Judith E Wessely CNS, DAB CR5101 (2018)

DECISION

The Medicare enrollment application of Petitioner, Judith E. Wessely, CNS, is denied pursuant to 42 C.F.R. § 424.530(a)(1).1

I.  Background

Novitas Solutions, a Medicare administrative contractor (MAC) for the Centers for Medicare & Medicaid Services (CMS), notified Petitioner by letter dated May 31, 2017, that her revalidation application to enroll in Medicare as a Clinical Nurse Specialist was denied.  The MAC cited 42 C.F.R. § 410.76(b)(1)(2)(3), stating that Petitioner did not meet all the requirements of the regulations.  The MAC did not state the basis for denial under 42 C.F.R. § 424.530(a).  The MAC advised Petitioner that she could file a corrective action plan or a request for reconsideration.  CMS Exhibit (Ex.) 1 at 11-15.

Petitioner requested reconsideration on July 24, 2017.  CMS Ex. 1 at 9-10.  On October 25, 2017, the MAC issued a reconsidered determination upholding the denial of Petitioner’s enrollment pursuant to 42 C.F.R. § 424.530(a)(1) on grounds that she did not

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meet the requirement of 42 C.F.R. § 410.76(b)(3) to be certified as a clinical nurse specialist by a national certifying body that has established standards for clinical nurse specialists and is approved by the Secretary.  CMS Ex. 1 at 1-2.

On November 20, 2017, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ).  On November 22, 2017, the case was assigned to me for hearing and decision, and I issued an Acknowledgment and Prehearing Order (Prehearing Order).

On December 22, 2017, CMS filed a motion for summary judgment and prehearing brief and CMS Exs. 1 and 2.  On February 6, 2018, I dismissed Petitioner’s request for hearing for abandonment.  On March 5, 2018, I found good cause to vacate the February 6, 2018 dismissal and reinstated Petitioner’s request for hearing.  On March 22, 2018, Petitioner filed a prehearing brief and response in opposition to the CMS motion for summary judgment and a cross-motion for summary judgment (P. Br.), with Petitioner’s exhibits (P. Exs.) 1 through 3.  On April 9, 2018, CMS filed a reply (CMS Reply) to Petitioner’s cross-motion for summary judgment.

Petitioner does not object to my consideration of CMS Exs. 1 and 2 (P. Br. at 6) and they are admitted as evidence.  CMS objects to my consideration of P. Ex. 1 through 3 on grounds that they are submitted in support of a request for equitable relief; are not relevant to the issue of whether there is a basis for denial of enrollment; and Petitioner has not shown good cause for offering those exhibits for the first time before me.  CMS Reply at 6-8.  P. Exs. 1 through 3 are letters describing the excellent mental health services Petitioner has provided in the past.  The issue I may decide in this case is limited to whether or not CMS and the MAC had a basis to deny Petitioner’s enrollment in Medicare.  Relevant evidence is any evidence that has a tendency to make a fact of consequence to the issue I may decide, more or less probable than without the evidence.  Fed. R. Evid. 401.  I conclude that P. Exs. 1 through 3 are not relevant to the issue that I may decide as they are not evidence of when Petitioner was first enrolled in Medicare and granted billing privileges.  I conclude it is not necessary for me to analyze the other grounds for exclusion of the evidence cited by CMS.  P. Exs. 1 through 3 are not 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

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suppliers.2  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioner applied to enroll and obtain billing privileges as a clinical nurse specialist, a supplier under the Act.

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 determinations, such as denial of enrollment and 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.

The Secretary has delegated the authority to accept or deny enrollment applications to CMS.  Pursuant to the Secretary’s regulations, CMS may deny a provider’s or supplier’s enrollment application for any of the reasons set out in 42 C.F.R. § 424.530(a).  In this case, CMS has denied Petitioner’s application under 42 C.F.R. § 424.530(a)(1) because CMS determined that Petitioner did not meet the requirements to enroll as a clinical nurse specialist under 42 C.F.R. § 410.76(b)(3).

A prospective supplier whose enrollment application has been denied may request reconsideration, and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. § 424.545(a).  A prospective supplier submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a), (b).  CMS or its contractor must give notice of its reconsidered determination to the prospective supplier, giving the reasons for its determination, specifying the conditions or requirements the prospective 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 prospective supplier, the prospective 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

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under the Act.  Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  The prospective supplier bears the burden to demonstrate that the supplier 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 denial of Petitioner’s application to enroll in the Medicare program.

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

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

1. Summary judgment is appropriate.

A supplier, such as Petitioner, denied enrollment in Medicare and billing privileges, has a right to a hearing and judicial review.  A hearing on the record is before an ALJ is required under the Act.  Act §§ 205(b), 1866(h)(1), (j); 42 C.F.R. §§ 498.3(b)(17), 498.5(l); 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.  Petitioner has not waived oral hearing.

The parties have filed cross-motions for summary judgment.  Summary judgment is not automatic but is limited to certain specific conditions.  The procedures applicable to the adjudication of this case are at 42 C.F.R. pt. 498.  The regulations do not establish or recognize a summary judgment 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 also recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. Pro. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order.  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.

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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 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (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 & 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 satisfy 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 & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

In this case, I conclude that Petitioner has failed to show that there is genuine dispute as to any material fact pertinent to a denial of enrollment under 42 C.F.R. § 424.530(a)(1) that requires a trial.  Petitioner has failed to offer evidence from which I might draw the favorable inference that she was issued a billing provider number prior to January 1, 1998, so that she is not subject to the requirements of 42 C.F.R. § 410.76(b), which was effective January 1, 1999.  The undisputed material facts establish a basis for the denial of Petitioner’s enrollment in Medicare under 42 C.F.R. § 424.530(a)(1) as a matter of law.  Accordingly, I conclude that summary judgment is appropriate.

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2. Petitioner has failed to present evidence from which I can infer that she was issued a billing provider 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 denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(1) because Petitioner does not meet the requirements of 42 C.F.R. § 410.76(b)(3) and she is not exempt from the requirement.

5. The issue for hearing and decision is whether there is a basis for denial of Petitioner’s Medicare enrollment and, if there is a basis for denial, my jurisdiction does not extend to review whether CMS properly exercised its discretion to deny Petitioner’s Medicare enrollment application.

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 certified nurse specialists to enroll in Medicare.  The regulation required that:  (1) the certified nurse specialist be a registered nurse licensed in the state where he or she practices and must be authorized to perform services of a clinical nurse specialist 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 clinical nurse specialist 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); 67 Fed. Reg. 79,966, 80,041 (Dec. 31, 2002).  CMS now identifies acceptable certifying bodies by policies set forth in the Medicare Benefit Policy Manual, CMS Pub. 100-02, chap. 15, § 210 and the Medicare Program Integrity Manual, CMS Pub. 100-08, chap. 15, § 15.4.4.5.  According to CMS policy, acceptable certifying bodies for clinical nurse specialists at the advance practice level are:

• 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

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• 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 clinical nurse specialist.  There is no dispute that Petitioner is a licensed registered nurse and she is authorized under state law to provide psychiatric nursing services or psychotherapy, which is required by 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)(2).  The MAC’s reconsidered determination shows that Petitioner’s revalidation enrollment application was denied because she is not certified as a clinical nurse specialist by a “recognized national certifying body,” which is required by 42 C.F.R. § 410.76(b)(3).  CMS Ex. 1 at 2.  There is no dispute that Petitioner is not certified as required by 42 C.F.R. § 410.76(b)(3).

Petitioner argues in her request for a reconsidered determination, her request for hearing, and her cross-motion for summary judgment that she is exempt from the requirement of 42 C.F.R. § 410.76(b)(3) to be certified as a clinical nurse specialist by one of the national certifying bodies recognized by the Secretary and CMS.  CMS Ex. 1 at 9-10; RFH; P. Br. at 1-4.  Petitioner cites the policy of CMS, which is currently set forth in the Medicare Benefit Policy Manual, that:

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.

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.

CMS Pub. 100-02, chap. 15, § 210 (emphasis added).  Petitioner argues that she was providing psychiatric nursing services to Medicare-eligible beneficiaries prior to January 1, 1998, and under the CMS policy she should be permitted to enroll in Medicare and be granted billing privileges so that she can continue providing such services even though she does not satisfy the requirement of 42 C.F.R. § 410.76(b)(3).  Petitioner filed her affidavit with her request for a reconsidered determination.  Petitioner states in her affidavit that she obtained her master of science in nursing degree from the University of Alabama in Birmingham on August 27, 1978, in the specialty of psychiatric nursing.  She

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attests that On October 9, 1995, she was licensed by the Texas Board of Nurse Examiners as an Advanced Nurse Practitioner entitled to be known as a certified nurse specialist in psychiatric/mental health.  She attests that she began providing psychiatric service for Medicare patients at Patriot Heights Health Care Center in San Antonio (Patriot Heights) in 1997.  She also attests that she submitted bills that were paid by Medicare for services rendered prior to 1998.  CMS Ex. 1 at 17-18, 60-63.  Petitioner does not attest that she was actually enrolled in Medicare prior to January 1, 1998, or that she was issued a billing provider number prior to January 1, 1998.  Because Petitioner does not state that she was actually enrolled in Medicare and issued a billing provider number prior to January 1, 1998, I cannot draw any favorable inference for her in that regard.  Petitioner also submitted at reconsideration the affidavit of Mary Bradley.  Ms. Bradley attests that she was the director of social services at Patriot Heights from 1997 to 2004.  She also attests that she met Petitioner there and she knew Petitioner provided psychotherapy to patients at Patriot Heights.  CMS Ex. 1 at 19.  Ms. Bradley did not state that she believed or knew Petitioner was enrolled with billing privileges prior to January 1, 1998, and she does not indicate that she had any knowledge of Petitioner providing services to any Medicare-eligible beneficiaries or receiving reimbursement from Medicare either directly or to her employer under a reassignment as authorized by 42 C.F.R. pt. 424, subpt. F.  The two affidavits submitted by Petitioner do not trigger a favorable inference that Petitioner was actually enrolled in Medicare with billing privileges prior to January 1, 1998, even though I accept as true the statements in both affidavits.3

The evidence shows that Petitioner applied to enroll as a supplier in about November 1998 and she was enrolled in Medicare effective November 6, 1998.  CMS Ex. 1 at 70‑82.  This evidence does not trigger a favorable inference that CMS or its contractor considered the issue and determined at that time that Petitioner was exempt from the requirement of 42 C.F.R. § 410.76(b)(3).  No inference is triggered because Petitioner’s application was submitted and approved effective November 6, 1998, before the January 1, 1999 effective date of the new 42 C.F.R. § 410.76.  63 Fed. Reg. 58,814.

The evidence also shows that on July 18, 2011, a prior Medicare contractor, approved a corrective action plan filed by Petitioner on April 7, 2011, in response to a denial of her

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revalidation enrollment.  CMS Ex. 1 at 20-22.  The July 18, 2011 contractor notice does not reflect whether or not the contractor considered whether Petitioner was subject to 42 C.F.R. § 410.76(b)(3).  However, I accept that the July 18, 2011 contractor notice supports a favorable inference that the Medicare contractor did not apply the requirement of 42 C.F.R. § 410.76(b)(3) to deny Petitioner enrollment in 2011.  The reason the prior contractor did not apply 42 C.F.R. § 410.76(b)(3) to Petitioner at the time is not discussed in the contractor’s decision.  I cannot infer based on the contractor notice that the contractor chose not to apply 42 C.F.R. § 410.76(b)(3) on grounds that the contractor found that Petitioner was enrolled in Medicare with billing privileges prior to January 1, 1998 and excepted from the application of that regulation.

Based on the evidence before me, no inference favorable to Petitioner is triggered that she was actually enrolled in Medicare with billing privileges prior to January 1, 1998.  Because there is no inference that Petitioner was enrolled prior to January 1, 1998, I conclude as a matter of law that she is not exempt from the application of 42 C.F.R. § 410.76(b)(3) under Medicare Benefit Policy Manual, CMS Pub. 100-02, chap. 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.  Accordingly, there is a basis for denial of Petitioner’s enrollment and billing privileges pursuant to 42 C.F.R. § 424.530(a)(1) for noncompliance with 42 C.F.R. § 410.76(b)(3).  I have no authority to review the exercise of discretion by CMS or its contractor to deny 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).

Petitioner’s arguments may be construed to be that the government is estopped from denying Petitioner’s enrollment based on the prior contractor’s decision to enroll Petitioner in 2011.  I note that the evidence does not show that the prior contractor actually considered the applicability of 42 C.F.R. § 410.76.  Further, 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., Pacific Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  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.

Petitioners’ arguments may also be construed as a request for equitable relief but 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).

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III.  Conclusion

For the foregoing reasons, I conclude that there was a basis to deny Petitioner’s application to enroll in Medicare pursuant to 42 C.F.R. § 424.530(a)(1).

• 1. Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.
• 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.
• 3. When considering a case on summary judgment, I do not weigh the evidence. I note for the record that the evidence in this case includes evidence that Petitioner filed her initial Medicare enrollment application in about November 1998. CMS Ex. 1 at 72-82. Petitioner was enrolled as a supplier effective November 6, 1998, based on her November 1998 application. CMS Ex. 1 at 70. But I do not on summary judgment weigh this evidence against Petitioner’s affidavit to judge the credibility of Petitioner’s possible testimony. I also note that Petitioner has presented no document showing that she had been enrolled in Medicare prior to January 1, 1998, or any evidence of payments or income from Medicare prior to January 1, 1998.