Robert B. Rook, MD, DAB CR5503 (2020)

DECISION

The Medicare enrollment and billing privileges of Petitioner are revoked pursuant to 42 C.F.R. § 424.535(a)(9)1 effective March 15, 2018, for noncompliance with 42 C.F.R. § 424.516(d)(1)(ii).

I. Background

Novitas Solutions, a Medicare administrative contractor (MAC) for the Centers for Medicare & Medicaid Services (CMS), notified Petitioner by letter dated February 13, 2018, of the initial determination to revoke his Medicare enrollment and billing privileges effective March 15, 2018. The MAC cited 42 C.F.R. § 424.535(a)(9) as its authority to revoke based on Petitioner's noncompliance with the reporting requirement of 42 C.F.R. § 424.516. The MAC also notified Petitioner that he was subject to a one-year bar to re-enrollment pursuant to 42 C.F.R. § 424.535(c). CMS Exhibit (Ex.) 1 at 16-17.

Petitioner requested reconsideration of the revocation by letter dated April 12, 2018. CMS Ex. 1 at 6. In a reconsidered determination dated June 25, 2018, the MAC upheld

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the revocation, citing as authority 42 C.F.R. § 424.535(a)(9) based on Petitioner's noncompliance with 42 C.F.R. § 424.516(d)(1)(ii). CMS Ex. 1 at 1-4.

On August 23, 2018, Petitioner timely filed a request for hearing before an administrative law judge (ALJ). On August 31, 2018, the case was assigned to me for hearing and decision, and an Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction.

On September 27, 2018, CMS filed a combined prehearing brief and motion for summary judgment (CMS Br.) with CMS Exs. 1 and 2. On October 30, 2018, Petitioner filed a combined prehearing brief and opposition to CMS's motion for summary judgment (P. Br.) with Petitioner's exhibits (P. Exs.) 1 through 3. CMS filed a reply brief on November 6, 2018 (CMS Reply).

Petitioner has not objected to my consideration of CMS Exs. 1 and 2, and they are admitted as evidence. CMS objects to my consideration of P. Exs. 1 through 3 on grounds that they are new evidence and Petitioner has not shown good cause for offering them for the first time before me as required by 42 C.F.R. § 498.56(e). CMS Reply 3-6. Petitioner filed no response to the CMS objections. Petitioner offers P. Ex. 1 to show that CMS was aware that Petitioner's medical license had been temporarily suspended in Arkansas because CMS was denying payment of his claims. P. Br. at 2. P. Ex. 2 is a request from the Arkansas agency that administers the state Medicaid program requesting that Petitioner re-enroll in Arkansas Medicaid and a receipt showing Petitioner paid the associated fee. P. Br. at 2-3. Petitioner offers P. Ex. 3 to show that Petitioner was acquitted or there was a mistrial on all charges of sexual assault. P. Br. at 3. I do not admit P. Exs. 1 through 3 as evidence, not because they are new evidence not previously offered, but because they are simply not relevant to any issue I can decide in this case. As discussed in more detail hereafter, the sole issue is whether Petitioner timely reported the temporary suspension of his Arkansas medical license to CMS. The fact CMS may have been aware of the suspension is not the issue. The issue is whether Petitioner made the required report of the suspension. The fact that Petitioner may have re-enrolled in Arkansas Medicaid is also not relevant because the question is whether he reported the temporary suspension of his medical license. Similarly, the fact Petitioner was not convicted on the criminal charges that caused the temporary suspension does not help me determine whether Petitioner actually reported the temporary suspension to CMS. Accordingly, P. Exs. 1 through 3 are not admitted as evidence.

II. Discussion

A. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as

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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.2 Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)). Petitioner, a physician, is a supplier.

The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for the enrollment in Medicare of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations, such as revocation of enrollment and billing privileges. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505, a supplier such as Petitioner must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.

Suppliers must submit complete, accurate, and truthful responses to all information requested in the enrollment application. 42 C.F.R. § 424.510(d)(2). Pursuant to 42 C.F.R. §§ 424.502 and 424.510(d)(3), a supplier's application to enroll in Medicare must be signed by an authorized official, i.e., one with authority to bind the provider or supplier both legally and financially. The regulation provides that the signature attests to the accuracy of information provided in the application. The signature also attests to the fact that the provider or supplier is aware of and abides by all applicable statutes, regulations, and program instructions. 42 C.F.R. § 424.510(d)(3). Suppliers must meet basic requirements depending on their type of service. 42 C.F.R. §§ 424.505, 424.516, 424.517. Suppliers are also subject to additional screening requirements depending upon the type of service they provide. 42 C.F.R. § 424.518.

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS. 42 C.F.R. § 424.535. CMS or its Medicare contractor may revoke an enrolled supplier's Medicare enrollment and billing privileges and supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535. Pursuant to 42 C.F.R. § 424.535(a)(9), CMS

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may revoke a supplier's enrollment and billing privileges when a supplier fails to comply with the reporting requirements in 42 C.F.R. § 424.516(d)(1)(ii) and (iii). Those reporting requirements, as discussed in more detail hereafter, provide that physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations must report any adverse legal action or a change in practice location to their Medicare contractor within 30 days. 42 C.F.R. § 424.516(d)(1)(ii)-(iii).

If CMS revokes a supplier's Medicare billing privileges, the revocation becomes effective 30 days after CMS or one of its contractors mails the revocation notice 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).

A supplier whose enrollment and billing privileges have been revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498. 42 C.F.R. § 424.545(a). A supplier submits a written request for reconsideration to CMS or its contractor. 42 C.F.R. § 498.22(a). CMS or its contractor must give notice of its reconsidered determination to the supplier, giving the reasons for its determination, specifying the conditions or requirements the supplier failed to meet, and advising of the right to an ALJ hearing. 42 C.F.R. § 498.25. If the decision on reconsideration is unfavorable to the supplier, the supplier has the right to request a hearing by an ALJ and further review by the Departmental Appeals Board (the Board). Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), 498.5. A hearing on the record, also known as an oral hearing, is required under the Act. Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004). The supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records. 42 C.F.R. § 424.545(c).

B. Issues

Whether summary judgment is appropriate; and

Whether there was a basis for the revocation of Petitioner's billing privileges and enrollment in Medicare.

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

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

1. Summary judgment is appropriate.

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CMS has requested summary judgment. As noted above, a supplier whose enrollment has been revoked has a right to a hearing and judicial review, and a hearing on the record is required under the Act. Act §§ 205(b), 1866(h)(1), (j); 42 C.F.R. §§ 498.3(b)(8), (17), 498.5; Crestview, 373 F.3d at 748-51. A party may waive appearance at an oral hearing but must do so affirmatively in writing. 42 C.F.R. § 498.66. In this case, Petitioner has not waived the right to oral hearing or otherwise consented to a decision based only upon the documentary evidence or pleadings. Accordingly, disposition on the written record alone is not permissible, unless CMS's motion for summary judgment has merit.

Summary judgment is not automatic upon request but is limited to certain specific conditions. The Secretary's regulations that establish the procedure for adjudicating Petitioner's case are at 42 C.F.R. pt. 498. 42 C.F.R. §§ 424.545(a), 498.3(b)(17), 498.5(l). The regulations 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 (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 parties were advised by the Prehearing Order, paragraph II.G, 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.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor. The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven. Mission Hosp. Reg'l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment and an ALJ's decision-making in deciding a summary judgment motion differ from that used in resolving a case after a hearing. On summary judgment, the ALJ does not make credibility determinations,

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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 is no genuine dispute as to any material fact pertinent to revocation under 42 C.F.R. § 424.535(a)(9) based on Petitioner's noncompliance with 42 C.F.R. § 424.516(d)(1)(ii) or the effective date of the revocation that requires a hearing in this case. Petitioner asserts that CMS was notified of the suspension of his Arkansas medical license, but he does not assert that he made the report required by 42 C.F.R. § 424.516(d)(1)(ii). The issues raised by Petitioner related to revocation under 42 C.F.R. § 424.535(a)(9) based on violation of 42 C.F.R. § 424.416(d)(1)(ii) are issues of law that must be resolved against Petitioner as a matter of law. The undisputed evidence shows that there is a basis for revocation of Petitioner's Medicare enrollment and billing privileges. Accordingly, summary judgment is appropriate.

2. There is a basis for revocation of Petitioner's billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) based on failure to report adverse legal action within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii).

3. The effective date of revocation of Petitioner's Medicare enrollment and billing privileges is March 15, 2018, 30 days after the date on the notice of the initial determination. 42 C.F.R. § 424.535(g).

a. Facts

The following facts, taken largely from Petitioner's brief, are not disputed and any inferences are drawn in favor of Petitioner.

On about June 20, 2016, Petitioner's medical license was suspended by the Arkansas State Medical Board (state board). P. Br. at 5; CMS Br. at 3 (CMS asserts that a

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temporary emergency suspension occurred on June 9, 2016, but I accept Petitioner's assertion for purposes of summary judgment).

On August 4, 2016, the state board reinstated Petitioner's medical license. P. Br. at 5; CMS Br. at 3.

Petitioner did not notify CMS or the MAC within 30 days of June 20, 2016, that his Arkansas medical license was suspended.

The MAC notified Petitioner by letter dated February 13, 2018, of the initial determination to revoke his Medicare enrollment and billing privileges effective March 15, 2018. CMS Ex. 1 at 16-17.

b. Analysis

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

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

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

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

After reviewing public comments, we are finalizing the provision at proposed § 424.516(d) which would require physicians, NPPs or physician and NPP organizations to notify its [sic] Medicare contractor of a change of ownership, change in practice location or any final adverse action within 30 days of the reportable event. In addition, we believe that physician and NPP organizations' and individual practitioners' failure to comply with the reporting

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requirements within the time frame described above may result in the revocation of Medicare billing privileges and the imposition of a Medicare overpayment from the date of the reportable change.

* * * *

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

73 Fed. Reg. 69,726, 69,780 (Nov. 19, 2008). The drafters make clear that failure to report within 30 days a change of ownership, an adverse legal action, or a change in practice location is a basis for CMS to revoke a physician's billing privileges. Petitioner agreed as a condition for enrolling in Medicare to notify the MAC of "[a]ny adverse legal action" within 30 days. 42 C.F.R. §§ 424.500, 424.505, 424.510, 424.516(d)(1)(ii). CMS may revoke Medicare enrollment if "[t]he provider or supplier did not comply with the reporting requirements specified in § 424.516(d)(1)(ii) and (iii)." 42 C.F.R. § 424.535(a)(9). Petitioner does not dispute that he did not report to the MAC within 30 days the suspension of his Arkansas medical license. Pursuant to 42 C.F.R. § 424.502, suspension or revocation of a state health care license is a final adverse action. Petitioner does not dispute that the suspension of his Arkansas medical license was an adverse legal action within the meaning of 42 C.F.R. § 424.516(d)(1)(ii). Because Petitioner failed to comply with the reporting requirements of 42 C.F.R. § 424.516(d)(1)(ii), there is a basis for revocation of Petitioner's Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9).

Petitioner argues that, due to the suspension of his Arkansas license, CMS and several insurance companies suspended his billing privileges. He reasons that CMS was clearly on notice of the suspension. P. Br. at 2, 5-6. Even if I accept as true for purposes of summary judgment Petitioner's assertion that CMS stopped or suspended Petitioner's Medicare payments and that is good evidence CMS was aware of the suspension, there is no benefit for Petitioner. Pursuant to 42 C.F.R. § 424.516(d)(1)(ii), Petitioner is responsible to report any adverse legal action to the MAC within 30 days of the action. Petitioner's failure to timely report is a basis for revocation of his enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9). There is no dispute that Petitioner did not report the suspension of his Arkansas medical license within 30 days of the suspension, but Petitioner argues that CMS was aware of the suspension. Petitioner points to no authority to support his position that the fact CMS was aware of the adverse legal action relieves Petitioner of his obligation to report or excuses his failure to do so. I conclude that there is a basis for revocation of Petitioner's Medicare enrollment and billing privileges. I have no authority to review the exercise of discretion by CMS or its

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contractor to revoke where there is a basis for revocation. Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff'd, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010). The scope of my authority is limited to determining whether there is a legal basis for revocation of Petitioner's Medicare enrollment and billing privileges. Id. I have concluded that CMS established that Petitioner violated the reporting requirements of 42 C.F.R. § 424.516(d)(1)(ii). Thus, a regulatory basis for revocation exists.

There is no dispute that Petitioner reported the suspension of his Arkansas medical license in the revalidation application he signed on June 28, 2018. CMS Ex. 2; CMS Br. at 3 n.23; P. Br. at 3. However, Petitioner signed the revalidation application roughly two years after the suspension of his medical license. He did not report the June 20, 2016 suspension of his Arkansas medical license within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii). I conclude Petitioner's late reporting is no defense to his failure to comply with 42 C.F.R. § 424.516(d)(1)(ii).

Petitioner argues that the MAC and CMS should have given him a chance to submit a corrective action plan (CAP). P. Br. at 6-8. Petitioner is in error as there is no such requirement. A CAP is available only in the event of revocation under 42 C.F.R. § 424.535(a)(1). Medinn Corp., DAB No. 2928 at 5 (2019); Angela R. Styles, M.D., DAB No. 2882 at 2 n.3 (2018); 42 C.F.R. § 405.809(a)(1); 79 Fed. Reg. 72,500, 72,523, 72,530-31 (Dec. 5, 2014).

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

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III. Conclusion

For the foregoing reasons, Petitioner's Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(9) due to noncompliance with 42 C.F.R.§ 424.516(d)(1)(ii), effective March 15, 2018.

• 1. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.), unless otherwise indicated.
• 2. 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.
• 3. CMS erroneously stated in its brief that Petitioner listed his license suspension on his "August 28, 2018" revalidation application. CMS Br. at 3 n.2. However, the evidence shows that Petitioner signed the application on June 28, 2018, and CMS received that application on July 2, 2018. CMS Ex. 2 at 25, 31, 33.