Sharon Pavlik, CNS, DAB CR5440 (2019)

DECISION

The Medicare enrollment and billing privileges of Petitioner are revoked pursuant to 42 C.F.R. § 424.535(a)(1),1 on grounds that she did not meet the requirement of 42 C.F.R. § 410.76(b)(3). The effective date of revocation is March 9, 2018. 42 C.F.R. § 424.535(g).

I. Background

Noridian Healthcare Solutions, a Centers for Medicare & Medicaid Services (CMS) Medicare administrative contractor (MAC), notified Petitioner by letter dated February 7, 2018, that her Medicare enrollment and billing privileges were revoked effective March 9, 2018. The MAC cited 42 C.F.R. § 424.535(a)(1) as the basis for revocation stating that Petitioner did not have a required national certification. The MAC advised Petitioner that she was subject to a one-year reenrollment bar pursuant to 42 C.F.R. § 424.535(c). CMS Exhibit (CMS Ex.) 10.

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Petitioner filed a request for reconsideration dated March 12, 2018. CMS Ex. 1 at 11. On April 4, 2018, the MAC issued a reconsidered determination upholding revocation of Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) because Petitioner did not have a national certification issued by a credentialing body recognized by CMS. CMS Ex. 1 at 1.

Petitioner filed a request for hearing before an administrative law judge (ALJ) on June 4, 2018. On June 12, 2018, the case was assigned to me for hearing and decision and an Acknowledgement and Prehearing Order (Prehearing Order) was issued at my direction.

On July 11, 2018, CMS filed a motion for summary judgment (CMS Br.), with CMS Exs. 1 through 12. On August 10, 2018, Petitioner filed her brief in opposition to CMS's motion for summary judgment (P. Br.), with Petitioner's exhibits (P. Exs.) 1 through 4. On September 6, 2018, CMS waived filing a reply brief. The parties have not objected to the offered exhibits; CMS Exs. 1 through 12 and P. Exs. 1 through 4 are admitted.

II. Discussion

A. Applicable Law

Section 1831 of the Social Security Act (Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B. Administration of the Part B program is through the MACs. Act § 1842(a) (42 U.S.C. § 1395u(a)). Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.2 Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). Petitioner was enrolled as a certified nurse specialist (CNS), i.e., a supplier.

The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for the enrollment in Medicare of providers and suppliers, including the right to a hearing and judicial review of certain enrollment

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determinations, such as revocation of enrollment and billing privileges. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505, a supplier such as Petitioner 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.

Suppliers must submit complete, accurate, and truthful responses to all information requested in the enrollment application. 42 C.F.R. § 424.510(d)(2). The regulation provides that the signature attests to the accuracy of information provided in the application. The signature also attests to the fact that the provider or supplier is aware of and abides by all applicable statutes, regulations, and program instructions. 42 C.F.R. § 424.510(d)(3). Suppliers must meet basic requirements depending on their type of service. 42 C.F.R. §§ 424.505, 424.516, 424.517. Suppliers are also subject to additional screening requirements depending upon the type of service they provide. 42 C.F.R. § 424.518.

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS. 42 C.F.R. § 424.535. Per regulations, CMS or a MAC may revoke an enrolled supplier's Medicare enrollment and billing privileges and supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535. The regulatory authority cited for revocation in this case is 42 C.F.R. § 424.535(a)(1). Pursuant to 42 C.F.R. § 424.535(a)(1), CMS may revoke a supplier's enrollment and billing privileges if the supplier is determined not to be in compliance with enrollment requirements after an opportunity to correct the noncompliance.

Generally, when CMS revokes a supplier's Medicare billing privileges for not complying with enrollment requirements, the revocation is effective 30 days after CMS or its contractor mails notice of its determination to the supplier. 42 C.F.R. § 424.535(g). After a supplier's Medicare enrollment and billing privileges are revoked, the supplier is barred from reenrolling in the Medicare program for one to three years. 42 C.F.R. § 424.535(c).

A supplier whose enrollment and billing privileges are revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498. 42 C.F.R. § 424.545(a). A supplier submits a written request for reconsideration to CMS or its contractor. 42 C.F.R. § 498.22(a). CMS or its contractor must give notice of its reconsidered determination to the supplier, giving the reasons for its determination and specifying the conditions or requirements the supplier failed to meet, and advising of the right to an ALJ hearing. 42 C.F.R. § 498.25. If the decision on reconsideration is unfavorable to the supplier, the supplier has the right to request a hearing by an ALJ and further review by the Departmental Appeals Board (the Board). Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), 498.5. A hearing on the record, also known as an oral hearing, is required under the Act. Crestview Parke Care Ctr. v.

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Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004). The supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records. 42 C.F.R. § 424.545(c).

B. Issues

Whether summary judgment is appropriate; and

Whether there was a basis for the revocation of Petitioner's billing privileges and enrollment in Medicare.

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

My conclusions of law are set forth in bold text followed by my findings of fact and analysis.

1. Summary judgment is appropriate.

A provider or supplier denied enrollment in Medicare or whose enrollment has been revoked has a right to a hearing and judicial review pursuant to section 1866(h)(1) and (j) of the Act and 42 C.F.R. §§ 498.3(b)(1), (5), (6), (8), (15), (17), 498.5. A hearing on the record, i.e., an oral hearing with attendant due process rights, is required under the Act. Act §§ 205(b), 1866(h)(1), (j)(8); Crestview, 373 F.3d at 748-51. A party may waive appearance at an oral hearing, but must do so affirmatively in writing. 42 C.F.R. § 498.66. In this case, Petitioner has not waived the right to oral hearing or otherwise consented to a decision based only upon the documentary evidence or pleadings. Accordingly, disposition on the written record alone is not permissible if summary judgment is not appropriate.

Summary judgment is not automatic upon request but is limited to certain specific conditions. The Secretary's regulations that establish the procedures for adjudicating Petitioner's case are at 42 C.F.R. pt. 498. 42 C.F.R. §§ 424.545(a), 498.3(b)(5), (6), (15), (17). The regulations do not establish a summary judgment procedure or recognize such a procedure. However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. See, e.g., Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997). The Board has recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Federal Rule of Civil Procedure 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my

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Prehearing Order. The parties were given notice by the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. Pro. 56 will be applied. Prehearing Order ¶¶ II.D, G.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor. The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven. Mission Hosp. Reg'l Med. Ctr., DAB No. 2459 at 4 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 4 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment and an ALJ's decision-making in deciding a summary judgment motion differs from that used in resolving a case after a hearing. On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record. Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true. Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009). The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party's evidence would be sufficient to meet that party's evidentiary burden. Dumas Nursing and Rehab., L.P., DAB No. 2347 at 5 (2010). The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to meet the burden. However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498. Batavia Nursing and Convalescent Ctr., DAB No. 1904 (2004), aff'd, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 Fed. App'x 181 (6th Cir. 2005).

There is no genuine dispute as to any material fact in this case, even if, all inferences are drawn in favor of Petitioner. The issues in this case raised by Petitioner are issues of law that must be resolved against her. Summary judgment in favor of CMS is appropriate as a matter of law regarding revocation pursuant to 42 C.F.R. § 424.535(a)(1).

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2. Petitioner has failed to present evidence from which I can infer that she was enrolled in Medicare and issued a billing number prior to January 1, 1998.

3. There is no genuine dispute of material fact that Petitioner failed to satisfy the requirement of 42 C.F.R. § 410.76(b)(3), and the exception to that requirement does not apply.

4. There is a basis for revocation of Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) because Petitioner does not meet the enrollment requirement of 42 C.F.R. § 410.76(b)(3) and she is not exempt from the requirement.

a. Undisputed Facts

The pertinent facts are not disputed and Petitioner's averments of fact are accepted as true for purposes of summary judgment.

On August 28, 2002, Petitioner was first enrolled in Medicare as a CNS and granted billing privileges effective January 1, 2001. P. Br. at 4; P. Ex. 1.

Petitioner's Medicare enrollment as a CNS was revalidated twice, first on September 28, 2010 and again on June 18, 2013. P. Br. at 4; P. Ex. 3.

On September 18, 2017, Petitioner submitted an enrollment application to revalidate her Medicare enrollment as a CNS. CMS Ex. 2; P. Br. at 1. On September 28, 2017, the MAC requested that Petitioner submit a copy of a national certification from a nationally recognized certifying body that certified CNSs or nurse practitioners according to established standards. CMS Ex. 3; P. Br. at 1-2. Petitioner was unable to provide a document to satisfy the MAC and, ultimately, the MAC revoked Petitioner's Medicare enrollment and billing privileges by its initial determination of February 1, 2018. CMS Exs. 4-10; P. Br. at 2.

There is no dispute that Petitioner is licensed as a registered nurse and an advanced practitioner, specifically a CNS, by the State of Arizona. CMS Ex. 1 at 4-5; CMS Ex. 11 at 15, 19; P. Ex. 4. There is also no dispute that Petitioner is certified as a CNS by the Competency and Credentialing Institute (CCI), which is accredited by the National Commission for Certifying Agencies. CMS Br. at 2; P. Br. at 2; CMS Ex. 9; CMS Ex. 11 at 6, 8, 10-13, 15. There is no dispute Petitioner has a Master of Science in Nursing degree. CMS Ex. 11 at 17.

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b. Analysis

Pursuant to 42 C.F.R. § 424.535(a)(1), CMS may revoke an enrolled supplier's Medicare enrollment and billing privileges if:

(1) Noncompliance. The provider or supplier is determined not to be in compliance with the enrollment requirements described in this section, or in the enrollment application applicable for its provider or supplier type and has not submitted a plan of corrective action as outlined in part 488 of this chapter.

42 C.F.R. § 424.535(a)(1).

In response to the notice of the initial determination to revoke her Medicare enrollment and billing privileges, Petitioner submitted a corrective action plan (CAP). Petitioner's corrective action was not acceptable to the MAC and was rejected. The refusal of CMS or the MAC to accept Petitioner's CAP is not an initial determination subject to my review. 42 C.F.R. §§ 405.809, 424.545(a), 498.3(b); Conchita Jackson, M.D., DAB No. 2495 at 5-7 (2013); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 9 (2011); DMS Imaging, Inc., DAB No. 2313 at 5-8 (2010).

Applying the law to the undisputed facts in this case, I conclude that there is a basis for revocation of Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1).

On November 2, 1998, the Secretary published a final rule effective January 1, 1999, promulgating 42 C.F.R. § 410.76(b), which established requirements for CNSs to enroll in Medicare. The regulation required that: (1) the CNS be a registered nurse licensed in the state where he or she practices and must be authorized to perform services of a CNS according to the law of the state; (2) he or she must have a master's degree in a defined clinical area from an accredited school; and (3) he or she must be certified as a CNS by the American Nurses Credentialing Center. 42 C.F.R. § 410.76(b) (1999); 63 Fed. Reg. 58,814, 58,908 (Nov. 2, 1998). The regulation was subsequently amended to eliminate the reference to the American Nurses Credentialing Center. 42 C.F.R. § 410.76(b)(3) (2016). CMS now identifies acceptable certifying bodies by policies set forth in the Medicare Benefit Policy Manual, CMS Pub. 100-02, ch. 15, § 210 and the Medicare Program Integrity Manual, CMS Pub. 100-08, ch. 15, § 15.4.4.5. According to CMS policy, acceptable certifying bodies for clinical nurse specialists at the advance practice level are:

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• American Academy of Nurse Practitioners;
• American Nurses Credentialing Center;
• National Certification Corporation for Obstetric, Gynecologic and Neonatal Nursing Specialties;
• Pediatric Nursing Certification Board (previously named the National Certification Board of Pediatric Nurse Practitioners and Nurses);
• Oncology Nurses Certification Corporation;
• AACN Certification Corporation; and
• National Board on Certification of Hospice and Palliative Nurses.

There is no dispute in this case that Petitioner meets two of the three current requirements of 42 C.F.R. § 410.76(b) to enroll in Medicare and be issued billing privileges as a CNS. There is no dispute that she is a licensed registered nurse and is authorized to practice as a CNS by the State of Arizona. 42 C.F.R. § 410.76(b)(1). There is also no dispute that she has a master's degree from an accredited university as required by 42 C.F.R. § 410.76(b). The MAC's reconsidered determination shows that Petitioner's revalidation enrollment application was denied because she is not certified as a CNS by a "recognized national certifying body," which is required by 42 C.F.R. § 410.76(b)(3). CMS Ex. 1 at 1. There is no dispute that Petitioner is not certified as required by 42 C.F.R. § 410.76(b)(3). Therefore, Petitioner does not meet the enrollment requirements for a CNS.

Petitioner argues that the certification requirement did not exist when she was first enrolled in Medicare effective January 1, 2001. P. Br. at 5-6. However, Petitioner is in error as the credentialing requirement has been in effect since 1999, before Petitioner first enrolled in Medicare. The Medicare Benefit Policy Manual, CMS Pub. 100-02, ch. 15, § 210 provides:

Effective for services rendered after January 1, 1998, any individual who is participating under the Medicare program as a clinical nurse specialist (CNS) for the first time ever, may have his or her professional services covered if he or she meets the qualifications listed below and he or she is legally authorized to furnish CNS services in the State where the services are performed. CNSs who were issued billing provider numbers prior to January 1, 1998, may continue to furnish services under the CNS benefit.

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Payment for CNS services is effective on the date of service, that is, on or after January 1, 1998, and payment is made on an assignment-related basis only.

(Emphasis added). Petitioner does not aver that she was first issued a billing number prior to January 1, 1998. Therefore, the exception does not apply to Petitioner. I conclude as a matter of law that Petitioner is not exempt from the application of 42 C.F.R. § 410.76(b)(3) under the Medicare Benefit Policy Manual, CMS Pub. 100-02, ch. 15, § 210. Petitioner is therefore subject to the requirement of 42 C.F.R. § 410.76(b)(3), and there is no genuine dispute that she does not satisfy that requirement.

Petitioner argues that she was permitted to revalidate her enrollment in both 2005 and 2012, and that by revalidating Petitioner CMS effectively waived the certification requirement. P. Br. 6. Whether or not CMS intentionally waived the certification requirement in 2005 and 2012 when revalidating Petitioner is not the issue. Even if I accept Petitioner's contention that CMS intentionally waived the certification requirement in 2005 and 2012, CMS has clearly decided not to waive that requirement on this revalidation. I have no authority to review the exercise of discretion by CMS or its contractor to revoke enrollment where there is a basis for such action. Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff'd, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010). To the extent Petitioner intends to argue that CMS should be barred in this instance from enforcing the regulation, Petitioner is asserting that CMS should be estopped from doing so. As a matter of law, estoppel against the federal government, if available at all, is presumably unavailable absent "affirmative misconduct," such as fraud. See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). Petitioner does not allege affirmative misconduct or fraud by the MAC or CMS and there is no evidence suggesting fraud on the part of the MAC or a staff member or that there was any intent to mislead Petitioner.

Petitioner argues that she is not subject to the Arizona certification requirement because she was licensed as a CNS prior to the effective date of the Arizona requirement. Petitioner asserts that because she is "grandfathered" under the Arizona law she should receive the same treatment by CMS. P. Br. at 6. I accept Petitioner's assertion about Arizona law and its application to Petitioner as true for purposes of summary judgment. However, Petitioner's argument fails as a matter of law as Petitioner cites no legal authority that requires CMS to accord the same treatment to one attempting to enroll in Medicare as a state licensing authority does to one applying for a license in that state.

There are no genuine disputes of material fact and the issues Petitioner raises must be resolved against her as a matter of law. Accordingly, I conclude that CMS has a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(1).

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Summary judgment is also appropriate as to the effective date of revocation of Petitioner's Medicare enrollment and billing privileges. The initial and reconsidered determination set the effective date as March 9, 2018, 30 days after notice of the initial determination. Pursuant to 42 C.F.R. § 424.535(g):

(g) Effective date of revocation. Revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier, except if the revocation is based on Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational. When a revocation is based on a Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational, the revocation is effective with the date of exclusion or debarment, felony conviction, license suspension or revocation or the date that CMS or its contractor determined that the provider or supplier was no longer operational.

(Emphasis added). The notice of initial determination is dated February 7, 2018. Accordingly, pursuant to 42 C.F.R. § 424.535(g), the effective date of the revocation of Petitioner's Medicare enrollment and billing privileges was March 9, 2018.

Petitioner's remaining arguments may be construed as a request for equitable relief. However, I have no authority to grant such relief. US Ultrasound, DAB No. 2302 at 8 (2010). I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

III. Conclusion

For the foregoing reasons, I conclude that there was a basis for revocation of Petitioner's Medicare enrollment and billing privileges effective March 9, 2018.

• 1. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the initial determination, unless otherwise indicated.
• 2. A "supplier" furnishes services under Medicare and includes 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) (42 U.S.C. § 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(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.