Jeremy Turley, DC, DAB CR5399 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a contractor, revoked the Medicare enrollment and billing privileges of Jeremy Turley, DC (Dr. Turley or Petitioner) for noncompliance with enrollment requirements. 42 C.F.R. § 424.535(a)(1).  Dr. Turley requested a hearing to dispute the revocation. The record shows that CMS had sufficient cause to believe that Petitioner's chiropractor license in Indiana was expired, and Dr. Turley did not submit evidence to substantiate that his license was not in fact in an expired status in July and August 2016. Therefore, I affirm CMS's revocation because Dr. Turley failed to show that he was in compliance with enrollment requirements.

I. Case Background and Procedural History

The Indiana Chiropractic Board licensed Dr. Turley as a chiropractor on July 9, 2009. CMS Exhibit (Ex.) 4 at 2. Dr. Turley also enrolled in the Medicare program as a supplier.

On August 29, 2017, a CMS contractor generated an alert indicating that Dr. Turley's chiropractor license was inactive. CMS Ex. 2 at 1. On November 2, 2017, the CMS

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contractor revoked Petitioner's Medicare enrollment and billing privileges, effective December 2, 2017, for the following reasons:

42 CFR § 424.535(a)(1) – Not in Compliance with Medicare Requirements

The Indiana license board shows that your license 08002469A has expired on July 1, 2016.

42 CFR § 424.535(a)(9) – Failure to report

CMS Ex. 3 at 1. This initial determination to revoke also stated that the CMS contractor imposed a three-year re-enrollment bar beginning "30 days after the postmark date of this letter." CMS Ex. 3 at 2. Finally, the initial determination advised Petitioner that he had 30 days to file a Corrective Action Plan (CAP) and 60 days to file a request for reconsideration. CMS Ex. 3 at 1-2. The CMS contractor sent the notice of the revocation to 2614 W Lincoln Highway, Merrillville, IN. CMS Ex. 3 at 1.

In a December 21, 2017 letter, Dr. Turley requested that the CMS contractor reconsider the revocation. He stated:

I am not sure why it came up as expired but I am indeed active and still practicing and had no indication that my license was showing as expired as I paid my [sic] for the renewal of my license in July of 2016 when it expired. I renew every 2 years as a chiropractor and I wouldn't be due for renewal until July 1, 2018.

CMS Ex. 5 at 1.

On January 29, 2018, the CMS contractor issued a reconsidered determination upholding both bases for revocation identified in the initial determination. CMS Ex. 1.

Petitioner timely requested a hearing to dispute the revocation (Hearing Req.) and included documents showing that he paid his biannual Indiana licensing fee on September 5, 2016, and proof of licensure as of February 22, 2018 (Hearing Req. Supporting Documents). Judge Bill Thomas was assigned to this case and, on March 26, 2018, issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order). In conformance with the Pre-hearing Order, CMS filed a brief and motion for summary judgment (CMS Br.) along with seven proposed exhibits (CMS Exs. 1-7). Petitioner also filed a pre-hearing brief (P. Br.) and two exhibits (P. Exs. 1-2).

On November 20, 2018, I was assigned to hear and decide this case.

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II. Decision on the Record

I admit all of CMS's proposed exhibits into the record because Petitioner did not object to any of them.

CMS objected to the documents Petitioner submitted with his hearing request as new evidence. CMS asserted that Petitioner failed to provide good cause for not submitting them earlier. CMS Br. at 2 n.2.

In his brief, Petitioner explained that the CMS contractor mailed the initial determination to his former address, even though he had changed the address years earlier with CMS, and that Petitioner only learned of the revocation when inquiring about Medicare claims that were being denied. Although he still had time to file a timely reconsideration request, he was told by a representative of the CMS contractor that the 30-day period to file a CAP had already passed. P. Br. at 1. Petitioner enclosed a 2014 Medicare Remittance Advice document sent to his currently correct address of 8913 Broadway, Merrillville, IN, to show how long ago CMS knew that this address, and not the one to which the CMS contractor sent the initial determination, was his correct address. P. Ex. 2. CMS did not respond to these arguments from Petitioner.

I conclude that the CMS contractor's failure to mail the initial determination to Petitioner's correct address, later compounded by the misinformation provided to Petitioner as to when his reconsideration request was due, is sufficient good cause under 42 C.F.R. § 498.56(e) for Petitioner to submit further evidence with the hearing request. Although Petitioner's 60-day clock to file a reconsideration request only started when he received the initial determination to revoke (42 C.F.R. § 498.22(b)(3)), the representative of the CMS contractor improperly stated in an email to Petitioner, on December 20, 2017, that Petitioner only had 60 days from the date of the "revocation letter" and that the CMS contractor needed to receive the reconsideration request by January 1, 2018. CMS Ex. 4 at 1. Astoundingly, the representative's statement was consistent with the initial determination, which also incorrectly advised that a hearing request was due "within 60 calendar days of the postmark date of this letter." CMS Ex. 3 at 1. The representative's misstatement deprived Petitioner, who has represented himself throughout this matter, of sufficient time to properly consider what documents he needed to submit with the reconsideration request. Therefore, I overrule CMS's objection, and admit P. Exs. 1-2, as well as the Hearing Req. Supporting Documents, into the record.

The Pre-hearing Order required each party to include the written direct testimony for all witnesses with the pre-hearing exchange and that no hearing would be necessary unless the parties submitted written direct testimony and a party requested to cross-examine at least one witness. Pre-hearing Order ¶¶ 8-11; Civil Remedies Division Procedures (CRDP) §§ 16(a), 19(a), (d). Because neither party submitted any written direct testimony, I issue this decision based on the written record.

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III. Issue

Whether CMS had a legitimate basis to revoke Petitioner's billing privileges under 42 C.F.R. § 424.535(a)(1).

The CMS contractor originally also relied on 42 C.F.R. § 424.535(a)(9) as a second basis for revocation. However, the CMS contractor provided no information in either the initial or reconsidered determinations to substantiate this basis. CMS Ex. 1 at 1-2; CMS Ex. 3 at 1. In this proceeding, CMS declined to defend the CMS contractor's use of this basis to substantiate the revocation and stated that CMS is no longer relying on it to support the revocation. CMS Br. at 4 n.3. Therefore, this is not an issue in this case.1

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

My findings of fact and conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

In order to participate in the Medicare program as a supplier, individuals must meet certain criteria to enroll and receive billing privileges. 42 C.F.R. §§ 424.505, 424.510, and 424.516. CMS may revoke the Medicare billing privileges of suppliers for any of the reasons stated in 42 C.F.R. § 424.535(a).

1. Effective July 1, 2016, Petitioner's chiropractor license, issued by the Indiana Chiropractic Board, expired and remained expired until at least September 5, 2016.

The Indiana Chiropractic Board issued a chiropractor license to Petitioner in 2009. CMS Ex. 4 at 4. On July 1, 2016, Petitioner's chiropractor license expired. CMS Ex. 4 at 4. On September 5, 2016, Petitioner renewed his chiropractor license. Hearing Req. Supporting Documents at 1-2. However, as of November 2, 2017, the Indiana Online Licensing website showed that Petitioner's chiropractor license was expired. CMS Ex. 4

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at 4. In December 2017, the Indiana Online Licensing website indicated that Petitioner's license was active through July 1, 2018. CMS Ex. 4 at 1-2.

2. CMS had a legitimate basis to revoke Petitioner's enrollment and billing privileges in the Medicare program under 42 C.F.R. § 424.535(a)(1), because Petitioner fell out of compliance with enrollment requirements once his Indiana chiropractor license expired.

Chiropractors who participate in the Medicare program are considered "suppliers." See 42 U.S.C. § 1395x(d), (r)(1). The regulation at 42 C.F.R. § 424.535(a)(1) authorizes CMS to revoke a currently enrolled supplier's billing privileges if CMS determines that the supplier no longer meets the enrollment requirements for its supplier type. Among the applicable requirements for a supplier to maintain enrollment is compliance with the applicable federal and state licensure requirements for his supplier type. 42 C.F.R. § 424.516(a)(2). Relevant to this case, the term "physician" includes chiropractors who are licensed as chiropractors by a state. 42 U.S.C. § 1395x(r)(1).

In order for Petitioner to have maintained Medicare enrollment and billing privileges, Petitioner needed to maintain his chiropractor license in Indiana, the state where he practices. However, Petitioner appears to concede that his license expired due to a late renewal payment in 2016:

I have provided bank statements as well as the email confirmation of payment for my license renewal in 2016. The renewal payment is $99.00 due on the 1st of July. You will notice I was late paying the renewal in 2016 but I did pay the additional $50.00 late fee penalty associated with the late renewal payments. I never received anything saying my license was expired at any time after it was paid.

Hearing Req. at 1. Even if Petitioner's statement should not be construed as an admission that he received notice of expiration of his license before he made his late payment, the evidence in the record supports that conclusion. The Indiana Online Licensing website indicated a license expiration date as of July 1, 2016. CMS Ex. 4 at 4.

Further, to the extent that the Indiana Online Licensing website incorrectly showed Petitioner's license as expired in 2017, that situation may, in part, be attributed to Petitioner. The Indiana Online Licensing webpage showing Petitioner's late payment on September 5, 2016, appears to indicate that Petitioner should check back to the website in 24-48 hours to see if the expiration date had changed, cautioning that if it had not, then there may be a problem with his renewal application. Hearing Req. Supporting Documents at 2. While the webpage submitted by Petitioner was cut off and may not

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have been that explicit, it is clear that he was to check the website again in a day or two to make sure his renewal was accepted.

Petitioner asserts that he was unaware that the Indiana Online Licensing website showed that his license was expired and that after learning it did so, based on CMS's rejection of his claims and revocation of his enrollment, his inquiry to the Indiana Chiropractic Board did not yield enough information to explain what had happened. Hearing Req. at 2. However, CMS is correct that it can prevail in this matter based on the fact that Petitioner was not licensed even for a brief period of time while enrolled as a Medicare supplier. As stated by the Departmental Appeals Board in relation to a medical license that was suspended pending disciplinary proceedings:

Even if [the state licensing authority] were to reinstate Dr. Ismail's authorization to practice medicine at the conclusion of its disciplinary proceedings, Dr. Ismail is, as discussed above, unauthorized to practice medicine legally while the suspension is in effect.  Dr. Ismail's inability to practice medicine for any length of time due to the disciplinary actions imposed against him triggered his noncompliance with the Medicare enrollment requirements and authorized revocation of his billing privileges.

Akram A. Ismail, M.D., DAB No. 2429 at 8 (2011).

A supplier must be able to show that the supplier is in compliance with enrollment requirements. 42 C.F.R. § 424.545(c). The initial determination specified that Petitioner was in noncompliance with enrollment requirements because Petitioner's license expired on July 1, 2016. Although Petitioner provided evidence that he paid his license renewal fee in September 2016, he did not show that his license was unexpired from July 2016 to September 2016. Therefore, CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges. 42 C.F.R. § 424.535(a)(1).

3. I do not have authority to consider Petitioner's objection regarding the loss of his opportunity to file a CAP.

Petitioner asserts that he was improperly not allowed to submit a CAP. P. Br. at 2. This may well be the case because the CMS contractor mailed the initial determination to revoke to Petitioner's former address and then told Petitioner that he missed his opportunity to file a CAP. Because Petitioner was revoked based on 42 C.F.R. § 424.535(a)(1), he had a right to submit a CAP. 42 C.F.R. § 405.809(a)(1). However, due to my limited jurisdiction in revocation cases, I have no authority to take any action related to a CAP. A CAP decision is not an initial determination under

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42 C.F.R. §§ 405.809(b)(2), 498.3(b). But CMS should take action to avoid depriving Petitioner of his right to file a CAP.

V. Conclusion

I affirm CMS's revocation of Petitioner's Medicare enrollment and billing privileges.

• 1.Also not an issue in this case is the length of the re-enrollment bar that the CMS contractor imposed on Petitioner. However, it is significant that CMS abandoned one of the bases for revocation because the CMS contractor imposed the maximum re-enrollment bar permitted by the regulations. Although the CMS contractor provided no explanation as to why it chose that length of the re-enrollment bar, the regulatory standard for making that determination requires the CMS contractor to base its decision on the severity of the reason for revocation. 42 C.F.R. § 424.535(c)(1). Under Vijendra Dave, M.D., DAB No. 2672 at 9 (2016), I do not have jurisdiction to modify the length of the re-enrollment bar; however, given the fact that the severity of the basis for revocation has necessarily been reduced, CMS ought to consider again whether a three-year re-enrollment bar is still appropriate.