Christopher Bowers, DC and Bowers Chiropractic PLLC, DAB CR5818 (2021)

DECISION

The Medicare enrollment and billing privileges of Petitioners1 are revoked pursuant to 42 C.F.R. § 424.535(a)(4).2   Revocation is effective July 12, 2019, 30 days after the June

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12, 2019 notices of initial determination.  Petitioners were barred from re-enrolling in Medicare for three years. 

I.  Procedural History and Jurisdiction

On June 12, 2019, Wisconsin Physicians Service Insurance Corporation, a Medicare administrative contractor (MAC), for the Centers for Medicare & Medicaid Services (CMS), notified Petitioners that their Medicare enrollment and billing privileges were revoked effective July 12, 2019, and that they were barred from re-enrolling in Medicare for three years.  The MAC cited 42 C.F.R. § 424.535(a)(4) as authority for the revocation.  CMS Exhibit (Ex.) 1 at 22-23; September 25, 2019 Reconsidered Determination for Petitioner Practice at 3 (Departmental Appeals Board Electronic Filing System (DAB E-File) Item #1b).3

Petitioners requested reconsideration on or about July 16, 2019 by letter dated July 1, 2019.  Ct. Ex. 1 at 1; CMS Ex. 1 at 1, 9.  On September 25, 2019, a CMS hearing officer issued reconsidered determinations upholding revocation pursuant to 42 C.F.R. § 424.535(a)(4).  Ct. Ex. 1 at 1-8; CMS Ex. 1 at 1-8. 

Petitioners filed a request for hearing before an administrative law judge (ALJ) on November 22, 2019 (RFH).  The case was docketed and assigned to me.  On December 2, 2019, an Acknowledgment and Prehearing Order (Prehearing Order) was issued.

CMS filed a motion for summary judgment on January 16, 2020 (CMS Br.) with CMS’s Exhibits (CMS Exs.) 1 through 3.  On February 14, 2020, Petitioners filed a response in opposition to the CMS motion (P. Br.) and Petitioners’ Exhibits (P. Exs.) 4 through 9.  CMS filed a reply brief (CMS Reply) with CMS Exs. 4 and 5.  No objections have been made to my consideration of CMS Exs. 1 through 5, P. Exs. 4 through 9, or Ct. Ex. 1, and all are admitted and considered as evidence.

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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.4   Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioners, a chiropractor and his solely owned practice, are suppliers.  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 in order to impose on regulated entities a substantive legal standard that is 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.”  

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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 re-enrolling in the Medicare program for one to three years.  42 C.F.R. § 424.535(c).5

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 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 Petitioners’ 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 undisputed fact and analysis.

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1.  Summary judgment is appropriate.

CMS requests summary judgment.  Petitioners oppose the motion.6   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) (42 U.S.C. § 405(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.  Petitioners have not filed a written waiver of the right to appear and present evidence.  Because Petitioners have not waived the right to oral hearing, disposition on the written record alone is not permissible unless summary judgment is appropriate.

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 Petitioners’ 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 ¶¶ III.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

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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 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 are no genuine disputes of material fact related to revocations pursuant to 42 C.F.R. § 424.535(a)(4), and Petitioners’ defenses must be resolved against them as matters 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 the bases for revocation and the effective dates 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 are bases to revoke Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) because Petitioners failed to list a final adverse action, i.e., Petitioner Bowers’ 2012 felony conviction, on the revalidation enrollment application submitted via the Medicare Provider Enrollment, Chain, and

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Ownership System (PECOS) on January 31, 2019, which Petitioner Bowers certified was true, correct, and complete. 

4.  Revocation of the Medicare enrollment and billing privileges of Petitioners is effective July 12, 2019, 30 days from the date of the June 12, 2019 notices of initial determination to revoke.  42 C.F.R. § 424.535(g).

5.  The issue to be decided is whether there are bases for revocation of Petitioners’ Medicare enrollment and billing privileges, and if there are, my jurisdiction does not extend to review of whether CMS properly exercised its discretion to revoke Petitioners’ Medicare enrollment and billing privileges.

6.  I have no authority to review CMS’s determination to impose a three-year bar to Petitioners’ re-enrollment in Medicare.

a.  Undisputed Facts

The material facts are not disputed or are accepted as true with all favorable inferences drawn in Petitioners’ favor for purposes of summary judgment.  The parties were advised by the Prehearing Order that, when considering a motion for summary judgment, a fact alleged and not specifically denied will be accepted as true and that offered evidence will be considered admissible and true in the absence of specific objection.  Prehearing Order ¶ III.G.

On November 14, 2012, Petitioner Bowers, pleaded guilty in an Iowa district court (state court) to one count of “Operating While Under the Influence or With Controlled Substance – THIRD OR SUBSEQUENT OFFENSE” (OWI), in violation of Iowa law (state conviction).  CMS Ex. 1 at 10 (capitalized as in original).  Petitioner Bowers was sentenced on January 7, 2013, to five years in prison with all but 30 days suspended, to pay a fine of $3,125, three years of probation, revocation of driving privileges for six years, and he was granted work release.  CMS Ex. 1 at 10-11; P. Br. at 1.  Pursuant to Iowa Code § 321J.2.2.c (2011), a third or subsequent offense is a felony.  Therefore, Petitioner was convicted of a felony.

Petitioners assert, and I accept as true for purposes of summary judgment, that in 2013 Petitioner Bowers submitted a Medicare enrollment application in which he did not report his 2012 state conviction.  P. Br. at 1-2.  I infer, favorably for Petitioners, that the application was approved, Petitioner Bowers was enrolled in Medicare, and no adverse administrative action was taken based on the application. 

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Petitioner Bowers also did not report his state conviction on his revalidation application that he signed on April 3, 2014.7   CMS Ex. 3 at 12, 24, 45.  I infer, favorably for Petitioners, that the application was approved, Petitioner Bowers was enrolled in Medicare, and no adverse administrative action was taken based on the application.

On January 31, 2019, the MAC received a Medicare revalidation enrollment application for each Petitioner through the PECOS system.  CMS Ex. 1 at 24-28; CMS Exs. 4-5.  Section 3 of each application asked “[h]as a final adverse legal action ever been imposed against an applicant under any current or former name or business entity?”  CMS Ex. 1 at 26; CMS Ex. 4 at 2; CMS Ex. 5 at 3.  Petitioners entered “no” on the applications in response to the question in Section 3.  CMS Ex. 1 at 26; CMS Ex. 4 at 2; CMS Ex. 5 at 3.  Section 6 of the application filed for Petitioner Practice asked whether the owner or managing individual ever had a final adverse legal action imposed against him/her and Petitioner Bowers answered no.  CMS Ex. 4 at 4. 

The MAC issued initial determinations on June 12, 2019, revoking Petitioners’ Medicare enrollment and billing privileges effective July 12, 2019.  The MAC based the revocations on Petitioners’ failure to report Petitioner Bowers’ November 14, 2012 state felony conviction for OWI.  The MAC imposed a three-year re-enrollment bar.  CMS Ex. 1 at 22-23; CMS Ex. 2 at 3.

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Petitioners requested reconsideration by letter dated July 1, 2019, with a supplemental request filed on August 9, 2019.  CMS Ex. 1 at 9, 13-16. 

A CMS hearing officer issued reconsidered determinations on September 25, 2019, upholding revocation of Petitioners’ Medicare enrollment and billing privileges.  The hearing officer cited 42 C.F.R. § 424.535(a)(4) as the bases for revocation, concluding that Petitioners certified as true, correct, and complete their January 31, 2019 applications in which they did not disclose Petitioner Bowers’ 2012 state felony conviction for OWI.  CMS Ex. 1 at 1-8; Ct. Ex. 1.

b.  Analysis

Petitioners’ Medicare enrollment and billing privileges were revoked by the MAC and CMS pursuant to 42 C.F.R. § 424.535(a)(4).  I conclude that CMS had bases for revocation pursuant to 42 C.F.R. § 424.535(a)(4). 

The revocation of Petitioners’ enrollment and billing privileges is based only upon the applications Petitioners filed using PECOS on January 31, 2019.  CMS Ex. 1 at 2-3, 5.  Petitioners’ applications filed in 2013 and 2014 are not the bases for any adverse actions by the MAC or CMS that are at issue before me.  Petitioners’ allegations regarding the 2013 and 2014 applications, which are accepted as true for purposes of summary judgment, are relevant only to Petitioners’ alleged defense which, as discussed hereafter, is without merit and must be resolved against Petitioners as a matter of law. 

CMS and the MAC are authorized to revoke Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) when “[t]he provider or supplier certified as ‘true’ misleading or false information on the enrollment application.” 

Petitioners do not dispute that Petitioner Bowers was convicted of a felony count of OWI when the state court accepted his guilty plea on November 14, 2012.  P. Br. at 1-2; CMS Ex. 1 at 9; 42 C.F.R. § 1001.2 (conviction occurs when guilty plea accepted).

Petitioners do not dispute that Section 3 of the application filed by Petitioner Bowers on January 31, 2019, posed the question “[h]as a final adverse legal action ever been imposed against an applicant under any current or former name or business entity” and Petitioner Bowers answered no to that question.  CMS Ex. 1 at 26; CMS Ex. 5 at 3.

Petitioners do not dispute that Section 3 of the application filed by Petitioner Bowers for Petitioner Practice on January 31, 2019, posed the question “[h]as a final adverse legal action ever been imposed against an applicant under any current or former name or business entity” and Petitioner Bowers answered no to that question.  CMS Ex. 4 at 3.  Section 6 of the same application posed the question “[h]as this individual [referring to the owner or controlling manager listed in that section, i.e., Petitioner Bowers], under any

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current or former name or business entity, ever had a final adverse legal action imposed against him/her?”  Petitioners do not dispute that the response entered on the form to that question was no.  CMS Ex. 4 at 3-4.

Petitioners do not dispute that when filing both applications on January 31, 2019, Petitioner Bowers certified that the information provided in the applications was true and complete.8   CMS Ex. 1 at 24; CMS Ex. 4 at 1; CMS Ex. 5 at 1.

The questions posed in the applications in Sections 3 and 4 do not establish any time limit for when the final adverse legal action occurred.  The questions posed also do not limit the final adverse legal actions to the felonies listed in 42 C.F.R. § 424.535(a)(3).  However, pursuant to the 2018 revision of 42 C.F.R. § 424.502 in effect on January 31, 2019, when Petitioners filed the applications at issue: 

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

(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.

The first, second, third, and fifth definitions do not apply in this case.  However, the fourth definition of a final adverse action is applicable.  The definition covers Petitioner Bowers’ November 2012 felony OWI state conviction which occurred within the 10

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years preceding the filing of Petitioners’ enrollment applications on January 31, 2019, but only if Petitioner Bowers’ conviction fits within the definition of felony offenses in 42 C.F.R. § 424.535(a)(3)(i).  Section 424.535(a)(3)(i) of 42 C.F.R. provides:

(3) Felonies. (i) The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.

Therefore, a final adverse legal action that must be reported is:  (1) a felony conviction of a provider, supplier, or owner or managing employee; (2) within the 10 years preceding the application; and (3) the federal or state felony is one CMS determines is detrimental to Medicare or its beneficiaries.  The examples of offenses that CMS has determined are per se detrimental are found in 42 C.F.R. § 424.535(a)(3)(ii) which provides: 

(ii) Offenses include, but are not limited in scope or severity to—

(A) Felony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.

(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.

(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that results in a conviction of criminal neglect or misconduct.

(D) Any felonies that would result in mandatory exclusion under section 1128(a) of the Act.

Petitioners correctly assert that the list does not specifically list an OWI conviction.  P. Br. at 2-3.  However, the language of the regulation, i.e., “include, but are not limited

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in scope and severity to,” clearly shows that the list in the regulation is a listing of examples or categories of offenses that CMS considers per se detrimental to Medicare or its beneficiaries.9   Therefore, the issue is whether Petitioners were on notice that Petitioner Bowers was required to list his OWI conviction as a final adverse legal action.  Petitioner Bowers’ OWI conviction was not one that subjected him to mandatory exclusion from Medicare under section 1128(a) of the Act, described in 42 C.F.R. § 424.535(a)(3)(ii)(D).  Petitioner Bowers’ OWI conviction did not fit the category of financial crimes under 42 C.F.R. § 424.535(a)(3)(ii)(C).  However, Petitioner Bowers’ OWI does amount to a felony crime against persons under 42 C.F.R. § 424.535(a)(3)(ii)(A), because operating a vehicle under the influence of drugs or alcohol places other drivers and pedestrians at risk as well as placing the operator at risk.  Petitioner Bowers’ OWI also is a felony that placed Medicare beneficiaries who were drivers or pedestrians at immediate risk at the time of the felony10 under 42 C.F.R. § 424.535(a)(3)(ii)(C).  In Brenda Lee Jackson, DAB No. 2903 at 9-11 (2018), the Board

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upheld revocation based on a violation of 42 C.F.R. § 424.535(a)(4) because the supplier in that case failed to list a felony driving under the influence (DUI) conviction as a final adverse legal action. 

I conclude that the undisputed facts establish a prima facie showing of bases to revoke Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4).  I further conclude Petitioners have failed to aver facts sufficient to rebut the CMS prima facie case and, therefore, CMS prevails as a matter of law. 

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

Petitioners raise several additional arguments that I conclude have no merit. 

Petitioners argue that applications filed in 2013 and 2014 were completed in the same way as the January 31, 2019 applications, and CMS and the MAC never notified Petitioner Bowers of a problem.  P. Br. at 3.  Petitioners placed in evidence the application Petitioner Bowers certified on May 3, 2013.  P. Ex. 4 at 27.  In that application, Petitioner Bowers responded “no” to the question of whether he had any final adverse legal action.  The paper application included a full-page explanation of what constituted a reportable final adverse legal action.  P. Ex. 4 at 13-14.  I have accepted as true for purposes of summary judgment that Petitioners’ 2013 and 2014 applications were approved without the listing of Petitioner Bowers’ 2012 OWI conviction.  Petitioners’ argument may be construed to be a request to estop the government from revoking Petitioner Bowers’ Medicare enrollment and billing privileges and his loss of ability to receive reimbursement from Medicare, because the MAC or CMS previously approved his enrollment applications.  However, equitable estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud, and no such allegation exists in this case.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). 

Petitioners argue that a credentialing organization was used to complete the applications filed on January 31, 2019.  Petitioner Bowers states that he disclosed his 2012 state conviction to the credentialing organization, he only recently realized the state conviction was not disclosed in the 2013 and 2014 applications, he did not realize that the 2019 applications required reporting all felony convictions, and he mistakenly assumed that the credentialing organization reported any required information.  P. Br. at 4; RFH at 2-3.  Even if I accept as true for purposes of summary judgment that Petitioner Bowers was

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unaware of or confused about the requirement to report his state conviction on the 2019 applications, Petitioners’ mistake of law does not defeat summary judgment.  The Board and courts have concluded that Medicare providers and suppliers participating in Medicare have a duty to familiarize themselves with Medicare requirements.  Gulf S. Med. & Surgical Inst.,DAB No. 2400 at 9 (2011), aff’d, Gulf S. Med. & Surgical Inst., et al.,2:11-cv-02353 (E.D. La. Oct. 17, 2012); John Hartman, D.O., DAB No. 2564 at 3 (2014) (quoting Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63 (1984) (“[T]hose who deal with the [g]overnment are expected to know the law[.]”); see also Thomas M. Horras & Christine Richards, DAB No. 2015 at 34 (2006) (officer and principal of provider had responsibility to be aware of and adhere to applicable law and regulations), aff’d, Horras v. Leavitt, 495 F.3d 894 (8th Cir. 2007).  The regulations also clearly require that the provider or supplier, or an individual authorized to bind the provider or supplier both legally and financially to the conditions of Medicare enrollment, must sign an enrollment application, attesting to the fact that the information submitted is accurate and that the provider or supplier is aware of, and abides by, all applicable statutes, regulations, and program instructions.  42 C.F.R. § 424.510(d)(3).  Petitioner Bowers, not his credentialing organization, had the duty to understand what the credentialing organization was submitting on Petitioners’ behalf to Medicare.  Petitioner Bowers authorized filing the 2019 applications and certified the applications were true, correct, and complete, despite the omission of the state conviction.  Petitioners cannot argue that the credentialing organization was to blame because Petitioner Bowers failed to know what was required under Medicare enrollment regulations and ensure that the applications which he certified were true and correct were in fact true and correct.  Jackson, DAB No. 2903 at 10-11.

I accept as true for purposes of summary judgment that Petitioner Bowers reported his conviction to the Iowa Board of Chiropractic, which removed any derogatory information from his record.  He also reported his conviction to his insurance companies that continue coverage for his services.  P. Br. at 5; P. Ex. 5.  Petitioner Bowers states that he had no intent to provide false information or mislead CMS.  P. Br. at 5; RFH at 3.  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).

Petitioners placed in evidence letters from Petitioner Bowers’ friends, patients, and his preacher, all attesting to his skill as a practitioner, his good character, his service to the community, and his commitment to sobriety.  P. Exs. 6-9.  Petitioners request leniency because Petitioner Bowers’ conviction was in 2012, he has remained sober, he poses no risk to Medicare beneficiaries, and he serves his community.  Petitioners argue that revocation of their Medicare enrollment and billing privileges is a disservice to Petitioner Bowers and Medicare beneficiaries.  P. Br. at 5-6; RFH at 3-5.  Petitioner Bowers’

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rehabilitation and his service are laudable.  However, Petitioners’ requests for equitable relief cannot be granted as 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).

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 MAC mails notice of its initial 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 June 12, 2019.  CMS Ex. 1 at 22.  It is not subject to dispute that the 30th day after June 12, 2019, was July 12, 2019.  Accordingly, I conclude that July 12, 2019, is the correct effective date of revocation. 

The MAC imposed a three-year bar to reenrollment.  CMS Ex. 1 at 23.  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 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).

III.  Conclusion

For the foregoing reasons, Petitioners’ Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(4), effective July 12, 2019.

1. This case was originally docketed listing only Christopher Bowers, DC as Petitioner.  However, on further review of the request for hearing, I conclude that the request for hearing was filed on behalf of both Christopher Bowers, DC (Petitioner Bowers) and his solely owned practice, Bowers Chiropractic PLLC (Petitioner Practice).  Petitioners filed with their request for hearing the September 25, 2019 reconsidered determinations related to each Petitioner.  Therefore, the caption of this decision reflects both Petitioners.
• back to note 1
2. Citations are to the 2018 revision of the Code of Federal Regulations (C.F.R.) that was in effect at the time of the initial determinations, unless otherwise stated.  An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018), that the applicable regulations are those in effect at the time of the initial determination.  Further, the Board previously concluded that the only determination subject to my review in a provider or supplier enrollment case such as this is the reconsidered determination.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).
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3. The initial determination related to Petitioner Practice, is marked as CMS Ex. 2 at 3-4.  The reconsidered determination related to Petitioner Practice was not offered as evidence but was filed by Petitioners with the RFH.  That document was docketed as DAB E-File Item #1b and is treated as Court Exhibit (Ct. Ex.) 1; the citations are to the document page counter.  CMS placed the Medicare enrollment applications for both Petitioners in evidence as CMS Exs. 4 and 5.
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4. 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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5. Effective November 4, 2019, the maximum re-enrollment bar was raised to 10 years with a maximum of 20 years for a second revocation.  84 Fed. Reg. 47,794, 47,826 (Sept. 10, 2019).  This change does not apply in this case.
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6.   Petitioners requested oral argument.  P. Br. at 10.  However, the parties have thoroughly briefed the motion and oral argument would not be beneficial to resolving the motion.
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7. Petitioner Bowers states in his July 1, 2019 request for reconsideration that in “[m]y original application and previous revalidation I know did disclose this information.”  CMS Ex. 1 at 9.  Petitioner Bowers does not state the dates of those applications.  However, Petitioners take the position before me that the 2013 Medicare enrollment application was the first application filed after Petitioner Bowers’ state conviction and he did not disclose the conviction in that application because his OWI conviction did not fit within the descriptions of the offenses listed in the application that had to be reported.  P. Br. at 2.  Petitioners do not specifically deny before me that Petitioner Bowers’ conviction was not disclosed in the 2014 application.  However, Petitioners argue there is an issue of fact as to what had to be reported under the 2014 application.  I accept as true for purposes of summary judgment Petitioners’ most recent position that Petitioner Bowers’ 2012 conviction was not disclosed in the 2013 applications and I infer that Petitioner also did not report the conviction in the 2014 application.  It is important to recognize that CMS neglects to cite as a basis for revocation Petitioner Bowers’ failure to report his conviction in the 2013 or the 2014 applications.  Rather, those applications are referenced by Petitioners as part of their defense.  Petitioner Bowers’ misunderstanding of what constituted a reportable felony offense in the 2013 and 2014 applications is an issue of law and does not constitute a genuine dispute of material fact that defeats summary judgment.
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8. The actual certification forms for the applications are not in evidence, but Petitioner has not disputed that he completed the certifications and that by doing so he certified information he provided was true and correct.
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9. It can be argued that the regulation grants CMS broad authority to determine any felony offense is detrimental.  See, e.g., Saeed A. Bajwa, M.D., DAB No. 2799 at 10 (2017); Fady Fayad, M.D., DAB No. 2266 at 17 (2009), aff’d, Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011); Abdul Razzaque Ahmed, M.D., DAB No. 2261 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).  However, if Petitioner Bowers’ felony does not fit within one of the categories of offenses listed in the regulation, how could Petitioner Bowers know at the time of completing an application that the offense needed to be listed as a final adverse legal action?  The Secretary has delegated rule‑making authority under section 1871 of the Act to CMS and CMS has the option to more clearly define what felony offenses are final adverse legal actions that must be reported, thereby giving clear notice to regulated persons and entities of substantive legal standards with which they must comply.  If CMS wants disclosure of all felony convictions without any time limit, CMS should amend the regulations and its applications to so provide.  Until such time, it is necessary to determine whether Petitioner Bowers could discern from the regulation that he needed to report his OWI.  I note that the parties did not place in evidence any evidence of the instructions for completing the applications from PECOS, so no consideration of instructions for completing the applications in question are considered.
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10. Petitioners argue that Petitioner Bowers’ OWI occurred seven years prior to the revocation action and there was no immediate risk to Medicare beneficiaries at the time of the revocation.  P. Br. at 4.  However, 42 C.F.R. § 424.535(a)(3)(ii)(C) specifically refers to “any felony that placed the Medicare program or its beneficiaries at immediate risk.”  The felony act is the focus of the regulatory provision, not the conviction or the situation at the time of the revocation action.
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