Anne Hachmeister Levin, Psy.D., DAB CR5743 (2020)

DECISION

The Medicare enrollment and billing privileges of Petitioner are revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii) and (9),1 effective December 9, 2018.

I.  Background

National Government Services, a Centers for Medicare & Medicaid Services (CMS) Medicare Administrative Contractor (MAC), notified Petitioner by letter dated November 9, 2018, that her Medicare enrollment and billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii) and (9), effective December 9, 2018, based on Petitioner’s noncompliance with 42 C.F.R. § 424.516.2   The MAC advised Petitioner that she was

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subject to a three‑year re-enrollment bar pursuant to 42 C.F.R. § 424.535(c), to begin 30 days after the postmark of CMS’s letter.  CMS Exhibit (Ex.) 1 at 10-11.

Petitioner, through counsel, requested reconsideration by letter dated January 7, 2019.  CMS Ex. 1 at 15-19.  On April 4, 2019, a CMS hearing officer issued a reconsidered determination, upholding the revocation effective December 9, 2018.  The hearing officer upheld revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii) based on violation of 42 C.F.R. § 424.516(a)(2) and revocation pursuant to 42 C.F.R. § 424.535(a)(9) based on violation of 42 C.F.R. § 424.516(d)(1).  CMS Ex. 1 at 1-9.

Petitioner, through counsel, requested a hearing before an administrative law judge (ALJ) by letter dated May 14, 2019 (RFH), and enclosed four affidavits that were signed by Petitioner, her spouse, and two facility representatives.  On May 20, 2019, the case was assigned to me for hearing and decision and an Acknowledgment and Prehearing Order (Prehearing Order) was issued.

On June 18, 2019, CMS filed a motion for summary judgment and brief in support of its motion and CMS Exs. 1 and 2.  On August 16, 2019, Petitioner filed her exchange, including a response in opposition to the CMS motion for summary judgment (P. Br.), with Petitioner’s Exhibits (P. Exs.) 1-9.  CMS filed a reply brief (CMS Reply) on August 28, 2019. 

Petitioner has not objected to my consideration of CMS Exs. 1 and 2, and they are admitted as evidence.  CMS objects to my consideration of P. Exs. 1, 2, and 5 through 9 on grounds that they are new evidence and Petitioner has not shown good cause for offering them for the first time before me as required by 42 C.F.R. § 498.56(e).  CMS asserts that P. Exs. 3 and 4 duplicate (are cumulative of ) affidavits provided in CMS Ex. 1, which were previously submitted and considered at the reconsideration stage.  CMS Br. at 6 n.2; CMS Reply at 3-5.  CMS also argues that some of the exhibits are not relevant.  Petitioner filed no response to the CMS objections. 

P. Exs. 1 and 2 are the declarations of Petitioner and her husband, respectively.  Both declarations are dated August 16, 2019.  The reconsidered determination was dated April 4, 2019, therefore neither declaration existed prior to the reconsidered determination.  If 42 C.F.R. § 498.56(e) applied to declarations and affidavits, the regulation does not require a showing of good cause to offer these documents for the first time at this level, because they did not exist at the time of reconsideration.  However, the plain language of 42 C.F.R. § 498.56(e) refers to offering “new documentary evidence” and has been found not to apply to testimony or testimony substitutes such as affidavits or declarations.  Arkady B. Stern, MD, DAB No. 2329 at 4 n.4 (2010).  Furthermore, a summary judgment procedure was made available to the parties by the Prehearing Order, para. II.G and the parties were advised that standards that have developed related to Fed. R. Civ. P. 56

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would be applied in ruling on a motion for summary judgment.  The submission of affidavits or declarations in support of a motion or opposition to summary judgment is specifically contemplated by Fed. R. Civ. P. 56(c)(1)(A).  Both declarations also contain some relevant evidence.  Accordingly, the CMS objection to P. Exs. 1 and 2 is overruled and both are admitted as evidence. 

P. Exs. 3 and 4 are affidavits of Petitioner and her spouse, respectively.  Copies of the affidavits were considered by the CMS hearing officer on reconsideration.  CMS Ex. 1 at 20-23.  Both were also submitted with the request for hearing.  Both include relevant information.  Because the affidavits are both in evidence at CMS Ex. 1 at 20-23, they are cumulative evidence and it is not necessary to readmit them as P. Exs. 3 and 4 as they are already in evidence.  Accordingly, the CMS objection is sustained and P. Exs. 3 and 4 are not admitted as evidence and neither are the copies of the same affidavits submitted with the request for hearing.

P. Exs. 5 and 6 are affidavits of representatives of the facility where Petitioner provided services.  Copies of the affidavits were also filed with the request for hearing.  The affidavits attest to the nature of Petitioner’s practice.  Neither affidavit has a tendency to make a fact of consequence to the decision in this case more or less probable.  Fed. R. Evid. 401.  I conclude that P. Exs. 5 and 6 are not relevant and they are not admitted for that reason.

P. Ex. 7 is a notice from the National Practitioner Data Bank (NPDB) which informed Petitioner that the Illinois Department of Financial & Professional Regulation suspended her license effective May 7, 2018.  P. Ex. 7.  Petitioner concedes in her declaration that she received the notice on May 8, 2018.  P. Ex. 1 at 2 ¶ 6.  Therefore, the date Petitioner had notice that her license was suspended is not a fact in dispute.  However, P. Ex. 7 shows that the effective date of the license suspension was May 7, 2018, and P. Ex. 7 is relevant for that reason.  Fed. R. Evid. 401.  P. Ex. 7 is admitted as evidence. 

P. Exs. 8 and 9 are email correspondence and an affidavit of Petitioner’s attorney concerning efforts to obtain information and resolve Petitioner’s state tax liability.  Neither document has a tendency to make a fact of consequence to the decision in this case more or less probable.  Fed. R. Evid. 401.  Accordingly, P. Exs. 8 and 9 are not relevant and not admitted for that reason. 

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

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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.3   Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioner is a clinical psychologist and, therefore, a supplier.  Act § 1861(ii) (42 U.S.C. § 1395x(ii)).

The Act requires that the Secretary of Health and Human Services (Secretary) 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 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 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 revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or its Medicare contractor 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.  Generally, a revocation becomes effective 30 days after CMS mails the initial determination revoking Medicare billing privileges, with limited exceptions not relevant here.  42 C.F.R. § 424.535(g).  After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from re-enrolling in the Medicare program for a minimum of one year, but no more than three years.  42 C.F.R. § 424.535(c).4

A supplier whose enrollment and billing privileges have been 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.

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§ 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 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, unless waived.  Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied.  42 C.F.R. § 498.5(l)(2).  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 enrollment and billing privileges in Medicare.

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

My conclusions of law are set forth in bold followed by the undisputed facts and analysis.

1.  Summary judgment is appropriate.

CMS filed a motion for summary judgment.  Petitioner opposes the motion.  A supplier whose enrollment and billing privileges have been revoked has a right to a hearing and judicial review, and a hearing on the record is required under the Act.  Act §§ 205(b) (42 U.S.C. § 405(b)), 1866(h)(1), (j) (42 U.S.C. § 1395cc(h)(1), (j)); 42 C.F.R. §§ 498.3(b)(5), (6), (8), (15), (17), (20), 498.5; 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 unless summary judgment is appropriate, as I conclude it is in this case.

Summary judgment is not automatic upon request but is limited to certain specific conditions.  The Secretary’s regulations at 42 C.F.R. pt. 498 that establish the procedures to be followed in adjudicating Petitioner’s case 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

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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 also has 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. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  A summary judgment procedure is described and made available in the adjudication of this case by the Prehearing Order, para. 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 ALJ 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 5-6 (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, differ 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 4-5 (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 4-5 (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 of persuasion.  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 Fed. App’x 181 (6th Cir. 2005).

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There is no genuine dispute as to a fact material to the determination of the issues in this case.  Whether or not the undisputed facts establish a basis for revocation of Petitioner’s Medicare enrollment and billing privileges is an issue that must be resolved against Petitioner as a matter of law, as are Petitioner’s asserted defenses.  Viewing the evidence before me, as discussed hereafter, in a light most favorable to Petitioner and drawing all inferences in Petitioner’s favor, I conclude that there are no genuine disputes as to any material facts pertinent to revocation under 42 C.F.R. § 424.535(a)(8)(ii) and (9), or to Petitioner’s asserted defenses, that require a hearing in this case.  CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate.

2.  Billing privileges are abused within the meaning of 42 C.F.R. § 424.535(a)(8)(ii) when CMS determines that a provider or supplier has a pattern or practice of submitting claims that do not meet Medicare requirements.

3.  From June 5 through August 7, 2018, Petitioner submitted to Medicare 46 claims for clinical psychology services she delivered to 15 Medicare-eligible beneficiaries during the period May 7 through July 23, 2018, during which period she did not have an active state license to practice and did not meet the enrollment requirement of 42 C.F.R. § 424.516(a)(2) related to state licensure.

4.  CMS has made a prima facie showing of a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii) based on the undisputed facts. 

a.  Undisputed Facts

The facts are undisputed or, for purposes of summary judgment, Petitioner’s averred facts are accepted as true and all favorable inferences are drawn in favor of Petitioner.  I advised the parties in the Prehearing Order that a fact alleged and not specifically denied may be accepted as true for purposes of a motion or cross-motion for summary judgment.  I also advised them that any evidence will be considered admissible and true, unless specific objection is made to its admissibility and accuracy.  Prehearing Order ¶ II.G. 

Petitioner does not dispute that she had to have a license issued by the State of Illinois to deliver clinical psychology services.  Petitioner concedes that on May 8, 2018, she was notified that her license to practice as a clinical psychologist in Illinois was suspended.  P. Ex. 1 at 2 ¶ 6; CMS Ex. 1 at 15, RFH at 1.

It is not disputed that P. Ex. 7 shows that the effective date of suspension was May 7, 2018.  However, it is also undisputed that CMS Ex. 1 at 28 shows that the effective date

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of the suspension of Petitioner’s license was May 4, 2018.  For purposes of summary judgment, I make no determination as to which exhibit is more credible and I accept Petitioner’s evidence which shows that the start of the suspension was May 7, 2018. 

Petitioner concedes that her license suspension did not end until September 28, 2018.  P. Ex. 1 at 3 ¶ 17. 

Petitioner does not and cannot aver that she provided clinical psychology services to Medicare beneficiaries with an unsuspended state license from May 7 through September 28, 2018. 

Petitioner does not dispute that during the period May 7 through July 30, 2018, she delivered psychotherapy services to 15 Medicare-eligible beneficiaries for which she submitted 46 claims for payment to Medicare between June 5 and August 7, 2019.  CMS Ex. 1 at 12-14; P. Br., RFH. 

I accept for purposes of summary judgment, drawing all favorable inferences for Petitioner, that while delivering services to four Medicare-eligible beneficiaries on May 7, 2018, and three Medicare-eligible beneficiaries on May 8, 2018 (CMS Ex. 1 at 12), Petitioner may not have been aware of the suspension of her medical license.  However, Petitioner has not disputed that she was aware of the suspension of her license before claims for her services delivered on May 7 and 8, 2018, were submitted to Medicare for payment on June 5, 2018.  P. Br., RFH, CMS Ex. 1 at 15-18.

Petitioner has not denied that she was aware of her license suspension when all 46 claims for services rendered by her between May 7 and July 23, 2018, were submitted to Medicare for payment.  P. Br., RFH, CMS Ex. 1 at 12-18.

b.  Analysis

The regulation provides:

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

* * * *

(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:

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(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.

(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)(ii) (italics in original).

I conclude that the undisputed facts establish a prima facie case of abuse of billing privileges under 42 C.F.R. § 424.535(a)(8)(ii).  Under the regulation, an abuse of billing privileges occurs if CMS determines, based on consideration of the factors specified by the regulation that CMS deems appropriate, that Petitioner has a pattern or practice of submitting claims that fail to meet Medicare requirements.  The undisputed evidence shows that Petitioner submitted 46 claims related to 15 Medicare-eligible beneficiaries for psychotherapy services she delivered during a period when her state license as a clinical psychologist was suspended.  The claims could not meet Medicare requirements because Petitioner did not meet the state licensure requirement of 42 C.F.R. § 424.516(a)(2) when the services were provided or billed. 

The only determination of CMS or the MAC that is subject to my review in a provider and supplier enrollment case is the reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz., DAB No. 2573 at 7 (2014).  Based on my review of the CMS hearing officer’s decision, it is clear that the hearing officer considered some of the six factors specified by 42 C.F.R. § 424.535(a)(8)(ii), and the factors considered are consistent with and supported by the undisputed facts.  CMS Ex. 1 at 6-7.  The undisputed facts establish that there is a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii).  Accordingly, CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges and the discretion to do so after consideration of the

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factors established by 42 C.F.R. § 424.535(a)(8)(ii) that CMS deemed applicable and appropriate.

5.  CMS has made a prima facie showing of a basis for revocation of Petitioner's billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) based on the undisputed fact Petitioner failed to report an adverse legal action within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii).

I have concluded that CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii) based on her pattern or practice of submitting claims that fail to meet Medicare requirements.  Therefore, it is not necessary to decide whether there is also a basis to revoke Petitioner’s enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9) based on her failure to report adverse legal action within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii).  See, e.g., Daniel Wiltz, M.D. and  Family Healthcare Clinic, APMC, DAB No. 2864 at 12 (2018) (a single basis for revocation is sufficient, “regardless of the existence of any additional bases”).  Nevertheless, I also conclude that there is a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).  Following is my rationale. 

a.  Undisputed Facts

The facts are undisputed or, for purposes of summary judgment, Petitioner’s averred facts are accepted as true and all favorable inferences are drawn in favor of Petitioner.

Petitioner does not dispute that she had to have a license issued by the State of Illinois to deliver clinical psychology services.  Petitioner concedes that on May 8, 2018, she was notified that her license to practice as a clinical psychologist in Illinois was suspended.  P. Ex. 1 at 2 ¶ 6; CMS Ex. 1 at 15, RFH at 1.

It is not disputed that P. Ex. 7 shows that the effective date of suspension was May 7, 2018.  However, it is also undisputed that CMS Ex. 1 at 28 shows that the effective date of the suspension of Petitioner’s license was May 4, 2018.  For purposes of summary judgment, I make no determination as to which exhibit is more credible and I accept Petitioner’s evidence which shows that the start of the suspension was May 7, 2018. 

Petitioner does not deny that she did not notify CMS or the MAC within 30 days of May 8, 2018, the day she learned that her state issued license to practice clinical psychology was suspended effective May 7, 2018.

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b.  Analysis

Physicians, nonphysician practitioners, and physician and nonphysician practice organizations are required to report the following events to CMS or the MAC within 30 days of the event:  

(i)  A change of ownership; 
(ii)  Any adverse legal action; or
(iii)  A change in practice location.  

42 C.F.R. § 424.516(d)(1).  Included in the final rulemaking for 42 C.F.R. § 424.516(d) is the following response from the drafters of the regulation: 

We believe that changes of ownership, adverse legal actions, and changes in practice locations can and should be reported within 30 days of the reportable event.  By reporting these types of reportable events within 30 days, the Medicare program can take the necessary steps to ensure that we are paying physicians and NPPs [nonphysician practitioners] correctly and ensure that only eligible physicians and NPPs are enrolled in the Medicare program.

After reviewing public comments, we are finalizing the provision at proposed § 424.516(d) which would require physicians, NPPs or physician and NPP organizations to notify its [sic] Medicare contractor of a change of ownership, change in practice location or any final adverse action within 30 days of the reportable event.  In addition, we believe that physician and NPP organizations’ and individual practitioners’ failure to comply with the reporting requirements within the time frame described above may result in the revocation of Medicare billing privileges and the imposition of a Medicare overpayment from the date of the reportable change.

* * * *

We are finalizing the provision at proposed § 424.535(a)(9) which would specify that failure to comply with the reporting requirements specified in § 424.516(d) would be a basis for revocation.

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73 Fed. Reg. 69,726, 69,780 (Nov. 19, 2008).  The drafters make clear that failure to report within 30 days a change of ownership, an adverse legal action, or a change in practice location is a basis for CMS to revoke a physician’s billing privileges. 

Petitioner agreed as a condition for enrolling in Medicare to notify the MAC of “[a]ny adverse legal action” within 30 days.  42 C.F.R. §§ 424.500, 424.505, 424.510, 424.516(d)(1)(ii).  Pursuant to 42 C.F.R. § 424.502, suspension or revocation of a state health care license is a final adverse action.  Petitioner does not dispute that she did not report to the MAC within 30 days the suspension of her Illinois license. 

CMS has the discretion to revoke Medicare enrollment if “[t]he provider or supplier did not comply with the reporting requirements specified in § 424.516(d)(1)(ii) . . . .”  42 C.F.R. § 424.535(a)(9).  CMS has made a prima facie showing based on the undisputed facts that Petitioner failed to comply with the reporting requirements of 42 C.F.R. § 424.516(d)(1)(ii), and there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9).

6.  The effective date of revocation in this case is December 9, 2018, 30 days after the date on the notice of the MAC’s initial determination. 

For purposes of summary judgment, I have accepted that Petitioner’s Illinois medical license was suspended effective May 7, 2018.  P. Ex. 7.  The MAC notified Petitioner by letter dated November 9, 2018, of the initial determination to revoke her Medicare enrollment and billing privileges effective December 9, 2018.  CMS Ex. 1 at 10-11.

Pursuant to 42 C.F.R. § 424.535(g), if revocation was based on the license suspension, for example under authority of 42 C.F.R. § 424.535(a)(1), the effective date of the revocation would be the date of the suspension.  However, in this case the revocation is not due to the suspension which ended prior to the MAC’s initial determination.  Rather, revocation is based on abuse of billing privileges and failure to timely report the suspension.  Therefore, application of the general rule of 42 C.F.R. § 424.535(g) that revocation is effective 30 days from the date of the initial determination is appropriate. 

7.  Petitioner has failed to rebut the CMS prima facie showing of a basis for revocation under either 42 C.F.R. § 424.535(a)(8)(ii) or (9).

Petitioner has consistently argued that she was unaware of any outstanding tax liability or the suspension of her license until May 8, 2018.  Petitioner describes a Kafkaesque situation with the Illinois bureaucracy.  RFH at 2; P. Br. at 2-3.  Petitioner’s consternation is understandable.  However, whether or not Petitioner was properly notified of an outstanding tax liability to Illinois or whether she was accorded due process in the determination of that liability are not issues before me.  Whether Petitioner’s medical

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license was properly suspended by the state is also not an issue subject to my review.  My review is limited to determining whether CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges because Petitioner abused her billing privileges by billing for services rendered during a period when she had no state license or because she failed to timely notify CMS of the suspension of her license.  Letantia Bussell, MD, DAB No. 2196 at 12-13 (2008) (ALJ review limited to whether CMS had a legal basis for its action). 

Petitioner argues that her attorney dealing with the state license suspension advised her that he was confident that her license suspension would be vacated retroactively because she was denied due process.  Petitioner asserts that at no time did the attorney tell her that she needed to report the suspension to CMS.  She argues she reasonably thought CMS would have been notified by the state agency that imposed the suspension or the NPDB.  Petitioner argues that she did not think the state agency action was a true suspension and reportable as a final adverse action because her license was only being held pending resolution.  Petitioner argues that she asked her attorney whether she should cease treating patients during the suspension and she was never told she must do so, but she was told there were risks that were not identified.  She argues that she could not abandon her patients under the circumstances based on professional and ethical considerations.  RFH at 3; P. Br. at 5.  Petitioner argues that summary judgment is not appropriate because her “reasonable understanding and state of mind are relevant to a full and fair resolution of this case.”  P. Br. at 5.  Petitioner’s arguments do not establish the existence of a genuine dispute of material fact and the arguments must be resolved against Petitioner as matters of law. 

Neither basis for revocation in this case required that Petitioner have a particular mental state or intent.  Pursuant to 42 C.F.R. § 424.535(a)(8)(ii), no mental state or intent is specified and revocation is based on a CMS determination that Petitioner had a practice or pattern of submitting claims that did not meet Medicare requirements.  There is no requirement that CMS consider Petitioner’s mental state, what she intended, or knew or did not know when submitting claims that failed to meet Medicare requirements.  The Board has repeatedly held that a party’s intent in submitting noncompliant claims, whether through inadvertent error or because a party relied on the services of a billing company, is not relevant in determining whether CMS had a basis for revoking a party’s billing privileges and enrollment under 42 C.F.R. § 424.535(a)(8).  See, e.g., Patrick Brueggeman, D.P.M., DAB No. 2725 at 8-9 (2016); Louis J. Gaefke, D.P.M., DAB No. 2554 at 6-10 (2013); Howard B. Reife, D.P.M., DAB No. 2527 at 5-7 (2013).  Similarly, 42 C.F.R. § 424.535(a)(9) requires only that Petitioner failed to report an adverse legal action or change of practice location in order for CMS to revoke Medicare enrollment and billing privileges.  There is no requirement for CMS to determine whether Petitioner intended not to report or whether she even knew or should have known that she failed to report the adverse legal action.  What Petitioner thought or believed based on advice of

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counsel, her interpretation of the regulations governing Medicare, or her professional and ethical obligations, are not facts that are material because even when accepted as true they constitute no defense.  The undisputed facts support summary judgment in favor of CMS on the issue of whether there is a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii) and (9).  Even accepting Petitioner’s assertions of fact related to her understanding and state of mind as true for purposes of summary judgment, those facts do not constitute material facts in dispute that would rebut the CMS prima facie case or establish an affirmative defense. 

In Adel A. Kallini, MD, DAB No. 2944 at 7-9 (2019), the Board suggested that an advice of counsel defense might be available in certain proceedings before ALJs and the Board.  The Board remanded the case to the ALJ to consider the elements of such a defense that it identified:  whether Kallini acted reasonably and in good faith seeking his attorney’s advice, whether Kallini reasonably relied on his attorney’s advice, and that he actually relied on the advice of counsel.  In this case, Petitioner’s arguments might be construed to be an argument that Petitioner has an affirmative advice of counsel defense that requires fact finding.  However, Petitioner’s pleadings and Petitioner’s affidavit show that is not the case.  Petitioner states in her declaration that “[a]t no time prior to December 9, 2018 did any legal counsel or advisor inform me to notify [CMS] of my license suspension.”  P. Ex. 1 at 4 ¶ 21.  Petitioner also states that “[a]t no time prior to December 9, 2018 did any legal counsel or advisor direct me not to treat patients from May 4, 2018 to September 28, 2018.”  P. Ex. 1 at 4 ¶ 22.  I accept Petitioner’s statements as true for purposes of summary judgment.  However, Petitioner does not attest that she asked counsel whether it was necessary to inform CMS of her license suspension or that she was told by counsel it was not necessary, or that she relied reasonably on that advice.  She states simply that no attorney told her she needed to report.  Similarly, she does not state that she requested a legal opinion about whether it was lawful to file claims with Medicare for services she delivered during the time her license was suspended.  Therefore, Petitioner has failed to show that there is any dispute of material fact as to whether she requested legal advice upon which she reasonably relied.

Petitioner’s argument that she thought the state agency that imposed the suspension or the NPDB would report to CMS is not supported by any statement of fact in her declaration (P. Ex. 1 at 3) or her affidavit submitted with the request for reconsideration (CMS Ex. 1 at 20-21).  I conclude that no dispute of material fact has been identified.  Furthermore, pursuant to 42 C.F.R. § 424.516(d)(1)(ii), the duty to report adverse legal action is upon Petitioner not the state agency or the NPDB.  It is important to understand that the Act and regulations impose upon providers and suppliers the requirement to know and comply with the Act and regulations.  When enrolling in Medicare, providers and suppliers specifically agree they know the requirements of the Act and regulations and that they will comply.  42 C.F.R. § 424.510(d)(3).  As a condition of participating in Medicare, Petitioner agreed to abide by the rules and regulations of participation in

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Medicare.  Participation in Medicare imposes obligations upon suppliers such as Petitioner.  Suppliers must submit complete, accurate, and truthful responses to all information requested in the enrollment application.  42 C.F.R. § 424.510(d)(2)(i).  Pursuant to 42 C.F.R. §§ 424.502 and 424.510(d)(3), a supplier’s application to enroll in Medicare must be signed by an authorized official, i.e., one with authority to bind the provider or supplier both legally and financially.  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 of the Medicare program.  42 C.F.R. § 424.510(d)(3).  The Board has recognized that by enrolling in Medicare, a provider or supplier agrees to be bound by Medicare program instructions.  Proteam Healthcare, Inc., DAB No. 2658 at 11-12 (2015); Realhab, Inc., DAB No. 2542 at 17 (2013).  Furthermore, as a participant in Medicare, Petitioner has “a duty to familiarize [herself] with the legal requirements for cost reimbursement.”  Heckler v. Comm. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 64 (1984).  Petitioner is ultimately responsible as a matter of law for ensuring that her claims for Medicare reimbursement are accurate and for any errors in those claims.  Gaefke, DAB No. 2554 at 5-6 (citing 73 Fed. Reg. 36,448, 36,455 (June 27, 2008)).  Petitioner, as the enrolled supplier, is responsible to ensure compliance with Medicare requirements.  42 C.F.R. §§ 424.510, 424.516(a)(2).  As the drafters of 42 C.F.R. § 424.535(a)(8) stated:

In conclusion, we believe that providers and suppliers are responsible for the claims they submit or the claims submitted on their behalf.  We believe it is essential that providers and suppliers take the necessary steps to ensure they are billing appropriately for services furnished to Medicare beneficiaries.

73 Fed. Reg. at 36,455.  Therefore, I conclude as a matter of law that even if Petitioner attested that she believed the suspension would be reported by someone other than her, she was not relieved of her duty to report the adverse legal action. 

Petitioner argues that she did not think the state agency action was a true suspension and reportable as a final adverse action because her license was only being held pending resolution.  Petitioner does not attest to such a belief in either her declaration (P. Ex. 1) or her affidavit (CMS Ex. 1 at 20-21).  Therefore, no dispute of material fact is raised.  However, even if I accept the assertion of counsel as true, this issue must be resolved against Petitioner as a matter of law.  The regulation requires that Petitioner report within 30 days any “adverse legal action.”  42 C.F.R. § 424.516(d)(1)(ii).  The applicable regulation defines “final adverse action” to include suspension or revocation of a state issued license to provide health care.  42 C.F.R. § 424.502.  Despite the difference in terminology in the regulations, i.e., adverse legal action vs. final adverse action, the duty to report adverse legal action of 42 C.F.R. § 424.516(d)(1)(ii) was sufficiently clear to

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give Petitioner notice that a state action that had the effect of preventing her from practicing medicine for even a short time had to be reported to CMS.  I conclude as a matter of law that the fact Petitioner was confused about whether the suspension of her medical license was a reportable adverse legal action is no defense.  Reporting was clearly required by the regulation as the action was an adverse legal action. 

Petitioner argues that CMS failed to disclose material factors it considered in revoking her billing privileges.  P. Br. at 5-6.  I construe Petitioner’s argument to be that CMS should have exercised its discretion and not revoked Petitioner’s Medicare enrollment and billing privileges.  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 sub nom, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).  The hearing officer that conducted the reconsideration clearly articulated her consideration of some of the factors required for CMS to consider under 42 C.F.R. § 424.535(a)(8)(ii).  CMS Ex. 1 at 5-6.  There is no requirement that all the factors be considered.  Whether I might have weighed those factors differently is not an issue as I have no discretion to review CMS’s exercise of discretion when I conclude there is a basis for revoking Petitioner’s billing privileges.

Petitioner also argues that the instant case is distinguishable from cases cited by CMS in support of the revocation of Petitioner’s Medicare enrollment and billing privileges.  P. Br. at 6-8.  Petitioner argues that, unlike the situation cited by CMS, Petitioner’s case involves only “a temporary suspension arising out of an unpaid, civil income tax liability.”  P. Br. at 7.  Petitioner’s argument is unpersuasive.  The regulations are clear that Petitioner is required to meet state licensure requirements as a condition of billing Medicare for services that she provides to Medicare beneficiaries.  42 C.F.R. § 424.516(a)(2).  In Illinois, a licensed practitioner whose license is suspended is prohibited from practicing during the term of the suspension.  CMS Ex. 2 at 2.  It is undisputed that during her suspension, temporary though it may have been, Petitioner provided services to Medicare beneficiaries and billed Medicare for those services.  CMS Ex. 1 at 12-14, 27-28.  Petitioner’s arguments that her case reflects a minor state tax error later resolved by her counsel, accountants, and state representatives are unavailing in light of her billing for noncompliant claims when she had no license to practice or provide clinical psychology services to Medicare beneficiaries. 

8.  I have no authority to review Petitioner’s re-enrollment bar. 

CMS imposed a re-enrollment bar of three years in this case.  CMS Ex. 1 at 11.  Petitioner argues, for multiple reasons, that the instant facts do not support a three-year re-enrollment bar.  P. Br. at 8-12.  Under regulations in effect at the time Petitioner filed her hearing request, the 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)(1)(i).  There is no statutory or

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regulatory language establishing a right to review of the duration of the re-enrollment bar CMS imposes.  Act § 1866(j)(8); 42 C.F.R. §§ 424.535(c), 424.545, 498.3(b), 498.5.  The Board has held that the duration of a revoked supplier’s re-enrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and, thus, is not subject to ALJ review.  Vijendra Dave, M.D., DAB No. 2672 at 11 (2016).  I thus have no authority to review the length of Petitioner’s three year re-enrollment bar. 

9.  I have no authority to grant relief on equitable grounds.

Petitioner’s arguments against revocation may also be construed to be requests for equitable relief.  However, I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Furthermore, I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).

III.  Conclusion

For the foregoing reasons, the Medicare enrollment and billing privileges of Petitioner are revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii) and (9).

1. Citations are to the 2018 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.
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2. The MAC cited violation of 42 C.F.R. § 424.516(a)(2) as the basis for revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii).  The MAC failed to cite the subsection of 42 C.F.R. § 424.516 that was the basis for revocation under 42 C.F.R. § 424.535(a)(9), but this omission was corrected by the reconsidered determination.
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3. 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.
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4. The regulation was amended after Petitioner filed her request for hearing, extending the maximum duration of the re-enrollment bar to ten years.  84 Fed. Reg. 47,794, 47,854-56 (Sept. 10, 2019) (effective Nov. 4, 2019).
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