Harrogate Family & Health Care Inc., DAB CR6064 (2022)

DECISION

Harrogate Family & Health Care, Inc. (Harrogate or Petitioner)1 appeals the reconsidered determination revoking Harrogate’s Medicare enrollment and billing privileges and placement on the Centers for Medicare & Medicaid Services (CMS) preclusion list.  For the reasons explained below, I find that there was a legitimate basis for CMS to revoke Harrogate’s Medicare enrollment and billing privileges, based on 42 C.F.R. § 424.535(a)(4) and (9) (false or misleading information and failure to report), and for inclusion on the CMS preclusion list, based on 42 C.F.R. §§ 422.2 and 422.222.

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I.      Background and Procedural History

Petitioner was enrolled in the Medicare program as a clinic/group practice.  CMS Exhibit (Ex.) 1 at 1, 3.  A Clinic/Group Practice is considered a “supplier” of services in the Medicare program.  42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202.  In an initial determination dated June 3, 2020, Debbie Poore was notified that her Medicare privileges were being revoked pursuant to 42 C.F.R. § 424.535(a)(3), effective February 22, 2016, because she had been convicted of a felony.  CMS Ex. 5 at 1.  She was also notified that because of the revocation, she was being added to the CMS preclusion list.  CMS Ex. 5 at 1.  On June 5, 2020, Harrogate was notified that its Medicare privileges were being revoked pursuant to 42 C.F.R. § 424.535(a)(3), (4), and (9), effective February 22, 2016, because of the felony conviction of its owner, Ms. Poore; providing false or misleading information on the CMS enrollment form; and failure to report the felony conviction of its owner.  CMS Ex. 6 at 1.  Petitioner was also informed that it had been included on the CMS preclusion list and placed under a reenrollment bar.  CMS Ex. 6 at 1.

Petitioner, through Ms. Poore, filed a request for reconsideration on June 19, 2020, asserting that its credentialing was outsourced and that it was an oversight on their part that Medicare was not notified.  CMS Ex. 7 at 1.  Petitioner also argued that Ms. Poore’s conviction was a misdemeanor, not a felony; she was compliant with her nursing board and TnPAP program; and no patient care was ever threatened by these reports.  CMS Ex. 7 at 1.  In a reconsidered determination dated August 6, 2020, CMS overturned the revocation pursuant to 42 C.F.R. § 424.535(a)(3), because Ms. Poore’s conviction was for a misdemeanor, not a felony.  CMS Ex. 10 at 4.  However, CMS upheld the revocation of Petitioner’s Medicare enrollment and billing privileges under the provisions of 42 C.F.R. § 424.535(a)(4) and (9), with an effective date of July 5, 2020.  CMS Ex. 10 at 6.  CMS also upheld the determination to include Petitioner on the preclusion list and upheld a 10‑year reenrollment bar, beginning July 5, 2020.  CMS Ex. 10 at 6-7.

Petitioner timely filed a request for hearing (RFH) on October 2, 2020.  The case was assigned to Judge Leslie Weyn, who issued a Standing Prehearing Order (Order) on October 5, 2020.2   In its prehearing exchange, CMS filed the Respondent Centers for Medicare & Medicaid Services’ Motion for Summary Judgment or Pre-Hearing Brief and 13 proposed exhibits.  Petitioner filed the Response In Opposition to Centers for Medicare & Medicaid’s Motion for Summary Judgment (P. Response), filed three proposed exhibits, and listed a proposed witness.  There were no objections to either party’s proposed exhibits.  CMS Exhibits (Exs.) 1- 13 are, therefore, admitted into the record.  Considering Petitioner’s submissions, I note that they were not submitted in accordance with the Order, which specified that “Petitioner must not submit documents that CMS has already submitted as proposed exhibits.”  Order at 4 ¶ 4.c.iii (emphasis in original).  Petitioner’s proposed exhibits are duplicates of CMS Exs.

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6, 7, 10, and 3, a fact acknowledged in Petitioner’s List of Proposed Exhibits and Witnesses.  Departmental Appeals Board Electronic Filing System (DAB E‑File) Entry # 8.3   As a result, I have not admitted Petitioner’s submissions into the record, as they fail to conform to the Order.  However, there is no prejudice to Petitioner in this exclusion, since its proposed exhibits have been admitted as CMS exhibits and have been considered in this decision.

According to the Order, an in-person hearing to cross-examine witnesses is necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross examine.  Order at 6 ¶ 10.  Neither party has offered the written direct testimony of any witness as part of its prehearing exchange.4   As a result, an in-person hearing is not necessary, and I issue this decision based on the written record.5  Order at 7 ¶ 12.

II.     Issues

1. Whether CMS had a legitimate basis for revoking Petitioner’s enrollment and billing privileges, pursuant to the provisions of 42 C.F.R. § 424.535(a)(4) and (9); and
2. Whether CMS had a legitimate basis for including Petitioner on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 422.222.

III.    Jurisdiction

I have jurisdiction to decide this case.  42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 498.3(b)(17)(i), 498.5(l)(2).

IV.     Findings of Fact, Conclusions of Law, and Analysis6

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to establish regulations for enrolling providers and suppliers in the Medicare program.  42

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U.S.C. § 1395cc(j)(1)(A).  Suppliers must enroll in the Medicare program and receive a billing number in order to obtain payment for services rendered to Medicare beneficiaries.  42 C.F.R. § 424.505.

The regulations delegate to CMS the authority to revoke the enrollment and billing privileges of suppliers.  42 C.F.R. § 424.535.  CMS or a Medicare contractor may revoke a supplier’s Medicare enrollment and billing privileges for a number of specified reasons, including, as relevant here, providing false or misleading information and failure to comply with reporting requirements.   42 C.F.R. § 424.535(a)(4) and (9).  After CMS revokes a supplier’s enrollment and billing privileges, CMS bars the supplier from reenrolling in the Medicare program for a minimum of one year but not greater than 10 years.  42 C.F.R. § 424.535(c)(1)(i).  CMS may also include a supplier on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 422.222.

1.  The evidence establishes that there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(9).

The facts in this matter are not in dispute.  Ms. Poore has been licensed in Tennessee as an APN since 2004 and has been certified as an FNP since 1999.  CMS Ex. 7 at 7; CMS Ex. 3 at 13.  She was a 5% or greater direct/indirect owner of Harrogate Family & Health Care, Inc. and had reassigned her right to bill the Medicare program to that entity.  CMS Ex. 1 at 4-6.  On January 19, 2016, following the tragic loss of her son, Ms. Poore pled guilty to three misdemeanors:  driving under the influence (DUI) and two counts of vehicular assault.  CMS Ex. 7 at 5, 8.  On February 17, 2016, the Tennessee Board of Nursing suspended her license.  CMS Ex. 3 at 7.  As part of the stipulated disposition, Ms. Poore was given the option to undergo an evaluation by the Tennessee Professional Assistance Program (TnPAP), and, if recommended after the evaluation, a return to practice under a TnPAP monitoring agreement.  CMS Ex. 3 at 7.  According to the Order of the Tennessee Board of Nursing (Nursing Order), compliance with the terms of the monitoring agreement would result in a stay of the suspension and the license would be placed on probation.  CMS Ex. 3 at 8.  Pursuant to this disposition and compliance with the monitoring agreement, Ms. Poore’s license was placed on probation and the suspension stayed on June 23, 2016.  CMS. Ex. 12.

In an application for revalidation signed by both Ms. Poore and another individual as authorized officials on May 9, 2019, Petitioner identified Ms. Poore as a 5% or greater owner and certified that she had never had a “final adverse legal action” imposed against her.  CMS Ex. 1 at 4-5, 11.  Ms. Poore subsequently filed a CMS-855I reactivation application as a nurse practitioner, dated September 12, 2019.  CMS Ex. 4 at 25.  In that application, she answered “yes” to the question if she had ever had one of the specified final adverse legal actions imposed against her.  CMS Ex. 4 at 13.  She identified the final adverse legal action as a DUI in 2014 with the action taken by the State of Tennessee

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Nursing Board.  CMS Ex. 4 at 13.  In June 2020, Palmetto GBA, the Medicare contractor, then notified Petitioner and Ms. Poore that their Medicare privileges were being revoked under the provisions of 42 C.F.R. § 424.535(a)(3), (4) and (9), that each was added to the CMS preclusion list, and each was under a reenrollment bar.  CMS Exs. 5 and 6.

As noted above, CMS is authorized to revoke the enrollment of a currently enrolled supplier for a number of reasons.  Revocation is authorized under the provisions of 42 C.F.R. § 424.535(a)(9), governing “Failure to report,” if the supplier “did not comply with the reporting requirements specified in § 424.516(d) . . . .”  42 C.F.R. § 424.516(d)(1)(ii), in turn, requires suppliers, including nonphysician practitioners and nonphysician practitioner organizations, to report “[a]ny adverse legal action” within 30 days.

Petitioner denies any violation of these provisions, stating that “Ms. Poore’s license was suspended because she pled guilty to three misdemeanors:  driving under the influence and two counts of vehicular assault.”  P. Response at 1.  Petitioner argues, however, that the Nursing Order was not a final adverse action and asserted in the RFH that it was “not required to disclose the Tennessee Board of Nursing’s order to Medicare.”  P. Response at 5; RFH at 5.  Petitioner alleges that the suspension was stayed and license was on probation once Ms. Poore obtained an evaluation from TnPAP and a recommendation that she return to practice with monitoring.  P. Response at 4.  Petitioner notes that Ms. Poore did obtain an evaluation from TnPAP and “agreed to numerous conditions as part of her monitoring agreement including counseling, AA meetings, and random drug and alcohol testing.”  P. Response at 4.  Because Ms. Poore remains in compliance with this monitoring agreement, Petitioner argues that the “suspension is not final at this stage.”  P. Response at 4.  Petitioner also alleged that the “suspension was held in abeyance pending her completion of the TNPAP program recommendations.”  P. Response at 1.

Because Petitioner’s arguments focus, in part, on the notion that the above referenced events were not actions that were required to be reported, I first consider the question of what must be reported under the above regulation.  As noted above, 42 C.F.R. § 424.516(d)(1)(ii) specifically indicates that a nonphysician practitioner and a nonphysician practitioner organization must report “[a]ny adverse legal action.”  One might observe that a conviction of a crime, even a misdemeanor, would certainly appear to fall within the definition of an “adverse legal action” that should have been reported within 30 days.  CMS Ex. 7 at 8.  However, it is the license suspension that is at issue.

It is difficult to imagine an argument that Ms. Poore’s license suspension was not an “adverse legal action” that should have been reported within 30 days.  While conceding, at times, that Ms. Poore’s license was suspended, Petitioner then argues that the suspension was somehow never really imposed or effectuated.  Considering Petitioner’s argument to that effect, I note that the Nursing Order itself does not support the argument that the suspension was held in abeyance.  The Nursing Order, which was signed by the

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Nursing Board on February 17, 2016, clearly stated that Ms. Poore’s license “shall be and is hereby SUSPENDED.”  CMS Ex. 3 at 7.  The Nursing Order does indicate that Ms. Poore “may undergo” an evaluation by TnPAP and with a subsequent recommendation of return to practice, the suspension will be stayed.  CMS Ex. 3 at 7-8.  This, in fact, did occur, with Ms. Poore reportedly beginning the monitoring program with TnPAP on June 10, 2016.  CMS Ex. 7 at 9.  Records from the Tennessee Department of Health Licensure Verification indicate that, as of June 23, 2016, Ms. Poore’s suspension was stayed and the Registered Nurse license and APN certification were placed on probation, to run concurrently with the Tennessee Professional Assistance Program monitoring agreement for not less than three years.  CMS. Exs. 12 and 13.  So, while the suspension was subsequently stayed, the fact remains that Ms. Poore’s license was suspended for approximately four months and should have been reported within 30 days.7  Thus, the evidence supports a conclusion that Petitioner failed to comply with the reporting requirements specified in 42 C.F.R. § 424.516(d)(1)(ii).

Petitioner then argues that Ms. Poore properly notified Medicare of the Nursing Order on the revalidation application she filed for herself and so, as Harrogate’s sole owner, Medicare was on notice and “HFH was not required to separately disclose the information as well.”  P. Response at 3-4.  This argument fails, however, because it is not supported by the timing of the applications.  The initial application in this matter was a revalidation application filed by Harrogate that was received by CMS on May 9, 2019.  CMS Ex. 1 at 1.  In that application, Harrogate identified Debbie A. Poore as a 5% or greater direct owner of Harrogate.  CMS Ex. 1 at 4-5.  In response to the question “Has this individual, under any current or former name or business entity, ever had a final adverse legal action imposed against him/her?,” Petitioner responded “No.”  CMS Ex. 1 at 5.  It was not until September 12, 2019, more than four months later, that Ms. Poore completed a CMS-855I form and disclosed the suspension.  In response to the question “Have you, under any current or former name, ever had a final adverse legal action listed above imposed against you?,” she responded “Yes.”  CMS Ex. 4 at 13.  So, the argument that Medicare could have imputed the knowledge of the suspension from her application to Harrogate’s application is without basis, as notice of the suspension was filed more than four months later and certainly not within the 30 days required by 42 C.F.R. § 424.516(d)(1)(ii).

Petitioner next argues that there really had been no “final” adverse action against Ms. Poore’s license, making it unnecessary to report.  P. Response at 5.  Petitioner asserts that

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“Ms. Poore’s suspension is not final at this stage and will not be until she either completes the terms of the monitoring agreement or fails to meet the terms . . . .”  P. Response at 5.  In support of this argument, Petitioner cites a decision allegedly issued by the Departmental Appeals Board (DAB) in a case identified as “Garner, DAB CR 5447, 2019 HHSDAB LEXIS 822, *15 (2019),”8 holding that a “temporary and stayed revocation of a Practitioner’s license to practice medicine is not a final adverse action.”  P. Response at 5.  This decision provides no support for Petitioner’s position, however.  Initially, it must be noted that, as cited by Petitioner, the decision is by an ALJ and not the DAB.  As the DAB has repeatedly held, “ALJ decisions have no precedential weight and are not binding on the [DAB] or other ALJs.”  Melissa Michelle Phalora, DAB No. 2772 at 14 (2017) (citing Zahid Imran, M.D., DAB No. 2680 at 12 (2016) (other citations omitted)).  Moreover, as discussed above, the instant case does not involve a “temporary and stayed” revocation of a license.  The Tennessee Board of Nursing clearly stated in the Nursing Order, signed by Ms. Poore on February 16, 2016, that Ms. Poore’s license “shall be and is hereby SUSPENDED” and it remained suspended until the action was stayed on June 23, 2016.  CMS Ex. 3 at 7, 11; CMS Ex. 12.  Finally, whether that suspension was a “final” action is not relevant for the purposes of revocation for failure to report pursuant to 42 C.F.R. § 424.535(a)(9).

Under the provisions of 42 C.F.R. § 424.535(a)(9), the question is whether there was a failure to comply with the reporting requirements of, among other regulations, 42 C.F.R. § 424.516(d)(1)(ii).  As discussed above, that regulation mandates reporting of any “adverse legal action” within 30 days.  The suspension of Ms. Poore’s license by the Tennessee Board of Nursing was an adverse legal action.  It was not reported within 30 days.  For the purposes of § 424.535(a)(9), it is not significant whether or not it would be considered a “final” legal action.  Accordingly, I find that Petitioner failed to report the adverse legal action of the suspension of Ms. Poore’s license within 30 days, which is a basis for revocation, pursuant to the provisions of 42 C.F.R. § 424.535(a)(9).

My determination is not premised on whether CMS’s action was required, but, rather, whether CMS or its contractor has a “legal basis” for the revocation action.  Letantia Bussell, M.D., DAB No. 2196 at 10, 13 (2008); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010) (stating if CMS establishes that the regulatory elements necessary for revocation are satisfied, an ALJ may not substitute his or her discretion for that of CMS in determining whether revocation is appropriate under the circumstances).  Based on Ms. Poore’s license suspension, and Petitioner’s failure to timely report the license suspension, Petitioner’s billing privileges were properly revoked.

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2.  The evidence establishes that there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(4).

Revocation is also authorized under the provisions of 42 C.F.R. § 424.535(a)(4), governing “False or misleading information,” if the supplier “certified as ‘true’ misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.”  CMS cites as evidence for violation of this section of the regulations the PECOS web application filed by Petitioner.9   CMS Ex. 10 at 4.  As noted above, the revalidation application filed on behalf of Harrogate identified Debbie A. Poore as a 5% or greater direct owner of Harrogate.  CMS Ex. 1 at 4-5.  In response to the question “Has this individual, under any current or former name or business entity, ever had a final adverse legal action imposed against him/her?,” Petitioner responded “No.”  CMS Ex. 1 at 5.  That form was signed by Ms. Poore on May 9, 2019.  CMS Ex. 1 at 11.  CMS concluded that because the application requires the disclosure of current or past revocation or suspension of a medical license, Petitioner certified false or misleading information.  CMS Ex. 10 at 5.

Petitioner argues that because there was never any final action on Ms. Poore’s license, there was no legal basis to revoke Harrogate’s Medicare enrollment privileges.  P. Response at 5.  This is presumed to be an argument that answering “No” to the question as to whether any owner had a “final adverse legal action imposed against him/her” was not false or misleading.10

“Final adverse legal action” is not defined in the regulations.  However, 42 C.F.R. § 424.502 defines “Final adverse action” to include “[s]uspension or revocation of a license to provide health care by any State licensing authority[.]”  The DAB has held that a “suspension is considered ‘final’ when imposed, despite any pending appeals.”  Angela Styles, M.D., DAB No. 2882 at 9 (2018) (citing Akram A. Ismail, M.D., DAB No. 2429 at 10-11 (2011)).  Moreover, the Secretary has expressly stated that license suspensions are “final” for purposes of the Medicare enrollment regulations irrespective of any ongoing appeal rights.  Ismail, DAB No. 2429 at 11 (quoting 73 Fed. Reg. at 69,777 (“[W]e believe that a final adverse action has occurred when the sanction is imposed and not when a supplier has exhausted all of the appeal rights associated with the action itself.”)).

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While Styles and Ismail involved appeals of a license suspension, Petitioner’s situation is analogous.  The suspension of Ms. Poore’s license was the result of a final order by the Tennessee Board of Nursing (the Nursing Order).  Her ongoing probationary status after suspension of her license does not change the fact there was a final order imposed in her case.

Nor is there is any regulatory significance to the length of a license suspension.  Rather, the regulations give CMS and its contractors the authority to revoke enrollment if a supplier fails to meet supplier requirements at any time.  Petitioner’s license was suspended from February 17, 2016 through June 23, 2016, and the subsequent restoration of her ability to practice in a probationary status does not undo that four month license suspension.  CMS Ex. 3 at 1, 7; CMS Ex. 12.  As a result, the response “No” to the question of whether any owner had a “final adverse legal action imposed against him/her” was false and misleading.

Although Petitioner did not directly argue as such, to fully evaluate Petitioner’s position, I have considered the possibility that while the license suspension was a “final adverse action,” it was not a “final adverse legal action,” as the Tennessee Board of Nursing is not a court of law.  However, a review of the Nursing Order clearly indicates that the Nursing Board has jurisdiction to enforce both the Code and Rules of the Nursing Board and the Rules and Regulations of the State of Tennessee to “require strict compliance with the law and to apply the law to preserve the quality of nursing care provided in Tennessee.”  CMS Ex. 3 at 6.  Thus, it is clear that a license suspension by the Nursing Board is a “legal” action, since it involved enforcement of state regulations and rules.

Petitioner asserts that neither Ms. Poore nor Harrogate intended to mislead Medicare by not including that information on Harrogate’s application received on May 9, 2019.  P. Response at 4.  There is certainly no evidence to suggest an intentional effort to deceive.  However, an intent to deceive is not required by the regulation.  42 C.F.R. § 424.535(a)(4) contains no indication that proof of an intention to convey false information is required, only that Petitioner in fact provided misleading or false information that it certified as true.  Sandra E. Johnson, CRNA, DAB No. 2708 at 15 (2016) (citing Mark Koch, D.O., DAB No 2610 at 4-5 (2014)).  As the DAB stated in Johnson, “once CMS determined that Petitioner submitted Medicare enrollment applications that contained false or misleading statements that Petitioner certified as ‘true,’ CMS had a legal basis for revocation.”  Johnson, DAB No. 2708 at 15.  In this case, Petitioner certified as true the false or misleading statement that there had been no “final adverse legal action” imposed against it or its owner.  CMS Ex. 1 at 4-5, 10-11.  As such, I find there was a legitimate basis for revocation of Petitioner’s enrollment and billing privileges pursuant to the provisions of 42 C.F.R. § 424.535(a)(4).

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3.  I have no jurisdiction to adjudicate the 10-year reenrollment bar

After overturning the revocation based on 42 C.F.R. § 424.535(a)(3) on reconsideration, CMS placed Petitioner under a reenrollment bar beginning July 5, 2020.  CMS Ex. 10 at 6.  Petitioner has not directly requested adjudication of the enrollment bar, but because it asserts harm as a result of CMS’s actions and has requested a stay of those actions,11 I have considered this to be a request to appeal all pending actions.  RFH at 5.  With respect to the reenrollment bar, however, I am unable to consider any request to reduce the length or eliminate it.  The only CMS actions subject to appeal under 42 C.F.R. part 498 are the types of initial determinations specified in 42 C.F.R. § 498.3(b).  The DAB has held that CMS’s determination of the length of the reenrollment bar under section 498.535(c) is not subject to review, explaining as follows:

Although the [reenrollment] bar is a direct and legally mandated consequence of an appealable revocation determination, nothing in Part 498 authorizes the [DAB] to review the length of the bar despite that relationship between a revocation and a reenrollment bar.  Given section 498.3(b)’s precise and exclusive enumeration of appealable determinations, we cannot find a CMS action to be appealable under Part 498 unless section 498.3(b) describes the subject matter of that action.  See North Ridge Care Ctr., DAB No. 1857, at 8 (2002) (stating that “[b]y its very terms, Part 498 provides appeal rights only for these listed actions” (italics added)).  On its face, section 498.3(b) does not describe any matter related to a post-revocation [reenrollment] bar.

Vijendra Dave, M.D., DAB No. 2672 at 10 (2016).

Petitioner cites no contrary authority.  Given this holding by the DAB, I have no regulatory authority to review the length of the reenrollment bar.

4.  The evidence establishes that CMS had a legitimate basis to include Petitioner on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 422.222.

As noted above, CMS made a determination to include Petitioner on the CMS preclusion list, effective July 5, 2020.  CMS Ex. 10 at 6-7.  While Petitioner does not directly raise arguments regarding the basis for the placement on the preclusion list, it has argued that

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revocation and placement on the preclusion list has “harmed HFH’s contracts with private insurance companies” and resulted in the termination of one contract with a private insurer.  RFH at 5.  To ensure that Petitioner has received consideration of all possible arguments, I have considered these statements as appeals of its placement on the preclusion list.

“Preclusion list” is defined in 42 C.F.R. § 422.2 as follows:

[A] CMS compiled list of individuals and entities that –

(1) Meet all of the following requirements:

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in § 424.535(a)(3) of this chapter.

(ii) The individual or entity is currently under a reenrollment bar under § 424.535(c).

(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph (1)(iii), CMS considers the following factors:

(A) The seriousness of the conduct underlying the individual's or entity's revocation.

(B) The degree to which the individual's or entity's conduct could affect the integrity of the Medicare program.

(C) Any other evidence that CMS deems relevant to its determination.

CMS cites as a basis for placing Petitioner on the preclusion list the failure to disclose Ms. Poore’s license suspension on the PECOS Medicare web application and the certification that the information contained therein was true, correct, and complete.  CMS Ex. 10 at 6‑7.  CMS concluded that Petitioner’s conduct in that regard was a threat to the integrity of and a detriment to the Medicare program.  CMS Ex. 10 at 7.

In considering the regulatory criteria for placement on the preclusion list, I find that Petitioner has met the first two factors for its inclusion on the list:  Petitioner’s enrollment

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is revoked, under the provisions of 42 C.F.R. § 424.535(a)(4) and (9), and Petitioner is subject to a 10-year reenrollment bar.  In considering the remaining criteria, I find that the failure to report the license suspension within the specified time period and the certification of false or misleading information demonstrates at least a negligent disregard for the integrity of the Medicare program.  Therefore, I conclude that CMS was warranted in concluding that Petitioner’s conduct was detrimental to the best interests of the Medicare program and that CMS had a legitimate basis for placing Petitioner on the preclusion list.

V.      Conclusion

For the foregoing reasons, I affirm CMS’s revocation of Petitioner’s enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(4) and (9), and affirm CMS’s placement of Petitioner on the preclusion list, pursuant to 42 C.F.R. §§ 422.2 and 422.222.

1. Harrogate is owned by Debbie Poore, A.P.N., R.N.  Ms. Poore has also been certified as a Family Nurse Practitioner (FNP) (CMS Ex. 3 at 11) and has used the FNP post‑nominal in correspondence regarding this matter.  CMS Ex. 7 at 1, 5.  However, the Tennessee Board of Nursing indicated that she was certified as an Advanced Practice Nurse (APN).  CMS Ex. 3 at 6; CMS Ex. 7 at 7.  To avoid confusion, I use the Tennessee Board of Nursing’s APN certification herein.
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2. This case was assigned to me on March 18, 2022.
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3. Petitioner’s proposed exhibit 4, which Petitioner did not file, is CMS Ex. 3, not CMS Ex. 2 as indicated on Petitioner’s proposed exhibit list.
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4. Although Petitioner listed Ms. Poore as a proposed witness, it did not submit her written direct testimony, as required by the Order.  Order at 4 ¶ 4.c.iv, 5 at ¶ 8.
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5. Because a hearing is not necessary, I need not decide whether summary judgment is appropriate.
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6. My findings of fact and conclusions of law are set forth in bold italics below.
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7. Even assuming that the suspension of Ms. Poore’s license was, in fact, held in abeyance or was never effectuated, there remained a disciplinary proceeding that concluded Ms. Poore “violated TENN. CODE ANN. § 63-7-101, et. seq., for which disciplinary action by the Board is authorized.”  CMS Ex. 3 at 7.  Such “disciplinary action” would alone appear to constitute reportable “adverse legal action.”
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8. It appears Petitioner is referring to the Administrative Law Judge (ALJ) decision in William Garner, MD, DAB CR5447 (2019).
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9. While the reconsidered determination indicates this application was signed on June 18, 2019, the application was signed and received on May 9, 2019.  CMS Ex. 10 at 3; CMS Ex. 1 at 1, 11.
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10. Interestingly, and somewhat inconsistent with this argument, Ms. Poore did cryptically disclose a Final Adverse Legal Action in her individual CMS-855I reactivation application, signed on September 12, 2019, by reporting a DUI in 2014 with action taken by the State of Tennessee Nursing Board.  CMS Ex. 4 at 13.
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11. In the RFH, Petitioner requested that the “revocation be stayed pending outcome of this appeal. . . .”  RFH at 5.  I have no regulatory authority to issue such an order during the pendency of these proceedings.
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