Cheryl Ackerman, MD, DAB CR5843 (2021)

DECISION

The Centers for Medicare & Medicaid Services (CMS), acting through its Medicare administrative contractor, Novitas Solutions, Inc. (Novitas), denied Cheryl Ackerman, MD's (Petitioner's) Medicare enrollment application pursuant to 42 C.F.R. § 424.530(a)(1).  Novitas and CMS denied Petitioner's enrollment application because Petitioner was not in compliance with the New Jersey State Board of Medical Examiners' (New Jersey Board's) November 16, 2015 Consent Order (Consent Order).  Petitioner challenges the enrollment denial.  For the reasons set forth below, I affirm that CMS had a legal basis to deny Petitioner's Medicare enrollment application.

I.  Background and Procedural History

Petitioner is a medical doctor residing in New Jersey.  See CMS Exhibit (Ex.) 1 at 10.  On February 21, 2012, the New Jersey Board suspended Petitioner's medical license for failure to comply with a Private Letter Agreement she entered into with the New Jersey

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Board on October 24, 2011.1   CMS Ex. 11 at 1-2.  After the New Jersey Board denied repeated petitions for reinstatement, Petitioner appealed to the Appellate Division of the Superior Court of New Jersey.  Id. at 2.  The court remanded the matter to the New Jersey Office of Administrative Law for a hearing.  Id.  In lieu of a hearing, an administrative law judge facilitated settlement negotiations.  Id. at 3.  As a result of the negotiations, Petitioner and the New Jersey Board (both of whom were represented by counsel) entered into a Consent Order that was filed November 16, 2015.  Id.; see also CMS Ex. 10.  The Consent Order stated that Petitioner's license to practice medicine in New Jersey was reinstated subject to the conditions in the Consent Order.  CMS Ex. 10 at 2 (¶ 1).  In the Consent Order, Petitioner agreed, among other conditions, that she would "resume the practice of medicine only in the employ of another physician approved by the [New Jersey] Board" and that she would "not engage in solo practice absent approval from the [New Jersey] Board."  CMS Ex. 10 at 2 (¶ 3).

On November 25, 2015, the New York State Board for Professional Medical Conduct (New York Board) charged Petitioner with one specification of professional misconduct for having had disciplinary action taken for conduct in another state that would constitute professional misconduct under New York law.  CMS Ex. 13 at 38-41.  The New York Board suspended Petitioner's medical license for three years, placed her on a three-year probation period, required Petitioner to comply with the New Jersey Board Consent Order, and ordered Petitioner to obtain approval before recommencing practicing medicine in New York.  Id. at 32-33, 43.  Petitioner appealed and, ultimately, the Appellate Division of the New York State Supreme Court upheld the disciplinary action.  Respondent's Motion for Summary Judgment and Pre-Hearing Brief (CMS Br.) at 6 (Docket Entry #8 in the Departmental Appeals Board (DAB) Electronic Filing System (E-File)); Ackerman v. N.Y. State Dep't of Health, 64 N.Y.S. 3d 370 (N.Y. App. Div. 2017).2

On or about March 7, 2016, Petitioner petitioned the New Jersey Board to amend the November 16, 2015 Consent Order.  CMS Ex. 11 at 1.  Petitioner sought, among other requests for relief, an unrestricted license.  Id. at 4.  In an order dated April 26, 2016, the New Jersey Board denied the petition, finding that the restrictions on Petitioner's license

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stated in the Consent Order were necessary and less restrictive conditions were not appropriate.  Id. at 7-9.

Since her billing privileges were revoked in 2012, Petitioner has applied to re-enroll in the Medicare program on multiple occasions.  CMS Ex. 12 at 1-2 (¶¶ 9-10).  Novitas denied some of these enrollment applications and rejected some of the applications.  Id.  It does not appear that Petitioner requested administrative review of most of these actions.  CMS Br. at 7.  However, Petitioner did request an administrative law judge hearing to challenge a November 15, 2018 denial of an application to enroll in Medicare.  Id.  The administrative law judge assigned to hear that case dismissed Petitioner's hearing request because she failed to file her exchange of argument and evidence as required by his prehearing order.  Id.; see also CMS Ex. 14.  Petitioner has appealed that dismissal; her appeal is currently pending before the DAB.

On or about April 8, 2020, Petitioner submitted another enrollment application (Form CMS-855I), which Novitas received on April 21, 2020.  CMS Ex. 1 at 40; see also CMS Ex. 12 at 3 (¶ 11).  By letter dated April 28, 2020, Novitas denied Petitioner's enrollment application pursuant to 42 C.F.R. § 424.530(a)(1) because Petitioner was restricted from engaging in the solo practice of medicine absent approval from the New Jersey Board and Petitioner did not submit evidence that the New Jersey Board had provided such approval.3   CMS Ex. 2 at 1.  The letter also noted that Petitioner could only resume the

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practice of medicine in the employ of another physician.  Id.  The letter further stated that if Petitioner could correct the deficiencies and establish her eligibility to participate in the Medicare program, she could submit a corrective action plan (CAP) within 30 days after the date of the letter.  Id.  Finally, the notice informed Petitioner of her right to request reconsideration.  Id. at 1-2.

By facsimile transmitted May 4, 2020, Petitioner submitted a CAP stating that she had an unrestricted medical license in New Jersey.  CMS Ex. 4 at 11.  By letter dated June 22, 2020, Novitas upheld the denial of Petitioner's enrollment application under 42 C.F.R. § 424.530(a)(1), finding that the CAP did not correct the deficiencies that led to the denial of Petitioner's enrollment application.  CMS Ex. 6 at 2.  Novitas confirmed that Petitioner's medical license "continued to include the restrictions set forth in the November 16, 2015 Consent Order" and Petitioner had not provided evidence to show compliance with the conditions in the Consent Order.  Id.

Petitioner requested reconsideration.  Novitas received Petitioner's reconsideration request on June 23, 2020, but requested that Petitioner resubmit a signed copy.  CMS Ex. 8 at 1.  Petitioner then submitted a signed reconsideration request, which Novitas received on June 29, 2020.  CMS Ex. 7; see also CMS Ex. 9 at 1.  By letter dated September 18, 2020, Novitas issued a reconsidered determination finding the enrollment denial proper pursuant to 42 C.F.R. § 424.530(a)(1).  CMS Ex. 9 at 1-2.  The reconsidered determination summarized Petitioner's arguments as follows:

The reconsideration [request] states [Petitioner] has been a licensed medical doctor for 30 years with an unrestricted New Jersey medical license.  The reconsideration [request] states[,] to limit exposure to the coronavirus, most doctors are practicing in solo practice.  The reconsideration mentions this being discrimination.

Id. at 2.  Novitas' reconsidered determination upheld the denial of Petitioner's Medicare enrollment, stating that Petitioner did not comply with the requirements for enrollment because she "failed to comply with the State of New Jersey licensure requirement as outline[d] in the November 16, 2015 consent order."  Id.

Petitioner timely requested a hearing to challenge the reconsidered determination.  See Docket Entry #1 in DAB E-File.  The case was assigned to me and, on October 30, 2020, my office acknowledged Petitioner's hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  On November 4, 2020, Petitioner contacted the Civil Remedies Division (CRD) by telephone to inquire about the status of her case and communicated that she was no longer able to receive mail at the address to which CRD originally mailed the acknowledgment letter, Prehearing Order, and Civil Remedies

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Division Procedures (CRDP).  See Docket Entry #5 in DAB E-File.  On November 6, 2020, my office mailed another copy of the acknowledgment letter, Prehearing Order, and CRDP to Petitioner.  Id.  By telephone on December 10, 2020, Petitioner again informed CRD staff that she had not received the acknowledgment letter, Prehearing Order, and CRDP.  See Docket Entry #10 in DAB E-File.  On December 11, 2020, my office mailed additional copies of the acknowledgment letter, Prehearing Order, and CRDP to Petitioner.  Id.  Additionally, because Petitioner did not receive these documents earlier, I extended the deadline for Petitioner to file her prehearing exchange.  Id.

Pursuant to the Prehearing Order, CMS submitted its brief and 14 exhibits (CMS Exs. 1‑14).  Among its exhibits, CMS offered the written direct testimony of a proposed witness:  Robin Fry, a hearing specialist employed by Novitas.  CMS Ex. 12.  Petitioner filed a brief opposing summary judgment (P. Br.).  Docket Entry #15 in DAB E-File.  Petitioner attached to her brief a number of additional documents that were not labeled as exhibits.  Id.  Although Petitioner did not submit the additional documents in the form required by my Prehearing Order, CMS did not object.  Accordingly, I accepted the additional documents as Petitioner's proposed exhibits.  See Docket Entry #16 in DAB E‑File.  On February 17, 2021, I issued an order closing the record.  Id.

Petitioner did not expressly object to any of CMS's proposed exhibits.  Petitioner did, however, object to CMS's proposed witness.  P. Br. at 6.4   I construe this as an objection to CMS Ex. 12.  Petitioner asserts that Ms. Fry has discriminated against her in the past and has ignored the evidence in this case.  Id.  The sole basis for Petitioner's allegation of bias on the part of Ms. Fry appears to be that Ms. Fry issued decisions that were unfavorable to Petitioner.  The standard for establishing bias on the part of a decision maker is not that the decision maker issues an unfavorable decision, but that she does so on some basis outside the evidence in the case.  See, e.g., Beatrice State Developmental Ctr., DAB No. 2311 at 9 (2010).  There is nothing in the record to support an inference that Ms. Fry made her decisions based on anything other than the evidence before her.  Therefore, I overrule Petitioner's objection and admit CMS Exs. 1‑14 into the record.  CMS did not object to Petitioner's proposed exhibits.  Therefore, in the absence of objection, I admit them into the record.

My Prehearing Order advised the parties that an in-person hearing would only be necessary if a party offered the written direct testimony of a witness and the opposing party requested an opportunity to cross-examine the witness.  Prehearing Order ¶¶ 8-10; CRDP §§ 16(b), 19(b); see also Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding

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that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross‑examine those witnesses).  As noted above, CMS offered the written direct testimony of one witness.  Although Petitioner objected to the witness, she did not request to cross-examine the witness.  Petitioner did not offer the written direct testimony of any witness.  Consequently, an in-person hearing is not required, and I issue this decision based on the written record, without regard to whether the standards for summary judgment are met.  Prehearing Order ¶¶ 8-10; CRDP § 19(d).  I deny CMS's motion for summary judgment as moot.

II.  Issue

The issue in this case is whether CMS had a legal basis to deny Petitioner's Medicare enrollment application.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

IV.  Discussion

A. Statutory and Regulatory Background

The Act authorizes the Secretary of Health and Human Services (Secretary) to establish regulations for enrolling providers and suppliers in the Medicare program.  Act § 1866(j)(1)(A) (42 U.S.C. § 1395cc(j)(1)(A)).  Petitioner is a prospective supplier of health care services for purposes of the Medicare program.  See Act § 1861(d) (42 U.S.C. § 1395x(d)); 42 C.F.R. § 400.202 (definition of supplier).  In order to enroll in the Medicare program and receive billing privileges, suppliers must meet certain criteria.  42 C.F.R §§ 424.505, 424.510, 424.516.  The regulations define enrollment as "the process that Medicare uses to establish eligibility to submit claims for Medicare‑covered items and services . . . ."  42 C.F.R. § 424.502.  As applicable here, section 424.516(a)(2) provides that a supplier must be in "[c]ompliance with Federal and State licensure, certification, and regulatory requirements, as required, based on the type of services or supplies the . . . supplier . . . will furnish and bill Medicare."

Pursuant to 42 C.F.R. § 424.530(a)(1), CMS may deny a prospective supplier's enrollment application if CMS determines that the supplier fails to comply with any enrollment requirements.  Specifically, the regulation authorizes CMS to deny enrollment under the following circumstances:

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The provider or supplier is determined to not be in compliance with the enrollment requirements in this subpart P or in the enrollment application applicable for its provider or supplier type, and has not submitted a plan of corrective action as outlined in part 488 of this chapter.

42 C.F.R. § 424.530(a)(1).

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

1. CMS had a legal basis to deny Petitioner's Medicare enrollment application under 42 C.F.R. § 424.530(a)(1) because Petitioner was not in compliance with the terms of the New Jersey Board's November 16, 2015 Consent Order.

CMS may deny a supplier's enrollment in the Medicare program if the "supplier is determined to not be in compliance with the enrollment requirements in this subpart P or in the enrollment application applicable for its provider or supplier type, and has not submitted a plan of corrective action as outlined in part 488 of this chapter."  42 C.F.R. § 424.530(a)(1).  Suppliers must be in compliance with federal and state licensure, certification, and regulatory requirements, based on the type of services or supplies the supplier will furnish and bill Medicare.  42 C.F.R. § 424.516(a)(2).

Petitioner argues that she is a licensed medical doctor in New Jersey and New York.  P. Br. at 1, 2, 7, 8, 10, 11, 12, 14.  Petitioner further asserts that her New Jersey medical license is unrestricted and contends that the Consent Order was amended.  Id. at 1, 2, 6‑14.  Petitioner also argues that she is in compliance with Medicare requirements.  Id. at 1‑3, 5, 6, 7, 9, 11, 12, 14.

To qualify for Medicare enrollment as a physician, Petitioner must comply with federal and state licensure, certification, and regulatory requirements.  42 C.F.R. § 424.516(a)(2).  Despite Petitioner's assertions, Petitioner has not shown that she is in compliance with the restrictions that the Consent Order placed on her New Jersey medical license.  The Consent Order restricts her from engaging in the solo practice of medicine absent approval from the New Jersey Board and permits her to practice medicine only in the employ of another physician approved by the New Jersey Board.  CMS Ex. 10 at 2 (¶¶ 2‑3).  However, Petitioner did not indicate in her enrollment application that she received approval from the New Jersey Board to practice medicine independently or that she was seeking enrollment to practice medicine in the employ of another physician approved by the New Jersey Board.  Moreover, Petitioner has offered no evidence before

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me demonstrating that she is compliant with the restrictions placed on her New Jersey medical license.

Petitioner submitted a number of documents along with her brief (P. Br. at 16-25), including what appear to be copies of her medical licenses (P. Br. at 18, 19).  Yet, these documents do not show that Petitioner's New Jersey medical license is unrestricted.  None of the documents Petitioner has offered show that the New Jersey Board granted permission for her to resume practicing medicine as a solo practitioner or to practice medicine if not employed by another physician.  Further, Petitioner has not shown that the New Jersey Board has amended the Consent Order or that Petitioner is no longer subject to the conditions to which she agreed in the Consent Order.  To the contrary, CMS offered evidence that the New Jersey Board denied Petitioner's request to lift the restrictions it had placed on her medical license.  See CMS Ex. 11.  Nor has Petitioner submitted any evidence showing that she obtained permission to recommence practicing medicine in New York, as required by the New York Board.

Because Petitioner has not obtained an unrestricted license in New Jersey and has not complied with the restrictions placed upon her by the Consent Order, or obtained approval to recommence practicing medicine in New York, she is not in compliance with the enrollment requirements in 42 C.F.R. § 424.516(a)(2).  For these reasons, CMS had a sufficient basis to deny Petitioner's Medicare enrollment application for noncompliance with enrollment requirements pursuant to 42 C.F.R. § 424.530(a)(1).

2. Petitioner may not collaterally attack the decisions of the New Jersey and New York Boards in this forum.

Petitioner argues that the New Jersey and New York Boards acted unfairly when imposing restrictions on her medical licenses.  Petitioner contends that the New Jersey Board discriminated against her because of her religion and personal health matters and because she is a female physician.  P. Br. at 1-4, 6-13.  Petitioner also argues that, although she had a hearing before the New York Board, she did not have a hearing before the New Jersey Board.  Id. at 13.

Petitioner's arguments that the New Jersey and New York Boards' actions were unfair or constituted discrimination amount to a collateral attack on the Boards' decisions to impose restrictions on Petitioner's medical licenses.  Petitioner's logic appears to be that, had the New Jersey and New York Boards not acted unfairly or discriminated against her, her New Jersey and New York medical licenses would be unrestricted and she would be in compliance with Medicare enrollment requirements.  However, Petitioner cannot collaterally attack the New Jersey and New York Boards' proceedings in this forum.  I have no authority to declare the New Jersey and New York Boards' decisions to impose

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restrictions on Petitioner's medical licenses invalid or to amend or set aside the Consent Order.5   The regulations do not authorize me to review the procedures through which state administrative bodies decide their cases or the merits of the decisions they issue.  See Douglas Bradley, M.D., DAB No. 2663 at 16 (2015) ("[n]othing in [the appeal] regulations, or in the Medicare statute, even remotely suggests that they were intended [to] provide a forum to collaterally challenge adverse decisions by federal or state courts or non-federal regulatory bodies").

Rather, my review is limited to whether CMS and Novitas had a legal basis to deny Petitioner's enrollment application.  As I have explained above, Petitioner has not complied with the restrictions placed upon her by the New Jersey and New York Boards.  Accordingly, there is no basis to reverse CMS's denial of Petitioner's Medicare enrollment application for noncompliance with enrollment requirements pursuant to 42 C.F.R. § 424.530(a)(1).

3. Petitioner's other arguments, which are essentially equitable, are not a basis to overturn CMS's determination denying Petitioner's application to enroll in Medicare.

Petitioner argues that she is an ethical doctor, has not committed any crime or fraud, is not an excluded Medicare provider, has had a "perfect history" of practicing medicine for 27 years, and has never been sued for malpractice.  P. Br. at 1-3.  Petitioner also states that she requires Medicare enrollment to treat COVID-19, disabled, and geriatric patients.  Id. at 11, 14.  To the extent Petitioner is arguing that denying her Medicare enrollment application is inequitable under the circumstances, I am not authorized to reverse the denial based on equitable considerations.  US Ultrasound, DAB No. 2302 at 8 (2010).

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V.  Conclusion

For the foregoing reasons, I find that CMS had a legal basis to deny Petitioner's application for Medicare enrollment and billing privileges.

1. Novitas issued a December 6, 2012 initial determination revoking Petitioner's Medicare enrollment and billing privileges, effective February 21, 2012, because her New Jersey medical license had been suspended.  CMS Ex. 12 at 1 (¶ 4).
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2. The court's decision recounted that the suspension of Petitioner's license in New York had been overturned in an intervening administrative appeal.  64 N.Y.S. 3d at 373.  However, the court upheld the probation and practice restrictions that remained.  Id. at 374.
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3. It is apparent that Novitas interpreted Petitioner's enrollment application as requesting to enroll as a solo practitioner, billing through her professional corporation, Cheryl Ackerman, MD, PC.  See, e.g., CMS Ex. 12 at 2 (¶ 6).  Petitioner's enrollment application did not state expressly that she intended to practice as a solo practitioner.  CMS Ex. 1 at 22.  Rather, Petitioner did not check any box on the Form CMS-855I regarding her practice structure.  Id.  Nevertheless, I find it more likely than not that Petitioner was requesting to enroll as a solo practitioner.  I make this finding for two reasons.  First, in the face of Novitas' repeated statements that it had denied Petitioner's applications because she was proposing to engage in solo practice, Petitioner has not stated, in any submission to Novitas or to me, that she intends to practice in a supervised employment setting.  Second, in proceedings before the New York Board, Petitioner admitted under oath that the Consent Order prevented her from engaging in solo practice.  CMS Ex. 13 at 143.  She further testified that she was having difficulty finding employment and she was therefore "asking the [New Jersey] Board if they will even allow me to open my practice, because I have many patients."  Id.; see also CMS Ex. 9 at 2.  In fact, the New York Board observed that, "instead of explaining her efforts toward complying with the requirements imposed on her by the New Jersey Board," Petitioner described the requirements "as 'impossible conditions' that were 'harsh' and 'for no reason.'"  CMS Ex. 13 at 30.
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4. Petitioner did not paginate her brief or exhibits.  I refer to the PDF page numbers that display when viewing the document in DAB E-File.
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5. Though not necessary to my decision, I observe that Petitioner has not demonstrated that the processes through which her New Jersey and New York licenses were suspended were tainted by any unfairness.  Following the suspension of her medical license in February 2012, Petitioner had the opportunity to appeal the New Jersey Board's decisions and challenge the New Jersey Board's denial of her repeated petitions for reinstatement.  CMS Ex. 11 at 2-3.  Petitioner then chose to enter into the Consent Order following settlement negotiations facilitated by the New Jersey Office of Administrative Law.  Id. at 3, 5.  Similarly, Petitioner appeared before the New York Board in an administrative hearing on December 16, 2015, and appealed the decision of the New York Board administratively and in state court.  CMS Ex. 13 at 32-33, 43; CMS Br. at 6.
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