Kelly B. Kim-Campo, PT, a/k/a Kelly Campo, DAB CR5510 (2020)

DECISION

The Medicare enrollment and billing privileges of Petitioner1 are revoked pursuant to 42 C.F.R. § 424.535(a)(4).2 Revocation is effective April 20, 2018, 30 days after the

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March 21, 2018 notice of the initial determination. Petitioner was barred from reenrollment for one year.

I. Procedural History and Jurisdiction

On March 21, 2018, Noridian Healthcare Solutions, a Medicare administrative contractor (MAC), notified Petitioner that his Medicare enrollment and billing privileges were revoked effective April 20, 2018, and that he was barred from reenrolling in Medicare for one year. The MAC cited 42 C.F.R. § 424.535(a)(4) and (9) as authority for the revocation. CMS Ex. 1 at 48-49.

Petitioner requested reconsideration on or about May 18, 2018. CMS Ex. 1 at 50-51. On July 18, 2018, a CMS hearing officer issued a reconsidered determination upholding revocation pursuant to 42 C.F.R. § 424.535(a)(4) and (9). CMS Ex. 1 at 1-7.

Petitioner filed a request for hearing before an administrative law judge (ALJ) on September 16, 2018. The case was docketed and assigned to me. On September 24, 2018, an Acknowledgment and Prehearing Order (Prehearing Order) was issued.

CMS filed a motion for summary judgment on October 24, 2018 (CMS Br.) with CMS Ex. 1. On November 20, 2018, Petitioner filed a response in opposition to the CMS motion (P. Br.) and P. Exs. 1 through 4. CMS waived filing a reply brief on February 8, 2019. No objections have been made to my consideration of CMS Ex. 1 and P. Exs. 1 through 4, and they are admitted and considered as evidence.

II. Discussion

A. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B. 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.3 Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).

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Petitioner, a physical therapist, is a supplier. Act § 1861(d), (p); 42 C.F.R. §§ 410.3(a)(1), 410.60.

The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for enrolling providers and suppliers in Medicare, including the requirement to provide 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)). The U.S. Supreme Court recently clarified that under sections 1871(a)(1)-(2) and (b) of the Act (42 U.S.C. § 1395hh(a)(1)-(2), (b)), the Secretary must use notice and comment rulemaking under the Administrative Procedure Act, 5 U.S.C. § 553, in order to impose requirements upon regulated entities that are intended to have the force and effect of law. Act § 1871(a)(2); Azar v. Allina Health Servs., 587 U.S. ___, 139 S.Ct. 1804 (2019).

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS. 42 C.F.R. § 424.535. CMS or the 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. Pursuant to 42 C.F.R. § 424.535(a)(4), CMS may revoke a supplier’s enrollment and billing privileges if CMS determines the “supplier certified as ‘true’ misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.” Pursuant to 42 C.F.R. § 424.535(a)(9), CMS may revoke a supplier’s enrollment and billing privileges when a supplier fails to comply with the reporting requirements in 42 C.F.R. § 424.516(d)(1)(ii) and (iii). Those reporting requirements, as discussed in more detail hereafter, provide that physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations must report any adverse legal action or a change in practice location to their MAC within 30 days. 42 C.F.R. § 424.516(d)(1)(ii), (iii). 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 the MAC mails notice of its determination to the supplier, subject to some exceptions not applicable in this case. 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).

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A supplier whose enrollment and billing privileges have been revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498. 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 the supplier of its 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 (Board). Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), 498.5(l)(2). 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). A hearing on the record, also known as an oral hearing, is required under the Act. Crestview Parke Care Ctr. v. 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 Medicare enrollment.

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

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

1. Summary judgment is appropriate.

CMS requests summary judgment, and Petitioner opposes the motion. 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 sections 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, also known as an oral hearing, 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. Petitioner has not filed a written waiver of the right to appear and present evidence. Because Petitioner has not waived the right to oral hearing, disposition on the written record alone is not permissible unless summary judgment is appropriate.

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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 procedure 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 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 Federal Rules of Civil Procedure do not apply in administrative adjudications such as this. However, the Board has accepted that Rule 56 of the Federal Rules of Civil Procedure and related court decisions provide useful guidance for determining whether summary judgment is appropriate. The Prehearing Order advised the parties that a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and that court decisions related to Rule 56 may be applied. Prehearing Order ¶¶ II.D, G.

Summary judgment is appropriate when there is no genuine dispute as to any 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 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 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

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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).

There is no genuine dispute as to any material fact in this case. CMS has no basis to revoke pursuant to 42 C.F.R. § 424.535(a)(9) pursuant to CMS policy, and this issue must be resolved in favor of Petitioner as a matter of law. However, there are no genuine disputes of material fact related to revocation pursuant to 42 C.F.R. § 424.535(a)(4), and Petitioner’s defenses must be resolved against him as a matter of law. The issues in this case that require resolution are issues of law related to the interpretation and application of the regulations that govern enrollment and billing privileges in the Medicare program and application of the law to the undisputed facts of this case. Therefore, summary judgment is appropriate as to both the bases for revocation and the effective date of revocation.

2. Certifying as true information on a Medicare enrollment application or an application to maintain enrollment that is misleading or false is a basis for revocation of Medicare enrollment and billing privileges. 42 C.F.R. § 424.535(a)(4).

3. There is a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) because Petitioner failed to specifically list a final adverse action, i.e., the revocation of his Washington physical therapist (PT) license, on the revalidation enrollment application (CMS-855I) submitted via the Medicare Provider Enrollment, Chain, and Ownership System (PECOS), the certification statement for which Petitioner signed on February 15, 2018, certifying that the information in the application was true, correct, and complete.

4. There is no basis for revocation of Petitioner’s billing privileges pursuant to42 C.F.R. § 424.535(a)(9) based on failure to report an adverse legal action within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii), because that basis for revocation is not applicable to Petitioner, a PT, pursuant to CMS policy.

5. Revocation of the Medicare enrollment and billing privileges of Petitioner is effective April 20, 2018, 30 days from the date of the March 21, 2018 notice of initial determination to revoke. 42 C.F.R. § 424.535(g).

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a. Undisputed Facts

Petitioner does not dispute the material facts identified by CMS in its brief, paragraphs 1 through 10. P. Br. at 2. The following findings of undisputed material facts are based on those facts alleged to be undisputed by CMS and Petitioner or, that are not specifically disputed by the parties. CMS Br. at 2-4; P. Br. at 2-4; Prehearing Order at II.G (evidence accepted as admissible and true absent specific objection). The material facts necessary for resolution of this case are not disputed or are accepted as true with all favorable inferences drawn in Petitioner’s favor for purposes of summary judgment.

Petitioner is a PT licensed by the State of Washington. CMS Ex. 1 at 19.

On December 17, 2007, the Washington licensing board (state board) charged Petitioner with engaging in an impermissible relationship with a patient. CMS Ex. 1 at 21-23.

On April 15, 2008, Petitioner entered an agreed order with the state board in which he admitted to the impermissible relationship with a patient and agreed to a suspension of his PT license for two years beginning March 1, 2008. CMS Ex. 1 at 26-30.

On September 22, 2009, the state board reinstated Petitioner’s PT license. CMS Ex. 1 at 32-34.

On or about April 1, 2010, Petitioner submitted a Medicare enrollment revalidation application in which he disclosed the suspension of his PT license by the state board. P. Br. at 3 ¶¶ 10-11; P. Ex. 1 ¶¶ 16-17.

On May 22, 2013, Petitioner signed a CMS-855I to revalidate his Medicare enrollment as a PT in private practice. CMS Ex. 1 at 8-16.

In the May 22, 2013 CMS-855I, Petitioner responded “no” to the question of whether he had ever been subject to one of the final adverse legal actions listed in the CMS-855I. CMS Ex. 1 at 13. However, CMS failed to place in evidence the page from the CMS-855I that listed final adverse legal actions that had to be reported.

Petitioner signed the certification statement for the CMS-855I on May 22, 2013. CMS Ex. 1 at 16. However, CMS did not place in evidence a copy of the certification language from the form.

Petitioner’s office administrator submitted a Medicare enrollment revalidation application using PECOS on February 14, 2018. CMS Ex. 1 at 44, 50; P. Br. at 4 ¶ 15; P. Ex. 1 ¶ 19.

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In section 3 of the February 14, 2018 PECOS application, Petitioner’s office administrator responded “no” to the question of whether he had ever been subject to a “final adverse action.” CMS Ex. 1 at 46; P. Ex. 1 ¶ 19.

On February 15, 2018, Petitioner signed a statement certifying as true, correct, and complete all the information contained in the February 14, 2018 PECOS application. CMS Ex. 1 at 38-39; P. Ex. 1 ¶ 19.

The MAC notified Petitioner by letter dated March 21, 2018, of the initial determination to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) for falsely stating he had no history of adverse legal action, noting that suspension of a license is a final adverse action as defined by 42 C.F.R. § 424.502. The MAC also advised Petitioner that it revoked his Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) because he did not report the suspension of his PT license within 30 days of the suspension as required by 42 C.F.R. § 424.516. CMS Ex. 1 at 48-49.

CMS upheld revocation pursuant to 42 C.F.R. § 424.535(a)(4) and (9) on July 18, 2018. CMS Ex. 1 at 1-7. The CMS hearing officer cited the failure to report in the February 14, 2018 PECOS application as the basis for revocation under 42 C.F.R. § 424.535(a)(4) and the failure to report within 30 days of the suspension as required by 42 C.F.R. § 424.516(d)(1)(ii) as the basis for revocation pursuant to 42 C.F.R. § 424.535(a)(9). CMS Ex. 1 at 5. The CMS hearing officer did not approve revocation based on the May 22, 2013 CMS-855I, and the facts related to that revalidation application are not considered further.

b. Analysis

CMS revoked Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) and (9). I conclude that CMS had a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(4) but that 42 C.F.R. § 424.535(a)(9) does not apply to Petitioner, a PT, pursuant to CMS policy.

CMS and the MAC are authorized to revoke Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) when the “provider or supplier certified as ‘true’ misleading or false information on the enrollment application.” Pursuant to the 2017 revision of 42 C.F.R. § 424.502 in effect on February 15, 2018, when Petitioner signed the certification statement for the February 14, 2018 PECOS enrollment application:

Final adverse action means one or more of the following actions:

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(1) A Medicare-imposed revocation of any Medicare billing privileges;

(2) Suspension or revocation of a license to provide health care by any State licensing authority;

(3) Revocation or suspension by an accreditation organization;

(4) A conviction of a Federal or State felony offense (as defined in § 424.535(a)(3)(i)) within the last 10 years preceding enrollment, revalidation, or re-enrollment; or

(5) An exclusion or debarment from participation in a Federal or State health care program.

(Emphasis in original). The second definition of a final adverse action is satisfied when a state licensing authority suspends or revokes a state-issued license to provide health care. Petitioner does not dispute that physical therapy is health care within the meaning of the regulation. The definition imposes no time limit related to when the suspension or revocation occurred. There is no dispute that the question under section 3 of the PECOS application filed on February 14, 2018, and certified by Petitioner on February 15, 2018, asked “[h]as a final adverse action ever been imposed against an applicant under any current or former name or business entity?” There is also no dispute that the response entered to the question in section 3 was “[n]o” and that was the response certified as true by Petitioner. CMS Ex. 1 at 36-39, 46. The question posed on the application included no time limit and made no exception for previously reported information. Petitioner’s answer to the question posed in section 3 of the PECOS application was false, and Petitioner falsely certified that it was true. Accordingly, there is 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)(4).

There is, however, no basis for revocation pursuant to 42 C.F.R. § 424.535(a)(9). The regulation in effect when the MAC issued the initial determination authorized CMS to revoke the enrollment and billing privileges of a supplier who “did not comply with the reporting requirements specified in [42 C.F.R.] § 424.516(d)(1)(ii) and (iii).” Section 424.516(d) specifies “[r]eporting requirements for physicians, non-physician practitioners, and physician and nonphysician practitioner organizations.” Nowhere in 42 C.F.R. pt. 424 does CMS clearly define “nonphysician practitioner” as used in section 42 C.F.R. § 424.516(d), and thereby, for purposes of section 424.535(a)(9). See, e.g., 42 C.F.R. § 424.502 (Definitions). CMS, however, clarified its interpretation of the regulation via policy. CMS policy provides that 42 C.F.R. § 424.535(a)(9):

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[A]pplies only to physicians, physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, certified nurse-midwives; clinical social workers; clinical psychologists; registered dietitians or nutrition professionals, and organizations (e.g. group practices) consisting of any of the categories of individuals identified in this paragraph.

Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, § 15.27.2A.9 (eff. Jan. 1, 2018) (emphasis added); see Act § 1842(b)(18)(C) (defining “practitioner” to include the above-listed types of suppliers); 42 C.F.R. § 405.400 (definition of “practitioner”); see also 42 C.F.R. §§ 424.57(d)(15)(i)(C),(D) (distinguishing requirements for “[p]hysicians and non-physician practitioners as defined in section 1842(b)(18) of the Act” from requirements for “[p]hysical and occupational therapists”); 424.518(a)(1)(i), (b)(1)(vii) (placing “nonphysician practitioners” in a limited risk category of scrutiny and “[p]hysical therapists enrolling as individuals” in a moderate risk category).

In its brief, CMS argues that Petitioner identified himself as a nonphysician practitioner in completing enrollment applications and that Petitioner’s self-identification controls his status as a nonphysician practitioner. CMS Br. at 8. CMS cites specifically CMS Ex. 1 at 12 (the 2013 enrollment application) and at 45 (the PECOS enrollment application). The CMS argument is without merit and counsel for CMS appears to be unaware of the potential for abuse such “self-designation” poses. CMS creates the language used in its enrollment application and should be held responsible to ensure that its application forms are clear and consistent with CMS policies, the regulations, and the Act. The clear CMS policy set forth in MPIM § 15.27.2A.9 must control in this case – a policy that counsel for CMS does not even address in briefing. Pursuant to CMS policy, a PT is not listed among those practitioners CMS has publicly announced are nonphysician practitioners. The fact that Petitioner completed an application and provided certain information by checking a box or filling a blank on a form cannot supersede the clear statement of CMS policy, which shows a PT is not included in the category of nonphysician practitioners. Accordingly, I conclude that CMS has no basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9), because as a matter of CMS policy, that provision is not applicable to Petitioner, who is a PT.

I have concluded that there was a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4). Having found that there is a basis for revocation, I have no authority to review the exercise of discretion by CMS to revoke Petitioner’s Medicare enrollment and billing privileges. Dinesh Patel, M.D., DAB No. 2551 at 10-11 (2013); Fady Fayad, M.D., DAB No. 2266 at 16 (2009); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 16-17, 19 (2009).

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Petitioner raises several legal arguments that I conclude have no merit. Petitioner argues that he had no intent to provide false information or mislead CMS. However, for revocation pursuant to 42 C.F.R. § 424.535(a)(4), no specific intent to provide false information is required. See, e.g., Sandra E. Johnson, CRNA, DAB No. 2708 at 7 (2016) (no intent to provide false information required, proof that fact occurred is sufficient); Mark Koch, D.O., DAB No. 2610 at 4 (2014) (unintentional or inadvertent omission is not a defense).

Petitioner argues that he previously disclosed the suspension of his Washington PT license to CMS. Petitioner argues that he had “good reason to believe” that the revalidation application only requested disclosure of information not previously disclosed. P. Br. at 6-7. I conclude this argument is without merit. The question under section 3 of the PECOS application filed on February 14, 2018, clearly asked “[h]as a final adverse action ever been imposed against an applicant under any current or former name or business entity?” CMS Ex. 1 at 46. No reasonable reading of the question permits a conclusion that the question was seeking information related only to an adverse action that occurred since the last enrollment or revalidation application.

Petitioner argues that the terms “final adverse action” and “final adverse legal action” are not clearly defined and not consistently used in CMS forms and regulations. Petitioner argues he should not be prejudiced by defective CMS drafting. Petitioner agrees that a license suspension is a “final adverse action” under 42 C.F.R. § 424.502. However, he argues that there is no definition of “adverse legal action” that specifies that license suspension is a “final adverse legal action.” Petitioner correctly notes that section 3 of the CMS-855I (CMS Ex. 1 at 13) asked Petitioner whether he ever had a “final adverse legal action” imposed against him.4 Petitioner implies that because “final adverse legal action” is not defined in the regulations or the CMS-855I, he was not on notice that the suspension of his Washington PT license was a final adverse legal action that had to be reported. P. Br. at 7. Petitioner overlooks, however, that while section 3 of the PECOS application may be titled “final adverse legal actions,” the question posed correctly asks whether the applicant has ever been subject to a “final adverse action.” CMS Ex. 1 at 46. Petitioner concedes that a license suspension is a final adverse action under 42 C.F.R. § 424.520. P. Br. at 7. Accordingly, I conclude Petitioner’s feigned confusion provides him no defense.

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Petitioner argues that his license was not suspended based on the commission of a felony or based on a determination that he posed any danger to the health, safety, or welfare of the public. P. Br. at 9-10. Revocation pursuant to 42 C.F.R. § 424.535(a)(4) does not require a felony conviction; any finding by CMS of prejudice to the Medicare program or its beneficiaries; or a danger to the health, safety, or welfare of the public. Petitioner’s failure to satisfy reporting requirements triggers the authority to revoke. There is no requirement under 42 C.F.R. § 424.535(a)(4) for CMS or me to consider potential impact upon the Medicare program or its beneficiaries or whether Petitioner poses any risk. Petitioner also argues revocation serves no remedial purpose. P. Br. at 10. Petitioner is incorrect. Truthful and complete answers are required in applications to participate in Medicare. Revocation of Medicare enrollment is a deterrent to giving false answers.

Accordingly, 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)(4), and Petitioner has failed to either rebut the prima facie showing or to establish an affirmative defense.

Summary judgment is also appropriate as to the effective date of revocation. Pursuant to 42 C.F.R. § 424.535(g), revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier, except under certain facts not present in this case. The notice of the initial determination to revoke was dated March 21, 2018. CMS Ex. 1 at 48-49. It is not subject to dispute that the thirtieth day after March 21, 2018, was April 20, 2018. Accordingly, I conclude that April 20, 2018, is the correct revocation date.

The MAC imposed a one-year bar to reenrollment. CMS Ex. 1 at 49. When 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). There is no statutory or regulatory language establishing a right to review of the duration of the reenrollment bar CMS imposes. Act § 1866(j)(8) (42 U.S.C. § 1395cc(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 reenrollment 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 10-11 (2016).

To the extent that Petitioner’s arguments may be construed as a request for equitable relief, I have no authority to grant such relief. US Ultrasound, DAB No. 2302 at 8 (2010). I am also 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, Petitioner’s Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(4), effective April 20, 2018.

1. This case was originally docketed listing Petitioner as “Kelly Kim-Campo, PT.” The request for hearing filed in this case on September 16, 2018, lists Petitioner as “Kelly Kim-Campo, PT.” However, the evidence shows that Petitioner’s name is actually “Kelly B. Campo.” Petitioner’s exhibit (P. Ex.) 1 ¶ 18; P. Ex. 2 ¶¶ 18-19; P. Ex. 3; Centers for Medicare & Medicaid Services (CMS) exhibit (Ex.) 1 at 40, 44. The Centers for Medicare & Medicaid Services (CMS) National Plan and Provider Enumeration System (NPPES), National Provider Identifier (NPI) Registry lists Petitioner as an individual supplier with the name Kelly B. Kim-Campo, PT, also known as (a/k/a) Kelly Campo. The caption of this decision reflects Petitioner’s name as registered in the NPI.
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2. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.) that was in effect at the time of the initial determination, unless otherwise stated.
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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. Petitioner cited to the 2013 revalidation application, which CMS did not adopt as a basis for his revocation on reconsideration. Petitioner’s observation is equally applicable to the 2018 revalidation application. CMS Ex. 1 at 46.
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