judge must view the evidence in the light
most favorable to the non-moving party, drawing all reasonable inferences in that party’s
favor. Id.

There is no genuine dispute of any material fact in this case. CMS presented evidence
showing that Petitioner submitted claims for services that could not have been provided
to a specific individual on the date of service because the individual identified in the
claim was deceased at the alleged time of service. See generally CMS Ex. 8; CMS Ex. 9;
see also CMS Ex. 2 at J] 5-6. Petitioner does not dispute that he submitted claims that
identified individuals who were deceased at the alleged time of service, but he argues that
the claims at issue were “submitted in good-faith as a result of an inadvertent clerical
billing error,” and that Petitioner did not receive any Medicare payments for the improper
claims. P. Ex. 22 at § 15; P. Br. at 5-6, 11. Petitioner also explains that he provided
services to individuals with similar names to the deceased individuals identified in the
claims he submitted. P. Ex. 22 at §§ 18-64. However, the general nature of the billing
errors — that is, whether they were accidental or not — is not material to the outcome of
the case. The plain language of the regulation applicable in this case does not necessarily
require a “pattern of improper billing,” which derives solely from the preamble, nor does
it expressly exclude clerical billing errors as a basis for revocation. See 42 C.F.R.

§ 424.535(a)(8). Any evidence or factual inferences that may be drawn showing that the
claims Petitioner submitted were clerical errors or accidental in nature do not impact the
result here. In addition, whether Petitioner provided services to individuals other than
those named in the claims he submitted is not material to the outcome of the case, which
focuses on the claims that Petitioner actually submitted to Medicare. Thus, a fact or
inference that shows Petitioner provided services to an individual with a name similar to
one actually identified in the claim does not impact the result. This case turns on a matter
of law, and is therefore appropriate for summary judgment.

For purposes of summary judgment, I draw all inferences in favor of Petitioner. Even
though not material to the outcome, I accept as true that Petitioner did not intend to
defraud Medicare and that the improper claims submitted were the result of clerical
errors.

2. The undisputed facts show that Petitioner submitted Medicare claims
for services that could not have been furnished to specific individuals
on the dates of services.

In support of its motion for summary judgment, CMS presented the results of an
investigation that show Petitioner submitted Medicare claims for services that could not
have been provided to the beneficiaries identified in the claims because the beneficiaries
were deceased on the dates of the claimed services. CMS Ex. 8; CMS Ex. 9; CMS Ex. 2
at J] 5-6. Petitioner does not dispute that he submitted the claims in question or that they
identified individuals who were actually deceased at the time of service. Petitioner
argues that the billing errors were the result of the billing system Petitioner’s office used,
and the services described in the claims were rendered to living beneficiaries with names
similar to those of the deceased Medicare beneficiaries identified in the claims. P. Br. at
5-6. With regard to the claims at issue, Petitioner qualifies them as billing mistakes,
inadvertent, and not rising to a level of abuse or a pattern of improper claims. P. Br. at 5-
6, 11; P. Ex. 22 at § 15-16.

The evidence shows that Petitioner submitted 31 claims for services that Petitioner
performed after the beneficiary identified on the claim had died. See CMS Ex. 4
(providing summary chart of information contained in CMS Ex. 8 and CMS Ex. 9). For
example, CMS has presented evidence showing that a beneficiary with the initials “J.A.”
was born on August 6, 1928, and died on January 24, 2011. CMS Ex. 9 at 3. The last
four characters of J.A.’s Health Insurance Claim Number (HICN) were 745A. CMS

Ex. 9 at 3. Petitioner submitted 12 Medicare claims for services rendered to J.A. See
CMS Ex. 4; CMS Ex. 8 at 1-24. Six of these claims were in 2012, three were in 2013,
and three were in 2014, all of which occurred after J.A. had died. As noted, Petitioner
argues that he provided care to living Medicare beneficiaries with the same or similar
names to the deceased beneficiaries identified on the submitted claims. Indeed, Petitioner
demonstrated that he previously provided services to an individual with the same name as
J.A., but who was born in 1953 and had HICN ending 454A. CMS Ex. 6 at 3; P. Ex. 22
at J] 24-26. Yet it is undisputed that Petitioner submitted 12 claims as though he had
performed those services on J.A. born in 1928, who was deceased at that time.

In another example, a Medicare beneficiary with the initials “R.K.” was born February
18, 1926, and died on September 28, 2011. CMS Ex. 9 at 6. The last four characters in
R.K.’s HICN were 505A. CMS Ex. 9 at 6. Petitioner submitted a Medicare claim for
services allegedly rendered to R.K. on October 5, 2012 (CMS Ex. 8 at 37-38), which
occurred over one year after R.K. had died. Petitioner’s records show that he provided
service to an individual with nearly the reverse interchanged names of R.K., but a
different gender, with a different date of birth, and a HICN ending 776A, all of which
distinguished the living beneficiary from R.K. See CMS Ex. 6 at 3; P. Ex. 22 at §§ 33-35.
However, Petitioner ultimately identified R.K. on the Medicare claim that he submitted.
CMS Ex. 8 at 37. The treatment records that Petitioner provided in this case support his
claim that at some point in the Medicare claims process, he confused the deceased
beneficiaries, who were former patient of his, with the beneficiaries actually receiving
treatment. See CMS Ex. 6 at 4; P. Ex. 22 at Jj 15. Petitioner explained that some of the
misidentifications resulted from his treatment of many living beneficiaries in the same
skilled nursing facility where the deceased beneficiaries once resided. See, e.g., P. Ex. 22
at ¥ 7-9, 22, 25, 28, 31, 37, 40, 46, 49, 55.

Ultimately, Petitioner’s evidence does not create a genuine dispute about whether he
submitted the claims at issue to Medicare, or about whether those claims identified
deceased beneficiaries as receiving treatment. Regardless of whether Petitioner provided
the claimed services to living beneficiaries — which I accept as true for purposes of
summary judgment — the claims he submitted to Medicare actually identified deceased
Medicare beneficiaries, which is a trigger for CMS’s revocation authority under section
424.535(a)(8). Petitioner has not come forward with evidence to refute CMS’s evidence
that shows he submitted claims for services that could not have been provided to a
specific beneficiary because that beneficiary was dead.

3. CMS was authorized to revoke Petitioner’s Medicare billing privileges
pursuant to 42 C.F.R. § 424.535(a)(8).

Once CMS had determined that Petitioner submitted a claim or claims that could not have
been furnished to specific individuals on the dates of service, it was then authorized to
revoke Petitioner’s Medicare billing privileges. 42 C.F.R. § 424.535(a)(8). Here, there
are 31 instances where Petitioner submitted a claim for a service that could not have been
furnished to a specific individual on the date of service because the specific individual
identified was deceased at that time. See CMS Ex. 4. Petitioner has offered statistical
estimates of his overall Medicare claims, arguing that the instances of improper billing
that lead to his revocation are a fraction of a percent of his total claims, which shows that
he was not defrauding Medicare or otherwise motivated by improper pecuniary gain.°

P. Br. at 2-3, 9. Petitioner repeatedly argues that the billing errors were “inadvertent.”
See P. Br. at 9-10; P. Ex. 22 at J 15.

The operative language of the revocation provision applicable in this case does not
require that CMS demonstrate Petitioner intended to defraud Medicare before it may
revoke Petitioner’s billing privileges. See 42 C.F.R. § 424.535(a)(8). It merely requires
the existence of improper claims. /d.; see also Louis J. Gaefke, D.P.M., DAB No. 2554,
at 7 (2013) (“The plain language of the regulation contains no requirement that CMS
establish that the supplier acted with fraudulent or dishonest intent.”). In addition, the
regulation does not suggest that a certain minimum percentage of improper claims
compared to the supplier’s overall claims is acceptable before CMS may revoke a
supplier’s Medicare billing privileges. 42 C.F.R. § 424.535(a)(8); see also Howard B.
Reife, D.P.M., DAB No. 2527, at 7 (2013) (“There is also no requirement in the
regulation (or the preamble) establishing a minimum claims error rate . . . that must be
exceeded before CMS may revoke billing privileges.”). Therefore, Petitioner’s claims
that he did not act fraudulently by submitting his improper claims and that his error rate
was extremely low are not sufficient to negate CMS’s authority to revoke Petitioner’s
billing privileges pursuant to 42 C.F.R. § 424.535(a)(8).

The drafters of the regulation suggest that CMS must demonstrate that Petitioner’s billing
practices showed a pattern of improper billing, that is, a pattern of making claims that
could not have been furnished to specific individuals on the dates of service. Id.; see

73 Fed. Reg. at 36,455 (“[T]his basis for revocation is directed at providers and suppliers
who are engaging in a pattern of improper billing.”). As explained above, CMS
demonstrated in 31 instances that Petitioner engaged in such a “pattern of improper
billing” for services that could not have been furnished to specific individuals on the
dates of service. According to the regulatory drafters, a “pattern of improper billing”
occurs when there are three or more instances of improper billing, which is undisputedly
the case with Petitioner. 73 Fed. Reg. at 36,455. Despite Petitioner’s extrapolation of his
improper billing over several years, neither the regulation nor the preamble allow
repeated improper billing over an extended period, so long as it is sufficiently spread out

> Petitioner argues that the improper claims at issue in this case represent 0.0024% of his
total Medicare claims during the period the improper claims cover. P. Br. at 2-3; P. Ex.
22 at { 16. There is no documentary evidence in the record to support that specific
percentage; however, I will accept that percentage as true for purposes of summary
judgment.
over that period. The regulation simply requires “a claim or claims” that are improper
before revocation is authorized, and the preamble explains that a “pattern of improper
billing” occurs after three or more improper claims without reference to any timeframe of

ow soon after one another those improper claims must occur. As I noted in Howard B.
Reife, D.P.M., DAB CR2728, at 6 (2013), “[rJepeatedly making [the] same errors [in the
Medicare claims at issue] reduces their credibility as ‘accidental’ and establishes a pattern
of improper billing that suggests a lack of attention to detail considering Petitioner could

ave differentiated the patients through their birthdates or Medicare numbers.” CMS did
point out in its reconsidered determination that many of the improper claims were denied,
yet Petitioner has not offered any explanation about why the denied claims did not
provide a clear warning that he was submitting claims that identified deceased
beneficiaries. See CMS Ex. 7 at 2. He continued to make improper claims, which further
demonstrates the “pattern of improper billing” that supports revocation. Petitioner’s
repeated errors in this case are sufficient to establish a “pattern of improper billing” under
the standard stated in the preamble. Petitioner’s attempt to show that his improper claims
were a de minimus amount of his overall proper claims submissions is not material. See
Reife, DAB No. 2527, at 7.

Moreover, Petitioner’s argument that he provided the services claimed, albeit to living
beneficiaries with names similar to those deceased beneficiaries identified in the claims at
issue, does not undermine CMS’s legal authority to revoke Petitioner’s billing privileges.
As another administrative law judge explained in a similar case addressing a similar
argument:

Petitioner’s argument overlooks that the regulation authorizing revocation
requires that the improper claim be for services that Petitioner could not
have provided to “a specific individual,” not just “an individual.” 42 C.F.R.
§ 424.535(a)(8) (emphasis added). Contrary to Petitioner’s argument, the
regulation requires specificity with reference to whom the services were
allegedly provided, not a generic identification of any individual. The
specific individual identified in a claim must be the specific individual who
received the services claimed, otherwise the claim is for services that could
not have been provided to “‘a specific individual,” and revocation is
permissible. Id.

Louis J. Gaefke, D.P.M., DAB CR2785, at 9 (2013), aff'd, DAB No. 2554, at 8 n.7.
The Board has also concluded that the revocation authority in section 424.535(a)(8)
hinges on the appropriate identification of a beneficiary in Medicare claims:

While section 424.535(a)(8) provides that “abuse of billing privileges”
involves submitting a claim or claims “that could not have been furnished
to a specific individual on the date of service,” the purpose of the phrase “‘to
a specific individual” is to cover situations where a practitioner was
10

available and had the necessary equipment to furnish a service, but could
not have furnished the service to the identified beneficiary given that
beneficiary’s status or location.

Reathab, Inc., DAB No. 2542, at 16 (2013) (emphasis added). Thus, for the same
reasons as stated in Gaefke and Realhab, | also reject Petitioner’s argument that providing
services to a living beneficiary not identified in the Medicare claims at issue absolves him
from the revocation of his Medicare billing privileges for submitting Medicare claims
that identified beneficiaries who were deceased at the time of service.

Finally, Petitioner’s reliance on the recent amendments to section 424.535(a)(8) is
incorrect. The amended section now states in its entirety:

(8) Abuse of billing privileges. Abuse of billing privileges includes either
of the following:

(i) The provider or supplier submits a claim or claims for services
that could not have been furnished to a specific individual on the
date of service. These instances include but are not limited to the
following situations:

(A) Where the beneficiary is deceased.

(B) The directing physician or beneficiary is not in the state
or country when services were furnished.

(C) When the equipment necessary for testing is not present
where the testing is said to have occurred.

(ii) CMS determines that the provider or supplier has a pattern or
practice of submitting claims that fail to meet Medicare
requirements. In making this determination, CMS considers, as
appropriate or applicable, the following:

(A) The percentage of submitted claims that were denied.
(B) The reason(s) for the claim denials.
(C) Whether the provider or supplier has any history of final

adverse actions (as that term is defined under § 424.502) and
the nature of any such actions.
11

(D) The length of time over which the pattern has continued.

(E) How long the provider or supplier has been enrolled in
Medicare.

(F) Any other information regarding the provider or
supplier’s specific circumstances that CMS deems relevant to
its determination as to whether the provider or supplier has or
has not engaged in the pattern or practice described in this
paragraph.

42 C.F.R. § 424.535(a)(8) (effective Feb. 3, 2015). Petitioner argues that the factors in
subsection 424.535(a)(8)(ii) should inform my analysis in this case because CMS’s
underlying basis for revoking Petitioner’s Medicare enrollment was actually that
Petitioner’s improper claims simply failed to meet Medicare requirements. See P. Br.
at 8.

Petitioner overlooks that subsection 424.535(a)(8)(i) is unchanged from the regulatory
language that was in effect at the time CMS revoked Petitioner’s enrollment. That
language authorizes CMS to revoke enrollment based on a provider or supplier’s
submission of “a claim or claims for services that could not have been furnished to a
specific individual on the date of service.” 42 C.F.R. § 424.535(a)(8)(i). It is undisputed
that Petitioner submitted claims for services that could not have been furnished to a
specific individual on the date of service because that individual was dead. See 42 C.F.R.
§ 424.535(a)(8)(i)(A). CMS has not argued that Petitioner’s claims simply did not follow
Medicare requirements. Nor has Petitioner explained why subsection 424.535(a)(8)(i)
would not apply to his case, and there is no apparent reason why it would not. Therefore,
I do not find Petitioner’s argument persuasive.

4. The duration of Petitioner’s re-enrollment bar is not subject to review.

A re-enrollment bar after a revocation is a minimum of one year and a maximum of three
years. 42 C.F.R. § 424.535(c). Petitioner argues that the three year re-enrollment bar
that CMS imposed in this case is “clearly excessive” when considering the amount and
nature of erroneous claims that Petitioner submitted. P. Br. at 13; see CMS Ex. 3 at 2.

Petitioner has not argued that the length of a re-enrollment bar is part of an “initial
determination,” which the regulations limit, in relevant part, to a determination to revoke
a provider or supplier’s Medicare enrollment in accordance with section 424.535.

42 C.F.R. § 498.3(b)(17). A re-enrollment bar is automatic after an initial determination
to revoke enrollment, which suggests that the re-enrollment bar is not part of the “initial
12

determination” to revoke, but a derivative consequence of that initial determination.

See 42 C.F.R. § 424.535(c). Consistent with other administrative law judges, I have
previously determined that the duration of a re-enrollment bar is not an appealable initial
determination, and thus an administrative law judge does not have the authority to
consider it. See, e.g., Hatem M. Dajani, M.D., DAB CR3612, at 13-14 (2015); see also
Gaefke, DAB CR2785, at 3 n.3; Criskel Home Health, Inc., DAB CR3417, at 12 n.6
(2014). When faced with a similar argument as the one Petitioner makes here, the Board
did not accept that the duration of a re-enrollment bar was not subject to review, but it did
not reject that conclusion either. See John Hartman, D.O., DAB No. 2564, at 6 (2014)
(“We need not address the reviewability of the enrollment bar here because we would in
any case find the length of the bar to be reasonable.”’). I will not reconsider the
longstanding conclusion especially in light of Petitioner’s failure to explain why the
duration of a re-enrollment bar is part of an “initial determination” that would be subject
to review. The “initial determination” relevant to this case consists of the determination
to revoke in accordance with section 424.535, not whether CMS imposed an appropriate
re-enrollment bar as a result of the revocation. Accordingly, my authority is limited to
determining whether CMS had a basis to revoke Petitioner’s enrollment and billing
privileges. See 42 C.F.R. §§ 424.535(c), 498.3(b)(17); David Tolliver, M.D., DAB
CR2281, at 12-13 (2010).

V. Conclusion

For the reasons explained above, I grant summary judgment in favor of CMS. There is
no genuine dispute of material facts, and CMS is entitled to judgment affirming its
revocation of Petitioner’s Medicare billing privileges effective December 7, 2014, with a
three year re-enrollment bar.

/s/
Joseph Grow

Administrative Law Judge


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

Alexander C. Gatzimos MD, JD, LLC d/b/a Michiana Adult Medical Specialists
(NPI: 1154663763; PTAN: IN1507)!

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-14-1059
Decision No. CR4421
Date: November 10, 2015
DECISION

The effective date of Medicare enrollment of Petitioner, Alexander C. Gatzimos MD, JD,
LLC d/b/a Michiana Adult Medical Specialists, is April 6, 2013, with retrospective
billing privileges beginning April 1, 2013.
I. Background
Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare contractor,

notified Dr. Alexander Gatzimos by letter dated October 14, 2013, that the Medicare
enrollment application for Alexander C. Gatzimos MD, JD, LLC d/b/a Michiana Adult

' This case was originally docketed Alexander Gatzimos, MD v. Centers for Medicare
& Medicaid Services (CMS). After reviewing the file and the pleadings of the parties it
become clear that the affected party in this case is not Alexander Gatzimos, MD (NPI:
1548476120) but rather Alexander C. Gatzimos MD, JD, LLC d/b/a Michiana Adult
Medical Specialists (NPI: 1154663763), a new physician group that seeks an earlier
effective date of enrollment in Medicare.
Medical Specialists (Petitioner) had been approved with an “effective date” of July 15,
2013.7 CMS Exhibit (Ex.) 9. Petitioner requested reconsideration, specifically that the
“effective date” be changed to April 1, 2013, the date Dr. Gatzimos first began treating
Medicare beneficiaries at Petitioner. CMS Ex. | at 5-6; Petitioner’s Exhibit (P. Ex.) 2.

WPS notified Petitioner by letter dated February 18, 2014, that the request for an earlier
effective date was denied on reconsideration. The reconsideration determination refers to
42 C.F.R. §§ 424.520 and 424.521 as the bases for the denial. The determination
explains that the effective date of Medicare enrollment was determined to be August 14,
2013, which is the date WPS received a valid application from Petitioner that was
ultimately approved. CMS Ex. | at 1-3; P. Ex. 1.

Dr. Gatzimos, the sole owner of Petitioner, requested a hearing before an administrative
law judge (ALJ) on April 17, 2014. The case was assigned to me on May 2, 2014, for
hearing and decision and an Acknowledgement and Prehearing Order (Prehearing Order)
was issued at my direction. CMS filed a combined motion for summary judgment and
prehearing brief with its proposed exhibits on June 2, 2014. Petitioner opposed the
motion. On August 14, 2014, I denied CMS’s motion for summary judgment.

A hearing was conducted on January 15, 2015, and May 11, 2015, and a transcript was
prepared.” CMS offered CMS Exs. | through 11 that were admitted as evidence. Tr.
Vol. 1 at 25. Petitioner offered P. Exs. 1 through 5‘ that were admitted as evidence. Tr.

> WPS refers to July 15, 2013 as the “effective date.” CMS Ex. 9 at 2. The terminology
is incorrect. The record shows that July 15, 2013, is actually the beginning of the 30-day
period for retrospective billing rather than the effective date of enrollment and billing

privileges. 42 C.F.R. § 424.521 (a)(1).

> The hearing in this case required two days of testimony. The court reporting service
produced a volume of the transcript for each hearing-day. The pages in the two volumes
were not numbered sequentially. Volume | for the transcript dated January 15, 2015 is
numbered pages | through 288, and volume 2 of the transcript for May 11, 2015 is
numbered pages | through 61. References to volume | are cited as “Tr. Vol. 1 at” and
references to volume 2 are cited as “Tr. Vol. 2 at.”

* Petitioner filed its exhibits with its request for hearing marked as “Attach” | through 5.
The documents were not properly marked as required by the Prehearing Order and the
Civil Remedies Division Procedures (CRDP). However, the exhibits were not returned to
Petitioner for correction because there was no potential for confusion due to the incorrect
(Footnote continued next page.)
Vol. 1 at 26-27. CMS called one witness, Kelly Hartung, a Contract Coordination
Manager for WPS. Petitioner called two witnesses, Kathryn Pribble, Petitioner’s practice
manager, and Crystal Clemons. Dr. Gatzimos also testified as the owner and operator of
Petitioner.

CMS’s post-hearing brief (CMS Br.) was filed July 13, 2015, and its post-hearing reply
(CMS Reply) and Proposed Findings of Fact and Conclusions of Law were filed on
August 12, 2015.° On July 27, 2015, CMS filed a motion for leave to amend its post-
hearing brief by adding as an appendix a copy of chapter 15 of the Medicare Program
Integrity Manual (MPIM), CMS Pub. 100-08. The motion is granted and the document is
accepted as an appendix to the CMS brief.

II. Discussion
A. Applicable Law

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

(Footnote continued.)

marking and the documents are treated as marked and referred to as P. Exs. 1 through 5.
Tr. Vol. 1 at 26-27.

> Petitioner’s post-hearing reply is incorrectly titled on the DAB E-file Item #30 as
“CMS Post Hearing Reply Brief” but the brief itself is correctly titled. Petitioner’s reply
brief is not paginated, but is 30 pages.

® Petitioner is a “supplier” under the Act and the regulations. A “supplier” furnishes
services under Medicare and the term supplier applies to physicians or other practitioners
and facilities that are not included within the definition of the phrase “provider of
services.” Act § 1861(d) (42 U.S.C. § 1395x(d)). A “provider of services,” commonly
shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing
facilities, comprehensive outpatient rehabilitation facilities, home health agencies,
hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act.
Act § 1861(u) (42 U.S.C. § 1395x(u)). The distinction between providers and suppliers is
important because they are treated differently under the Act for some purposes.
§§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).
Administration of the Part B program is through contractors such as WPS. Act § 1842(a)
(42 U.S.C. § 1395u(a)).

The Act requires the Secretary of Health and Human Services (the Secretary) to issue
regulations that establish a process for the enrollment of providers and suppliers,
including the right to a hearing and judicial review of certain enrollment determinations.
Act § 1866(j) (42 U.S.C. § 1395ce(j)).

Pursuant to 42 C.F.R. § 424.505,’ a provider or supplier must be enrolled in the Medicare
program and be issued a billing number to have billing privileges and to be eligible to
receive payment for services rendered to a Medicare eligible beneficiary. The effective
date of enrollment in Medicare of a physician, nonphysician practitioner, and physician
and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d). The
effective date of enrollment for a physician or nonphysician practitioner may only be the
later of two dates: the date when the physician filed an application for enrollment that
was subsequently approved by a Medicare contractor charged with reviewing the
application on behalf of CMS; or the date when the physician first began providing
services at a new practice location. /d. An enrolled physician or nonphysician
practitioner may retrospectively bill Medicare for services provided Medicare eligible
beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances
precluded enrollment before the services were provided. Retrospective billing for up to
90 days prior to the effective date of enrollment is permitted only in case of a
Presidentially-declared disaster pursuant to 42 U.S.C. §§ 5121-5206. 42 C.F.R.

§ 424.521.

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

7 References are to the revision of the Code of Federal Regulations (C.F.R.) in effect at
the time of agency action, unless otherwise indicated.
CMS or its contractors that are treated as being subject to administrative and judicial
review are listed in 42 C.F.R. § 498.3(b), and include the effective date of enrollment in
Medicare. 42 C.F.R. § 498.3(b)(15).

The Secretary’s regulations do not address the allocation of the burden of proof or the
standard of proof. However, the Departmental Appeals Board (the Board) has addressed
the allocation of the burden of proof in many decisions. The standard of proof is a
preponderance of the evidence. CMS has the burden of coming forward with the
evidence and making a prima facie showing of a basis for revocation of Petitioner’s
enrollment. Petitioner bears the burden of persuasion to rebut the CMS prima facie
showing by a preponderance of the evidence or to establish any affirmative defense.
Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing &
Convalescent Ctr., DAB No. 1904 (2004), aff'd, 129 F. App’x 181 (6th Cir. 2005);
Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665
(1998); Hillman Rehab. Ctr., DAB No. 1611 (1997) (remand), DAB No. 1663 (1998)
(aft. remand), aff'd, Hillman Rehab. Ctr. v. United States, No. 98-3789 (GEB), 1999 WL
34813783 (D.N.J. May 13, 1999).

“Prima facie” means generally that the evidence is “[s]ufficient to establish a fact or raise
a presumption unless disproved or rebutted.” Black’s Law Dictionary 1228 (8th ed.
2004). Thus, CMS has the initial burden of coming forward with sufficient evidence to
show that its decision regarding Petitioner’s effective date of enrollment and billing
privileges decision is legally sufficient under the statute and regulations. CMS makes a
prima facie showing of noncompliance if the credible evidence CMS relies on is
sufficient to support a decision in its favor absent an effective rebuttal by Petitioner.

B. Issues
The issue in this case is:

Whether Petitioner’s effective date of Medicare enrollment and billing
privileges should be different than the date determined by CMS and WPS.

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

My conclusions of law are set forth in bold followed by my findings of fact and analysis.
The findings of fact are based on the exhibits admitted and testimony received at hearing.
I have carefully considered all the evidence and the arguments of both parties, though not
all may be specifically discussed in this decision. I discuss in this decision the credible
evidence given the greatest weight in my decision-making. I also discuss any evidence
that I find is not credible or worthy of weight. The fact that evidence is not specifically
discussed should not be considered sufficient to rebut the presumption that I considered
all the evidence and assigned such weight or probative value to the credible evidence that
I determined appropriate within my discretion as an ALJ. There is no requirement for me
to discuss the weight given every piece of evidence considered in this case, nor would it
be consistent with notions of judicial economy to do so. Charles H. Kock, Jr., Admin L.
and Prac. § 5:64 (3d ed. 2013).

1. Alexander C. Gatzimos, MD was enrolled in Medicare as a
physician with billing privileges when he created Petitioner and he did
not need to reapply or reenroll in Medicare as an individual physician
supplier but he did need to report changes in his enrollment status as
required by 42 C.F.R. §§ 424.516-.517.

2. Petitioner, a new physician practice group, had to enroll in
Medicare and obtain billing privileges in order for Alexander C.
Gatzimos, MD to reassign to Petitioner his right to claim
reimbursement from Medicare. 42 C.F.R. § 424.80(a), (b), (d).

3. The current CMS interpretive rule or policy since December
5, 2014, is that the “date of filing” is the date a paper application
is mailed by a physician, nonphysician practitioner, a physician
or nonphysician practitioner group, or ambulance supplier to
the appropriate CMS contractor.

4. Petitioner’s Medicare-enrollment application that was ultimately
approved by WPS was mailed to WPS on April 6, 2013; and that is the
date of filing of the application and the effective date of Petitioner’s
Medicare enrollment and billing privileges. 42 C.F.R. § 424.520(d).

5. Pursuant to 42 C.F.R. § 424.521(a)(1), Petitioner’s retrospective
billing privileges could extend up to 30 days prior to Petitioner’s
effective date of enrollment, except that the earliest date services were
delivered at Petitioner was April 1, 2013, and that is the earliest date
for which Petitioner may retrospectively bill. 42 C.F.R. § 424.521(a).
a. Facts

I advised the parties at hearing that I would take official notice® that Dr. Gatzimos had an
active National Provider Identifier (NPI) 1548476120 with an enumeration date of May
14, 2007, which was last updated May 14, 2007. These facts are readily available to the
public on the CMS National Plan and Provider Enrollment System (NPPES).’ Tr. Vol. 1
at 34-35. The parties did not request an opportunity to be heard or object to my taking
judicial or official notice of the foregoing facts. Fed. R. Evid. 201. In fact, there is no
dispute that prior to April 1, 2013, Dr. Gatzimos was enrolled in Medicare with billing
privileges as a physician. Tr. Vol. 1 at 223-24. Until about April 1, 2013, Dr. Gatzimos
had his Medicare claims reassigned to Unity Medical Association (Unity), a group
practice where he was employed. Dr. Gatzimos left his employment at Unity on or about
April 1, 2013. CMS Ex. 2 at 1; P. Ex. 2 at 1; P. Ex. 3 at 1; CMS Br. at 1; RFH at 3.

On about March 1, 2013, Dr. Gatzimos created the limited liability corporation with the
name Alexander C. Gatzimos, MD, JD, LLC d/b/a Michiana Adult Medical Specialists,
the Petitioner in this case. CMS Ex. 7 at 14, 46-48. It is the effective date of enrollment
of Petitioner that is in issue before me. Dr. Gatzimos is the sole owner and authorized
official for Petitioner. The address for the practice is 2050 East Ireland Road, South
Bend, Indiana. CMS Ex. 2 at 1, 7, 14, 24; CMS Ex. 7; P. Ex. 2 at 1; P. Ex.3 at 1. On
about April 1, 2013, Dr. Gatzimos started furnishing services to Medicare beneficiaries at
Petitioner. Tr. Vol. 1 at 225-26; CMS Ex. 2 at 14. Dr. Gatzimos was told correctly" by
his office manager, Kathryn Pribble, and his credentialing specialist, Crystal Clemons,
that it was necessary for him to enroll Petitioner as a new enrollee in Medicare, despite

® Official notice of material facts is recognized by 5 U.S.C. § 556(e). Judicial notice
pursuant to Fed. R. Evid. 201 is equally applicable and is beneficial as the rule provides a
specific procedure for taking judicial notice. The transcript reflects I referred to taking
“administrative notice” which is in error, but there was no apparent confusion on the part
of the parties that I intended to take official or judicial notice of the facts specified.

° The NPPES NPI registry website is https://npiregistry.cms.hhs.gov/.

'° Dr. Gatzimos, who was already enrolled as a physician supplier, was required to file
the appropriate CMS-855 form to notify the Medicare contractor of changes in his
enrollment status, including a change of address. 42 C.F.R. §§ 424.515-.516. Petitioner
had to be enrolled as a new supplier. 42 C.F.R. §§ 424.505-.514.

the fact he thought it sufficient to simply change his enrollment address. Tr. Vol. 1 at
224-26; Tr. Vol. 2 at 32-33.

About the same time he started Petitioner, Dr. Gatzimos also began working one day per
week as a contract employee at Knox-Winamac Healthcare Center (Knox), a group
practice that was unrelated to Petitioner. CMS Ex. | at 5-6; P. Ex. 2 at 1-2; CMS Br. at
2; RFH at 2. Knox-Winamac also filed an application on or about April 1, 2013, to
reassign Dr. Gatzimos’ Medicare claims for services delivered through its facility. Tr.
Vol. 1 at 52, 123-24, 165; P. Ex. 2 at 1-2; CMS Br. at 2; RFH at 2. Both parties theorize
that when Dr. Gatzimos and his staff made telephone inquiries between April and August
2013 regarding the status of Petitioner’s enrollment application, WPS staff may have
been referring to the status of the Knox-Winamac application. This speculation is not
relevant to the issue before me because it does not make it more likely or not that the
application for Petitioner was actually mailed in April 2013 or received by WPS prior to
August 14, 2013. While I have no doubt that Dr. Gatzimos and his staff made multiple
calls to WPS between April and August 2013, the fact those calls were made and
answered is also not relevant to the issue before me. It would be relevant if during one of
the calls between April and August 2013, WPS had acknowledged receipt of an
enrollment application, specifically a CMS-855B form signed by Dr. Gatzimos and dated
April 5, 2013, with Petitioner’s NPI; but there is no allegation and no credible evidence
that such a statement was ever made by WPS staff.

In April 2013, Crystal Clemons was hired by Dr. Gatzimos to assist with the Medicare
enrollment application for Petitioner. Tr. Vol. 1 at 151; Tr. Vol. 2 at 9-10; CMS Br. at 2.
Ms. Clemons advised Dr. Gatzimos that an enrollment application CMS-855 would need
to be filed for Petitioner. Tr. Vol. 2 at 32; CMS Br. at 2. On April 5, 2013, Dr. Gatzimos
signed the CMS-855 enrollment application for Petitioner, which Ms. Clemons testified
she sent to WPS by regular mail on April 5 or 6, 2013. Tr. Vol. 2 at 33.

Dr. Gatzimos called WPS in August 2013 to inquire as to the status of the application for
Petitioner and he was told by a WPS representative that WPS did not have an enrollment
application for Petitioner. Tr. Vol. 1 at 226-27; CMS Ex. 2 at 2; P. Ex. 3 at 2; CMS Br. at
2-3. Dr. Gatzimos subsequently spoke with Jan Warner, supervisor of the WPS Medicare
Part B, Provider Enrollment Unit on August 12, 2013. Ms. Warner advised Dr. Gatzimos
that WPS had no enrollment application for Petitioner. On August 13, 2013, Dr.
Gatzimos sent a copy of the enrollment application for Petitioner that he had signed and
dated April 5, 2013, to Ms. Warner at WPS by overnight United States Postal Service
priority mail. There is no dispute that WPS received the application dated April 5, 2013,
on August 14, 2013. Tr. Vol. 1 at 47, 226-28; CMS Ex. 2 at 1-3, 31, 48; CMS Ex. 11 at 2
4] 8; P. Ex. 5; RFH at 2; CMS Br. at 3.

WPS staff reviewed the application dated April 5, 2013. On August 23, 2013, WPS staff
informed Dr. Gatzimos that the application he submitted dated April 5, 2013, was the
wrong form, a CMS-855B, and he needed to submit a CMS-855I with various other
documents within 30 days or his application would be rejected. WPS also sent Petitioner
a letter dated August 26, 2013, advising him of the need to file the correct form and
supporting documentation. Tr. Vol. 1 at 48-49, 128; CMS Ex. 3; CMS Ex. 6 at 2; CMS
Br. at 4. Dr. Gatzimos submitted a CMS-855] application to WPS with supporting
documentation as requested by WPS. CMS Ex. 6; CMS Ex. 7 (CMS-8551); CMS Br. at
4.

WPS advised Dr. Gatzimos by letter dated October 14, 2013, that Petitioner’s enrollment
application was approved. The CMS notice incorrectly states that the effective date of
enrollment is July 15, 2013. The effective date of enrollment was actually August 14,
2013, the date WPS received Petitioner’s enrollment application dated April 5, 2013,
with retrospective billing privileges back to July 15, 2013, 30 days prior to the date WPS
received the application. CMS Ex. 2 at 3, 31, 48; CMS Ex. 9.

The CMS witness, Kelly Hartung, confirmed that it was the application dated April 5,
2013 and received by WPS on August 14, 2013, that was approved and resulted in
Petitioner’s enrollment effective August 14, 2013. Tr. Vol. 1 at 46-47, 61-63, 132-33.
Ms. Hartung credibly testified, consistent with her declaration (CMS Ex. 11), that she
found no record that WPS received an application for Petitioner prior to August 14, 2013.
Tr. Vol. 1 at 42-54, 60-61.

The reconsideration determination also states that “WPS received a valid application
from Alexander Gatzimos, MD on August 14, 2013. This is the application that was
approved and processed .... The effective date is determined by the receipt date of a
valid application that is approved.” CMS Ex. | at 2.

For reasons discussed hereafter, whether or not and when Crystal Clemons mailed the
CMS-855B application for Petitioner, signed and dated by Dr. Gatzimos on April 5,
2013, is relevant and material to my determination in this case. Therefore, I make the
following findings based on the testimony of Petitioner’s witnesses.

Kathryn Pribble, Petitioner’s practice manager and Dr. Gatzimos’ wife, testified that
Petitioner was established on April 1, 2013, and an initial enrollment application was
submitted for Medicare enrollment. Tr. Vol. 1 at 150. She testified that she contacted
Ms. Clemons to handle Petitioner’s credentialing. Tr. Vol. 1 at 151. She testified that
she provided Ms. Clemons information for the application; that Dr. Gatzimos signed the
application on April 5, 2013; that Ms. Clemons was present when Dr. Gatzimos signed
the application; that the enrollment application was complete and in an envelope on April
5, 2013; and Ms. Clemons took the application with her when she left Petitioner’s office.
Tr. Vol. 1 at 156, 198, 204. Ms. Pribble testified that she believed that Ms. Clemons was
going to mail the application to WPS. Tr. Vol. 1 at 156-58, 198. However, in response
to my questions and on cross-examination she admitted she did not know whether or not
10

Ms. Clemons was going to mail the application or submit it on-line. Tr. Vol. 1 at 175,
183, 206. When asked on cross- examination if Ms. Clemons told her what day she
submitted the application, Ms. Pribble responded that Ms. Clemons had told her the
application was mailed on April 5. Tr. Vol. 1 at 190-91. When asked if she personally
saw Ms. Clemons mail the application or enter it on-line Ms. Pribble admitted that she
did not. Tr. Vol. 1 at 190. Ms. Pribble testified that she did not obtain a certified mail
receipt from Ms. Clemons. Tr. Vol. 1 at 191, 195-96. Ms. Pribble testified that she
called WPS several times beginning in May 2013 to check on the status of the
application. She testified that each time she was required to give an NPI number.
Ultimately, in August 2013, Ms. Pribble was told that WPS staff was referring to the
pending application for Dr. Gatzimos related to the Knox Winamac Clinic rather than
Petitioner. She testified that when it was learned in August 2013 that WPS had no
pending application for Petitioner, a copy of the enrollment application was sent through
over-night delivery. Tr. Vol. 1 at 159-68. In response to my questions and on cross-
examination she testified that when asked for an NPI number by WPS staff she was
giving staff Dr. Gatzimos’ NPI rather than that of Petitioner. Tr. Vol. 1 at 177-78, 192.

Dr. Gatzimos testified at the hearing. He stated that both Ms. Clemons and Ms. Pribble
were present when he signed the enrollment application on April 5, 2013. He testified
that Ms. Pribble told him on about August 12, 2013, that WPS did not have Petitioner’s
application. He then called WPS that same day using the enrollment hotline number
others in his office had been using to check the application status; he spoke with Debra
who referred him to a supervisor at WPS, Jan Warner; and he spoke with Ms. Warner on
August 12, 2013, to discuss the status of Petitioner’s enrollment application. He testified
that Ms. Warner called him back he believed on August 13, 2013, and advised him that
WPS could not locate Petitioner’s application. He recalled that he sent a letter to Ms.
Warner with a copy of Petitioner’s CMS-855B enrollment application dated April 5,
2013, by express delivery service. Tr. Vol. 1 at 223-28. On cross-examination he
admitted that the only evidence he has that the CMS-855B he signed on April 5, 2013
was sent to WPS by Ms. Clemons is the oral statements of Ms. Clemons and Ms. Pribble.
Tr. Vol. 1 at 229-31 (referring to P. Ex. 4; CMS Ex. 10).

I find the testimony of Dr. Gatzimos and Ms. Pribble fully credible. Both witnesses gave
their testimony under oath. CMS has presented no evidence to rebut their testimony.
The testimony of Ms. Hartung that she could find no record that WPS received the CMS-
855B for Petitioner prior to August of 2013, is not inconsistent with and does not rebut
the testimony that Dr. Gatzimos completed and signed the form and gave it to Ms.
Clemons to be transmitted to WPS on April 5, 2013. Clearly Dr. Gatzimos and Ms.
Pribble, his wife, have a pecuniary interest in the outcome of this case. However, the
amount of unreimbursed Medicare claims that could have been submitted by Petitioner
for the period April 1, 2013 to July 14, 2013, is not established by the evidence; and I
will not infer that their pecuniary interest is so significant as to cause them to perjure
11

themselves.'' The demeanor of Dr. Gatzimos and Ms. Pribble during their testimony
revealed no sign of evasiveness or prevarication.

Crystal Clemons testified that Dr. Gatzimos hired her to assist with the Medicare
credentialing for Petitioner. She testified that on April 5, 2013, she went to Petitioner’s
office to complete the enrollment application; that she was at the office for about five
hours working on the application; and that the application was complete and she had it in
her possession when she left Petitioner on April 5, 2013. She testified that she scanned
the application into her computer and mailed it to WPS by first class mail. She testified
that she made four or five follow-up phone calls to WPS and was not told there was no
application pending or that there was a problem; to the contrary, she was told the
application had been received and was pending. However, she testified that when she
called she provided Dr. Gatzimos’ NPI number and tax number when calling. Tr. Vol. 2
at 9-12, 15. She testified that she made contemporaneous notations of the conversations
with the WPS representatives each time she called; and these notations were kept in a
notebook at another clinic, where she was employed from April 2007 through January
2014. She stated that the notebook contained notes for “numerous” enrollment
applications for “multiple doctors” employed by the other clinic; that the notes she took
for Petitioner’s application were kept in the back of the notebook; and when she left the
other clinic in January 2014 she did not take the notebook with her as it was that clinic’s
property. Tr. Vol. 2 at 16-19, 21, 23. She could not recall the exact date she mailed the
application and she did not send the application certified mail. Tr. Vol. 2 at 25. She
testified in response to my questioning that the application was mailed either on April 5,
2013 or the next day. She did not submit the application online because the online
system was not considered to be a good system at that time. Tr. Vol. 2 at 27-28. She
testified that she had a receipt from mailing the application but she disposed of the receipt
after recording the transaction in her check book. Tr. Vol. 2 at 29-30. Ms. Clemons
testified that she emailed a scanned copy of the application to either Dr. Gatzimos or his
practice manager when they requested a copy. Tr. Vol. 2 at 31-32.

I find that Ms. Clemons’ testimony is fully credible. She testified by telephone and I was
unable to observe her demeanor. However, she testified under oath, forthrightly, and her
responses were fluid and without hesitation that might be associated with fabrication.
Although it is possible that Dr. Gatzimos and Ms. Clemons practiced the questions and

'! Dr. Gatzimos estimated the claims to amount to about $40,000. He explained that
these claims were for services to patients of his from before he formed Petitioner and
these patients simply followed him to his new practice. Tr. Vol. 2 at 43-45.
12

responses, there was nothing to indicate that responses had been practiced and
memorized. I made Ms. Clemons aware of her obligation to answer truthfully and there
was nothing about her testimony to indicate she did not do so. Ms. Clemons was paid to
complete the Medicare enrollment application for Petitioner, but there is no indication
that she was compensated for her testimony. There is also no evidence that she has any
pecuniary interest in the outcome of this proceeding. The testimony of Ms. Hartung that
she could find no record that WPS received the CMS-855B for Petitioner prior to August
of 2013, is not inconsistent with and does not rebut the testimony of Ms. Clemons that
she placed the application in the mail not later than April 6, 2013.

Based on the credible testimony of Dr. Gatzimos, Ms. Pribble, and Ms. Clemons, I find
that on April 5, 2013, Dr. Gatzimos signed a Medicare enrollment application, a CMS-
855B, to enroll Petitioner in Medicare. I further find that on April 6, 2013, Ms. Clemons
purchased postage and deposited the application in the United States mail for delivery to
WPS. I find, based on the testimony of Ms. Hartung that she could find no record that
WPS received that CMS-855B application dated April 5, 2013 and mailed on April 6,
2013. However, also based on the testimony of Ms. Hartung, Dr. Gatzimos, and Ms.
Clemons, and on the reconsideration determination, | find that on August 13, 2013, Dr.
Gatzimos sent a copy of the CMS-855B application to WPS that was received by WPS
on August 14, 2013. I further find that the CMS-855B dated April 5, 2013, was the
application that WPS processed to completion. CMS agrees. CMS Reply at 4.

b. Analysis

WPS determined in this case that the effective date of enrollment of Petitioner was
August 14, 2013, with retrospective billing privileges back to July 15, 2013. CMS Ex. 9;
CMS Br. at 1, 4. The reconsideration determination dated February 18, 2014, is
consistent with the CMS position before me, stating that “WPS received a valid
application from Alexander Gatzimos, MD on August 14, 2013. This is the application
that was approved and processed .... The effective date is determined by the receipt
date of a valid application that is approved.” CMS Ex. | at 2 (emphasis added).
Petitioner seeks an earlier effective date of Medicare enrollment and billing privileges
and argues that it should have retrospective billing privileges beginning no later than
April 1, 2013. P. Br. at 1.

This case has proven to be confusing because there are two suppliers involved: (1) Dr.
Gatzimos who is a physician supplier and has been enrolled in Medicare with billing
privileges for many years; and (2) Petitioner, which in April 2013 was a new physician
organization. There is no question that physicians, nonphysician practitioners, and
physician or nonphysician organizations must be enrolled in Medicare; meet all program
requirements, including state licensure requirements; and the services for which Medicare
reimbursement is sought must have been provided at the enrolled practice location, to be
eligible for reimbursement from Medicare for services provided to Medicare-eligible

13

beneficiaries. 42 C.F.R. § 424.521. Petitioner was created by Dr. Gatzimos in March
2013 as a limited liability corporation. A physician practitioner organization such as
Petitioner is any physician entity that enrolls in Medicare as a sole proprietorship or
organizational entity. 42 C.F.R. § 424.502. Dr. Gatzimos intended to provide services to
Medicare-eligible beneficiaries for which bills would be submitted to Medicare by
Petitioner. Therefore, Dr. Gatzimos wanted to enroll Petitioner in Medicare as a clinic or
group practice of which he was the sole owner and authorized official. CMS Ex. 2 at 7,
24.

There is no question that at the time he left Unity Medical Association on about April 1,
2013, Dr. Gatzimos was enrolled in Medicare as a physician supplier with his right to
receive reimbursement from Medicare reassigned to Unity. When he left Unity, Dr.
Gatzimos needed to comply with Medicare requirements by reporting the change in his
status to the appropriate Medicare contractor within either 30 or 90 days of the change.
42 CFR. §§ 424.515-.516.

Physicians, nonphysician practitioners, and physician and
nonphysician practitioner organizations must report the
following reportable events to their Medicare contractor
within the specified timeframes:

(1) Within 30 days—(i) A change of ownership; (ii) Any
adverse legal action; or (iii) A change in practice location.

(2) All other changes in enrollment must be reported within
90 days.

42 C.F.R. § 424.516(d). There is no allegation before me that Dr. Gatzimos failed to
comply with Medicare enrollment requirements in his capacity as an individual physician
supplier when he left Unity in April 2013, which might have prevented him from billing
Medicare using his NPI. However, that is not an issue I need to resolve and I express no
opinion as to whether Dr. Gatzimos could have sought reimbursement in his own name as
an enrolled physician after he left Unity and before the enrollment of Petitioner.

Dr. Gatzimos elected not to bill using his own enrolled supplier status. Rather, he
decided, consistent with guidance of Ms. Clemons (Tr. Vol. 2 at 21, 32-33), to enroll
Petitioner in Medicare so that Petitioner, a physician organization, could claim
reimbursement for services rendered by Dr. Gatzimos. The evidence shows that Dr.
Gatzimos intended to reassign his Medicare claims to Petitioner which is permitted. As
an exception to the general prohibition on Medicare paying amounts due a supplier to
another person or entity under an assignment, reassignment, or other arrangement,
Medicare may pay an entity enrolled in Medicare if there is a contractual relationship
between the entity and the supplier under which the entity bills for the supplier’s services
14

to Medicare-eligible beneficiaries. 42 C.F.R. § 424.80(a), (b), (d). As the sole owner of
Petitioner, it was not necessary for Dr. Gatzimos to file the CMS-855R, which is
typically used to accomplish reassignment. The instructions on the 855I form submitted
by Petitioner at WPS’ request in September 2013, states: “[i]f you are the sole owner of a
professional corporation, a professional association, or a limited liability company, and
will bill Medicare through this business entity, you do not need to complete a CMS-855R
that reassigns your benefits to the business entity.” CMS Ex. 7 at 13; CMS Reply at 2-3.
Regardless of the form, it is essential for reassignment that the entity to which Medicare
claims are reassigned be enrolled in Medicare in order for the reassignment to be
effective. Thus, it is the effective date of the enrollment of Petitioner, which is also the
effective date of Dr. Gatzimos’ reassignment to Petitioner, which is at issue before me.

My decision turns on the meaning of the phrase “date of filing” as used in 42 C.F.R.

§ 424.520(d). The “date of filing” of an enrollment application is the basis for
determining the effective date of enrollment of physicians or nonphysician practitioners,
their practice groups or organizations, and ambulance suppliers. I specifically requested
at hearing that the parties address the definition of “date of filing” in their post-hearing
briefing and specifically referred counsel to the apparently different definitions of that
phrase used by CMS in 2008 when promulgating 42 C.F.R. § 424.520(d) and in 2014
when expanding the scope and application of that regulation. Tr. Vol. 2 at 47-49.

I have found as fact that the enrollment application ultimately approved by WPS was the
CMS-855B enrollment application signed by Dr. Gatzimos on April 5, 2013, and mailed
by Ms. Clemons on April 6, 2013. I have also found as fact that WPS did not receive
Petitioner’s CMS-855B enrollment application until August 14, 2013, after Dr. Gatzimos
sent a copy of the original to WPS. The question to be resolved is a question of law —
whether the date of mailing of the application or the date of receipt by WPS determines
the effective date of Petitioner’s Medicare enrollment and billing privileges.

The controlling regulation provides:

Effective date of Medicare billing privileges.

2 OR

(d) Physicians, nonphysician practitioners, and physician and
nonphysician practitioner organizations. The effective date
for billing privileges for physicians, nonphysician
practitioners, and physician and nonphysician practitioner
organizations is the later of the date of filing of a Medicare
enrollment application that was subsequently approved by a
Medicare contractor or the date an enrolled physician or
15

nonphysician practitioner first began furnishing services at a
new practice location.

42 C.F.R. § 424.520(d) (emphasis added). The undisputed evidence shows that Dr.
Gatzimos first began furnishing services at Petitioner on about April 1, 2013. The
evidence shows that it was not until April 6, 2013, that Ms. Clemons mailed the CMS-
855B application to WPS. Therefore, if April 6, 2013, the date of mailing, is treated as
the date of filing, that is the later date and, under the regulation the effective date of
enrollment. Of course, if as CMS argues, the date of filing is actually the date of receipt
by WPS, which was August 14, 2013, then that is the later date and the date of
enrollment.

The phrase “date of filing” is not defined in 42 C.F.R. pt. 424 or related regulations.
Published CMS interpretive rules and policy also do not define “date of filing” related to
paper applications for Medicare enrollment. The MPIM, CMS Pub. 100-08, chap. 15,
sec. 15.17 (May 28, 2015), which guides Medicare contractors in processing enrollment
applications, does not define “date of filing” related to the filing of a paper application by
physicians, nonphysician practitioners, physician and nonphysician practice
organizations, and ambulance suppliers. My review of prior editions of the MPIM
reveals that no definition of “date of filing” related to paper applications has ever been
included in the MPIM. Understanding the meaning of “date of filing” is important
because it is the basis upon which the effective date of enrollment is determined. Why
CMS has repeatedly failed in its regulations to define “date of filing” is inexplicable.
Furthermore, it is not clear on what guidance Medicare contractors rely when
determining effective date when processing a paper application for enrollment.

It is necessary to look to the regulatory history of 42 C.F.R. § 424.520 to determine what
the drafters of that regulation intended by the phrase “date of filing.” The drafters of 42
C.F.R. § 424.520 state that:

We maintain that it is not possible to verify that a supplier has
met all of Medicare’s enrollment requirements prior to
submitting an enrollment application. Therefore, the
Medicare program should not be billed for services before the
later of the two dates that a physician or NPP [nonphysician
practitioner] organization, physician, or NPP has submitted an
enrollment application that can be fully processed or when the
enrolled supplier is open for business.

73 Fed. Reg. 69,725; 69,767 (Nov. 19, 2008).

The drafters further stated:
16

We are also adopting the “date of filing” as the date that the
Medicare contractor receives a signed provider enrollment
application that the Medicare contractor is able to process to
approval. If the Medicare contractor denies an enrollment
application that is not later overturned during the appeals
process, the new date of filing would be established when a
physician or NPP organization submits a new enrollment
application that the contractor is able to process to approval.

Id. at 69,773.

On December 5, 2014, CMS published a notice of final rule in the Federal Register
modifying the regulations applicable to the enrollment of providers and suppliers in
Medicare. The modification of the regulations was effective February 3, 2015. 79 Fed.
Reg. 72,500 (Dec. 5, 2014). CMS modified 42 C.F.R. § 424.535(d) to add ambulance

suppliers as regulated entities. The drafters stated in response to a comment to the notice
of rulemaking:

We agree that the 30-day and 90-day retroactive billing
provisions in § 424.521(a), to which the commenter is
referring, should apply to ambulance suppliers to the same
extent that they do to physicians, physician groups, non-
physician practitioners, and non-physician practitioner
groups. This approach would ensure: (1) Consistent
treatment between ambulance suppliers and the other supplier
types covered under § 424.520(d); and (2) that ambulance
suppliers can avail themselves of a brief retroactive billing
period if they are able to show that urgent circumstances
precluded the supplier from submitting its enrollment
application earlier than it did. Therefore, we have revised the
regulatory text in § 424.521(a) to include ambulance
suppliers.

Id. at 72,521.
The drafters included the following comment and response:

Comment: Several commenters requested CMS to clarify
that the “date of filing” of a CMS-855 application is the date
on which the contractor initially received the application, not
the date on which the contractor deemed the application
“complete.”
17

Response: The “date of filing” is the date on which the
provider or supplier submitted its CMS-855 application via

mail or Internet-based PECOS.

Id." The “comment” recognized the prior definition of “date of filing” as the date of
receipt by the contractor consistent with the drafter’s definition from November 2008 at

73 Fed. Reg. at 69,773. The response, however, reflects a di
date of filing is the date the CMS-855 is mailed by the provi

ferent definition, that is, the
ler or supplier or the date it

is submitted on-line. The drafters’ response rejects the notion that the date of filing is the
date of receipt by the CMS contractor when the application is submitted by mail.

The drafters included another comment and response that ma!
to be the definition of “date of filing”:

es clearer what they intend

Comment: Several commenters stated that a more definitive
distinction must be made as to what is meant by the date of an

application that is subsequently approved. One

commenter

stated that it is not uncommon for contractors to return
applications with a request for supporting documentation.

Another commenter requested an explicit statement that the
date the application is entered into PECOS or a paper CMS-
855B is mailed is the effective date of billing privileges,
assuming the application is eventually accepted; this would
make it clear that a request for additional documentation is
part of the original process and does not begin an entirely new
cycle.

Response: We indicated earlier that the effective date of
billing privileges under § 424.520(d) will be the later of: (1)
The “date of filing” of an enrollment application that is
subsequently approved; or (2) the date the supplier began
furnishing services at a practice location. The “date of
filing” is considered to be the date on which the supplier
submitted its CMS-855 application via mail or Internet-
based PECOS.

'. PECOS is the Medicare Provider Enrollment, Chain, and Ownership System. It
permits online enrollment and changes in enrollment by Medicare providers and

suppliers.
18

The term “subsequently approved” includes application
submissions for which the contractor requested additional
information from the supplier (or otherwise undertook
developmental activities with respect to the application) and
the application was ultimately approved. It does not include
applications that were rejected under § 424.525 or returned
pursuant to CMS Publication 100-08, chapter 15, and were
later resubmitted. A contractor’s request for additional
information does not constitute a final disposition regarding
the application; that is, the application is still in process.
However, a rejection or return indicates that the contractor
was unable to process the application to completion, meaning
that the application processing cycle has ended and the
supplier must submit a new application.

Id. at 72,521-22. Again, this more detailed explication of 42 C.F.R. § 424.520(d),
includes a specific statement of the definition of date of filing that departs from the
definition that the drafters mentioned in rulemaking in 2008. It is noteworthy that the
drafters provide the definition in response to a specific request for a definition that the
date of filing is the date the application is mailed or submitted by PECOS. The drafters
clearly depart from a definition of “date of filing” based on the date of receipt of an
application by a Medicare contractor.

Prior Board and ALJ decisions, including my own, that state that the date of filing is the
date of receipt of the enrollment application by the Medicare contractor, were based on
the Federal Register notice in 2008, which stated that date of receipt by the Medicare
contractor was the “date of filing” of an enrollment application. 73 Fed. Reg. 69,726, 69,
769 (Nov. 19, 2008). See, e.g., Karthik Ramaswamy, MD, DAB No. 2563 at 3 (2014);
Tri-Valley Family Medicine, Inc., DAB No. 2358 at 6 (2010); Middlesex Rheumatology,
CR3660 at 8-9 (2015) (all of which cite 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008)).
CMS has now adopted an interpretive rule or, at minimum, made a specific policy
statement that the “date of filing” of a paper application is the date it is mailed.

CMS urges me to continue to apply the old definition of “date of filing” from the 2008
regulatory history and decisions based thereon. CMS argues that the risk of an
application being lost in the mail (or in the contractor’s mailroom) should be upon the
applicant. CMS argues that CMS had no reason to change the definition in 2014. CMS
argues that the CMS drafters only intended for the date of mailing to apply to ambulance
suppliers and not change the long-standing rule that applied to the other suppliers listed in
42 C.F.R. § 424.520(d). CMS Br. at 15-18; CMS Reply at 10-11. However, the
discussion by the drafters does not discriminate among the suppliers covered by 42
C.F.R. § 424.520(d) by establishing a different definition of “date of filing” for different
19

supplier types. Such discrimination would be nonsensical and inconsistent with the
stated purpose of the drafters to treat physicians, nonphysician practitioners, and their
practice groups and ambulance suppliers the same. I reject the CMS argument that the
definition of “date of filing” contained in the December 2014 Federal Register notice
applies only to ambulance suppliers. CMS argues unabashedly that it is implausible to
think that CMS would announce such a significant policy change in a Federal Register
response to comments to a draft regulation. CMS Br. at 16. The CMS argument that a
major policy would not be announced in Federal Register comments, flies in the face of
the fact that in 2008 and again in 2014, CMS failed to define “date of filing” in the
regulation and only addressed the meaning of that phrase in responses to comments in the
Federal Register. CMS argues that it is significant that there was no change in the way
the MPIM defines “date of filing” after December 2014. CMS Br. at 18. CMS does not
point to the section in chapter 15 of the MPIM that defines “date of filing” for paper
applications and none of the prior editions I reviewed to 2008 included such a provision.

CMS argues that applying the definition of “‘date of filing” from December 2014 to this
case would be retroactive application and also amount to equitable relief which I am not
authorized to grant. CMS Br. at 19; CMS Reply at 11-16. L agree that I have no
authority to grant Petitioner equitable relief. However, that is not the nature of the relief I
grant in this case. Petitioner had a right to ALJ review of the reconsideration
determination dated February 18, 2014. After the reconsideration determination was
issued and before ALJ review is completed, CMS changed its definition of “date of
filing.” The interpretive rule or policy currently in effect is that articulated in the Federal
Register notice published at the request of CMS on December 5, 2014. My application is
not retroactive but is an application of the current CMS interpretative rule or policy.

“One of the most firmly established principles in administrative law is that an agency
must obey its own rules. ... In general failure to follow its own rules will not nullify an
agency’s action unless the party is prejudiced by that failure.” 1 Charles H. Koch, Jr.,
Richard Murphy, Admin. L. & Prac. § 4:22 (3d ed. 2010). This is clear with legislative
tules, less so with interpretative rules, and debatable with policy statements. However, as
an ALJ I am bound to follow the Constitution, the Act, and the Secretary’s regulations
and I give effect to the policies of the Secretary and CMS to the extent not inconsistent
with the law. Accordingly, I conclude that Petitioner should receive the benefit of the
current CMS interpretive rule or policy, which provides that the date of filing a paper
enrollment application is the date the application is mailed.

Petitioner mailed its CMS-855B application dated April 5, 2013 to WPS on April 6,
2013. The application was not received by WPS until August 14, 2013, but it was the
application dated April 5, 2013 that was processed to completion. Based on a date of
filing of April 6, 2013, the effective date of Petitioner’s enrollment was April 6, 2013.
42 C.F.R. § 424.520(d). Pursuant to 42 C.F.R. § 424.521(a)(1), Petitioner’s
retrospective billing privileges could extend up to 30 days prior to Petitioner’s effective
date of enrollment. However, because there is no dispute Dr. Gatzimos did not start

20

delivering services at Petitioner until April 1, 2013, Petitioner’s retrospective billing
privileges date only to April 1, 2013. 42 C.F.R. § 424.521(a) (retrospective billing only
for service provided at the enrolled practice location).

II. Conclusion

For the foregoing reasons, I conclude that the effective date of Petitioner’s Medicare
enrollment and billing privileges was April 6, 2013, with retrospective billing privileges
beginning April 1, 2013, the date services were first delivered to Medicare-eligible
beneficiaries at Petitioner’s facility.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
City of Sugar Land,
(NPI: 1447674825),
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-15-2839
ALJ Ruling No. 2016-3
Date: November 9, 2015
RULING
Petitioner, City of Sugar Land, applied for enrollment in the Medicare program as a
supplier of ambulance services. The Centers for Medicare & Medicaid Services (CMS)
denied its application because, at the time Petitioner applied, CMS had imposed a
moratorium on the enrollment of new ambulance suppliers and providers in Petitioner’s
geographic area. Petitioner appeals the denial and CMS moves to dismiss.
For the reasons set forth below, I find that CMS’s moratorium precludes Petitioner’s
enrollment based on the application it filed. I have no authority to grant any exceptions
nor to review any of the other issues Petitioner raises in its appeal. I therefore grant
CMS’s motion and dismiss this appeal. 42 C.F.R. § 498.70(b).
Background

On February 2, 2015, Petitioner, City of Sugar Land, applied to enroll in the Medicare
program as a supplier of ambulance services. CMS Exhibit (Ex.) 1.' In a letter dated

' Although not obvious on the face of the document, the parties do not dispute that
Petitioner filed its application on February 2, 2015. The application itself is stamped
“0065033.3349.” I understand that Medicare contractors stamp receipts using a “Julian-
March 27, 2015, the Medicare contractor, Novitas Solutions, denied the application,
explaining that CMS had imposed a temporary moratorium on enrollments for that
provider or supplier type within Petitioner’s geographic location. CMS Ex. 2. Petitioner
sought reconsideration.

In a reconsidered determination, dated June 2, 2015, the contractor’s health insurance
specialist affirmed the denial. She pointed out that the moratorium regulation (42 C.F.R.
§ 424.530(a)(10)) provides no exceptions for enrolling new ambulance suppliers in
moratorium areas and that administrative review of those denials is limited to the
question of whether the moratorium applies to the provider or supplier type or the
geographic location. CMS Ex. 3.

Petitioner timely appealed and the matter is now before me. Along with its prehearing
submissions, CMS has filed a motion to dismiss, which Petitioner opposes. With its
prehearing brief (CMS Br.) and motion, CMS submits three exhibits (CMS Exs. 1-3).
With its response (P. Br.), Petitioner submits seven exhibits (P. Exs. 1-7).

Discussion

Petitioner’s appeal must be dismissed because it has not raised an issue that I
have the authority to review. 2

CMS, acting on behalf of the Secretary of Health and Human Services, may impose a
temporary moratorium on the Medicare enrollment of new providers and suppliers if
“necessary to prevent or combat fraud, waste, or abuse .. . .” Social Security Act (Act)

§ 1866(j)(7)(A). CMS must deny a supplier’s enrollment in the Medicare program if
(among other reasons) its application is for a practice location in a geographic area where
CMS has imposed a temporary moratorium. 42 C.F.R. §§ 424.530(a)(10); 424.570(c).

The regulations limit my authority to review appeals based on CMS’s imposing a
moratorium on new enrollments. My review is limited to “whether the temporary
moratorium applies to the provider or supplier appealing the denial.” CMS’s basis for
imposing the temporary moratorium is not reviewable. 42 C.F.R. § 498.5(/)(4).

Here, on July 31, 2013, CMS imposed a moratorium “on the enrollment of new
ambulance suppliers and providers in Harris County and surrounding counties to prevent

format date stamp,” which numbers the days of the year consecutively, i.e., “33” would
mean the 33 day of the calendar year, or February 2. Kimberly Bergeron, NP, DAB
CR3438 at 3 n.5. (2014); Judith A. Kramer, M.D., DAB CR2183 at 6 (2010). Neither
party has explained exactly how “0065033.3349” translates into February 2, 2015.

> T make this one finding of fact/conclusion of law.
and combat fraud, waste, and abuse.” The moratorium became effective July 30, 2013.
78 Fed. Reg. 46,339-40 (July 31, 2013); see P. Ex. 1. Among the “surrounding counties”
subject to the moratorium is Fort Bend County, Texas. The City of Sugar Land is located
in Fort Bend County. 78 Fed. Reg. 46,345. CMS has extended the moratorium three
times since it was originally imposed: on February 4, 2014, August 1, 2014, and
February 2, 2015. 79 Fed. Reg. 6475 (Feb. 4, 2014); 79 Fed. Reg. 44,702 (Aug. 1, 2014);
80 Fed. Reg. 5551 (Feb. 2, 2015).

Petitioner concedes that the moratorium was in effect when it submitted its Medicare
enrollment application, and the City of Sugar Land is in the moratorium’s targeted
geographic location. Those are the only issues I can review, and they are not in dispute.

I am not persuaded by Petitioner’s argument that it has raised issues that I may review.
Petitioner’s hearing request mentioned just one (unreviewable) issue: whether it is
entitled to an exception to the moratorium (“Despite the moratorium, we feel an
exception to issue and allow for a 91 lemergency ambulance company should be
granted. ...”).

Petitioner disputes that “it is a provider of new ambulance services,” and thus subject to
the moratorium. P. Br. at 11. According to Petitioner, its ambulance services were
previously provided by Fort Bend County, but the arrangement resulted in poor
ambulance coverage, so the city decided that its own fire department should provide the
services. Because the services are essentially the same as those previously provided by
the county, they are not new. But the question is not whether the services themselves are
new. After all, many, if not most, newly-enrolled providers and suppliers will provide
the same services previously provided by others. The question is whether the supplier of
the services is new and, on that issue, there is no dispute. Sugar Land was not previously
enrolled as a supplier of ambulance services and Fort Bend County did not transfer its
provider number to Petitioner. It could not do so because it continued to provide those
services to county residents outside Sugar Land. So Sugar Land applied as a new
supplier and is subject to the moratorium. CMS Ex. | at 2, 6.

Otherwise, Petitioner attacks the underlying bases for applying the moratorium, pointing
out the extremely low risk of fraud posed by a governmental unit such as itself. And it
raises equitable and Constitutional arguments, which I have no authority to resolve.

Conclusion

Petitioner is entitled to review of one issue: whether the moratorium precluding
Medicare enrollment applies to its enrollment application. I am not authorized to grant
exceptions or to review CMS’s underlying reasons for imposing the moratorium.
Because Petitioner has not raised an issue that I have the authority to review, I dismiss
the appeal pursuant to 42 C.F.R. § 498.70(b) (authorizing dismissal if the party
requesting a hearing does not have a right to hearing).

/s/

Carolyn Cozad Hughes
Administrative Law Judge