Erin Engel, DPM, DAB CR5669 (2020)

DECISION

The Medicare enrollment and billing privileges of Petitioner, Erin Engel, DPM, are revoked pursuant to 42 C.F.R. § 424.535(a)(1), based on the suspension of her license to practice podiatric medicine on June 13, 2018.1  Revocation is effective June 13, 2018, the date her license suspension began.  42 C.F.R. § 424.535(g).

I.  Background and Procedural History

CGS Administrators, LLC, a Medicare administrative contractor (MAC), notified Petitioner by letter dated September 27, 2018, that her Medicare enrollment and billing privileges were revoked effective June 13, 2018, pursuant to 42 C.F.R. § 424.535(a)(1) and (9).  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 17-18.  The MAC also advised Petitioner that she was subject to a one-year bar to re-enrollment, effective 30 days from the date of the notice, pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 1 at 18.  The MAC advised Petitioner that revocation under 42 C.F.R.

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§ 424.535(a)(1) was based on the State Medical Board of Ohio (state board) suspending her medical license effective June 13, 2018.  The letter further advised that revocation under 42 C.F.R. § 424.535(a)(9) was due to Petitioner’s failure to report an adverse legal action, as required by 42 C.F.R. § 424.516.  The MAC also advised Petitioner that she could submit, within 30 days of the date of the revocation notice, a corrective action plan (CAP) with respect to the revocation under 42 C.F.R. § 424.535(a)(1).  CMS Ex. 1 at 17.

By letter dated October 5, 2018, Petitioner submitted a CAP.  CMS Ex. 1 at 8-15, 19-20.  CMS elected to treat Petitioner’s CAP as a request for a reconsidered determination.  CMS Ex. 1 at 3 n.2.

In a reconsidered determination dated December 12, 2018, a CMS hearing officer rejected Petitioner’s CAP and upheld the revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(1) and (a)(9).  CMS Ex. 1 at 1-7.  The CMS hearing officer determined that Petitioner’s podiatry license was suspended effective June 13, 2018, and that it was still suspended as of the date of the MAC’s September 27, 2018 initial determination.  CMS Ex. 1 at 4.  Although Petitioner’s reconsideration request asserted her podiatry license was “due to be reinstated on October 13, 2018,” her license was not reinstated as of that date.  CMS Ex. 1 at 4, 19, 21.  Thus, the hearing officer found that Petitioner was not in compliance with the licensure requirements of 42 C.F.R. § 424.516(a)(2) and that her CAP had not corrected that deficiency.  Therefore, the hearing officer rejected the CAP and upheld the revocation pursuant to 42 C.F.R. § 424.535(a)(1).  The hearing officer also upheld revocation under 42 C.F.R. § 424.535(a)(9), finding that Petitioner’s medical license suspension was a final adverse action under 42 C.F.R. § 424.502, which Petitioner had not reported to the MAC within 30 days.  Physician reporting of any final adverse action within 30 days is required by 42 C.F.R. § 424.516(d)(1)(ii).  CMS Ex. 1 at 5.

On March 6, 2019, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ).  On March 13, 2019, the case was assigned to me for hearing and decision and an Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction.

On April 2, 2019, CMS filed a motion to dismiss, or, in the alternative, a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 8.  On May 22, 2019, Petitioner filed her prehearing brief (P. Br.) with no exhibits.  On June 6, 2019, CMS filed a reply brief (CMS Reply).  On June 7, 2019, Petitioner filed another brief in response to CMS’s reply (P. Sur-Reply).  Petitioner has not objected to my consideration of CMS Exs. 1 through 8, and they are admitted and considered as evidence.  With her March 6, 2019 request for hearing, Petitioner filed supplemental documents (Departmental Appeals Board Electronic Filing System (DAB E-File) #1b) totaling 40 pages.  Petitioner did not reoffer the documents as Petitioner’s exhibits.  However, because Petitioner is pro se, out of an abundance of caution I treat the documents as if marked Petitioner’s Exhibit (P.

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Ex.) 1.  CMS did not object to my consideration of the documents in P. Ex. 1, and they are admitted.

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.  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).2  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 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)).  Pursuant to 42 C.F.R. § 424.505, suppliers such as Petitioner must be enrolled in the Medicare program and 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, that is, one with authority to bind the 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

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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 subject to additional requirements to maintain active enrollment status, including reporting requirements.  42 C.F.R. § 424.516(b)-(e).  Physicians, such as Petitioner, are required to report within 30 days, a change in ownership, any adverse legal action, or a change in practice location.  42 C.F.R. § 424.516(d).  Reporting must be accomplished using the enrollment application (CMS-855) applicable to the type of supplier or provider.  42 C.F.R. §§ 424.510, 424.515. 

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or its Medicare contractors 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)(1), CMS may revoke a supplier’s enrollment and billing privileges if CMS determines that the supplier is not in compliance “with the enrollment requirements described in this subpart P [42 C.F.R. §§ 424.500-.570] or in the enrollment application applicable for its provider or supplier type . . . .”  42 C.F.R. § 424.535(a)(1).  Pursuant to 42 C.F.R. § 424.535(a)(9), CMS may revoke Medicare enrollment and billing privileges when a provider or supplier fails to comply with the reporting requirements in 42 C.F.R. § 424.516(d)(1)(ii), which require that physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations report any adverse legal action within 30 days.  42 C.F.R. § 424.516(d)(1)(ii).  Adverse legal actions include a “[s]uspension or revocation of a license to provide health care by any State licensing authority.”  42 C.F.R. § 424.502.

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 its contractor mails notice of its determination to the supplier.  42 C.F.R. § 424.535(g).  However, when CMS revokes a supplier’s billing privileges because the supplier’s license is suspended or revoked, revocation is effective the date of the suspension or revocation of the license.  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.  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 on reconsideration the decision 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.

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§§ 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

The issues in this case are:

Whether the request for hearing should be dismissed because it was not timely filed;

Whether summary judgment is appropriate; and

Whether there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges.

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

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

1.  CMS’s motion to dismiss the request for hearing is denied as the evidence shows Petitioner timely filed her request for hearing. 

CMS moves to dismiss Petitioner’s hearing request, asserting it was not timely filed and Petitioner does not have a right to an ALJ hearing.  CMS Br. at 7 (citing 42 C.F.R. § 498.70(c)).  A request for hearing must be filed within 60 days from the date of receipt of the determination that triggers the right to an ALJ hearing, unless the deadline is extended for good cause.  The date of receipt of the notice of the determination is presumed to be five days after the date on the notice, unless there is a showing that it was received earlier or later.42 C.F.R. §§ 498.22(b)(3), 498.40(a)(2)).  The date on the notice of the reconsidered determination in this case is December 12, 2018.  Under the regulations, Petitioner is presumed to have received the notice on Monday, December 17, 2018.  Therefore, the deadline for filing a hearing request was February 15, 2019.  There is no question that Petitioner did not file her hearing request until March 6, 2019 (postmark), which was 19 days late.

Petitioner argues in her hearing request that she lives in a rural area where mail is regularly incorrectly delivered and she never received the reconsidered determination in the mail.  She asserts that she did not discover that CMS had issued a reconsidered determination upholding the revocation until March 5, 2019, when she spoke with a

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MAC representative after an enrollment application she submitted in January 2019 was not approved because it was filed while the enrollment bar was still in effect. RFH at 1; CMS Exs. 5, 7-8.  CMS contends, however, that these assertions neither rebut the regulatory presumption that Petitioner received the reconsidered determination within five days of the date of the notice, nor constitute good cause for extending the filing deadline beyond the 60-day deadline.  CMS Br. at 9-11.  In support, CMS cites Medstar Health, Inc., DAB No. 2684 (2016), for the proposition that “‘the mere assertion that Petitioner did not receive the reconsidered determination by U.S. mail’ is insufficient to rebut the regulatory presumption that a letter was received within five days of mailing.”  CMS Br. at 9, citing Medstar Health, Inc., DAB No. 2684 at 7.  Medstar is distinguishable because, there, the Board found a statement “made by an ‘authorized official’ not claiming any personal knowledge of the situation” was “not probative evidence” of Medstar Health Inc.’s claim that it had not received the reconsidered determination by mail.  Medstar Health, Inc., DAB No. 2684 at 7.  In this case, Petitioner clearly has personal knowledge and could testify as to whether or not she received the December 12, 2018 reconsidered determination by mail.

Further, the record supports Petitioner’s assertion that she did not receive the reconsidered determination mailed on December 12, 2018.  After the reconsidered determination was issued, Petitioner mailed a CMS-855I enrollment application to re-enroll in Medicare, which the MAC received on January 23, 2019.  CMS Exs. 4-5.  By letter dated February 12, 2019, the MAC notified Petitioner it had not processed the application because it had been submitted prior to the expiration date of her re-enrollment bar.  CMS Ex. 5.  On February 27, 2019, Petitioner mailed a request for reconsideration pertaining to her January 23, 2019 enrollment application and requested “an immediate lifting of [her] 1-year disbarment” from enrollment in Medicare.  CMS Ex. 6 at 1, 27.  Petitioner called the MAC on March 5, 2019, and spoke with a MAC representative who wrote in the MAC’s “application notes” that she informed Petitioner her January 23, 2019 application was “returned” and that “she does not have appeal rights for a returned application.”  CMS Exs. 7-8; RFH at 1.  The MAC representative also memorialized that CMS had issued a reconsidered determination pertaining to Petitioner’s revocation on December 12, 2018, but Petitioner “claim[ed] that she did not receive that letter, and asked me to send it to her.”  CMS Ex. 7.  The MAC representative emailed the December 12, 2018 reconsidered determination to Petitioner later the same day.  CMS Ex. 8.  The following day, March 6, 2019, Petitioner filed her request for an ALJ hearing.  RFH at 6.

The evidence supports Petitioner’s assertions that she did not receive the December 12, 2018 reconsidered determination in the mail.  Furthermore, CMS has moved for summary judgment.  Therefore, all inferences must be drawn in Petitioner’s favor if the matter is to be resolved on summary judgment, as I conclude is appropriate.  I conclude that Petitioner has sufficiently rebutted the presumption that she received the reconsidered determination within five days after the date of the notice.  To conclude otherwise would require a hearing after which I could weigh any testimony offered by Petitioner.  The

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evidence currently in the record shows it is more likely than not that Petitioner did not receive the reconsidered determination until March 5, 2019, the date it was emailed to her by the MAC representative.  Petitioner then filed her hearing request the next day.  Therefore, I conclude that Petitioner’s hearing request was timely filed and that I have jurisdiction to review the underlying merits of this case.

2.  Summary judgment is appropriate.

CMS moves for summary judgment on the grounds that there is a basis to revoke Petitioner’s enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1).  CMS does not request summary judgment that there is a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(9).  CMS Br. at 11 n.1.  CMS may revoke Medicare enrollment and billing privileges for any of the reasons authorized by 42 C.F.R. § 424.535(a).  Because I conclude that summary judgment as to 42 C.F.R. § 424.535(a)(1) is appropriate, I need not further consider the alternative basis.

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)(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 to be followed in adjudicating Petitioner’s case are found at 42 C.F.R. pt. 498.  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., Illinois 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 Board also has recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Federal Rule of Civil Procedure 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order paragraph II.D. and G.  The parties were given notice by the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Federal Rule of Civil Procedure 56 will be applied.  The parties were advised that a fact alleged and not specifically denied may be accepted as true for purposes of ruling upon a

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motion for summary judgment.  The parties were also advised that on summary judgment evidence is considered admissible and true unless a specific objection is made.  Prehearing Order ¶ II.G.

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 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.  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); 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 differs from 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 for the allocation of the burden of persuasion or the quantum of evidence in 42 C.F.R. pt. 498.  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).

As explained in greater detail below, the material facts in this case are not disputed and there is no genuine dispute as to any material fact that requires a trial.  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 to the undisputed facts of this case.  Accordingly, summary judgment is appropriate.

3.  The state board suspended Petitioner’s podiatry license effective June 13, 2018, and she was not authorized to practice podiatry

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during the license suspension, in violation of the supplier requirements of 42 C.F.R. §§ 410.20(b) and 424.516(a)(2).

4.  Petitioner’s violations of 42 C.F.R. §§ 410.20(b) and 424.516(a)(2), which were not resolved by Petitioner’s CAP, are a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1).

5.  The effective date of revocation of Petitioner’s Medicare enrollment and billing privileges is June 13, 2018, the date the suspension of Petitioner’s license to practice podiatry in Ohio became effective.  42 C.F.R. § 424.535(g).

a. Facts

The material facts are not disputed and any inferences are drawn in Petitioner’s favor on summary judgment.

Petitioner’s license to practice as a doctor of podiatric medicine in the State of Ohio was issued on October 20, 2005.  CMS Ex. 1 at 16, 21.  Petitioner does not dispute that she could not lawfully practice medicine in Ohio without an active license issued by the state.

Petitioner entered into a “One-Bite Consent Agreement” (Consent Agreement) with the state board, effective June 13, 2018.  Under the Consent Agreement Petitioner’s podiatry license was suspended indefinitely, but not less than 120 days.  CMS Ex. 1 at 9-15; RFH at 4; P. Br. at 3; CMS Br. at 2.

In the Consent Agreement, Petitioner acknowledged that she was not licensed to practice podiatry in another state or jurisdiction.  CMS Ex. 1 at 9.  Petitioner also admitted that from about 2014 to 2017, she wrote fraudulent prescriptions for controlled substances using a family member’s name in order to obtain drugs for her personal use and when initially questioned she gave false information.  CMS Ex. 1 at 9.

Petitioner does not allege that she notified the MAC or CMS of the suspension of her state medical license within 30 days of June 13, 2018, the date of suspension of her medical license.  RFH; P. Br.; P. Sur-reply.

The MAC’s notice of the initial determination to revoke Petitioner’s enrollment and billing privileges is dated September 27, 2018.  CMS Ex. 1 at 17-18.

Petitioner’s podiatry license remained suspended until November 14, 2018, when Petitioner and the state board entered into a “One-Bite Reinstatement Consent

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Agreement” that lifted the suspension.  CMS Ex. 2 at 30-36, RFH at 2; P. Br. at 3; CMS Br. at 4-5, 14.

b. Analysis

CMS requests summary judgment that there was a basis for revoking Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1).  I conclude that there was a basis for revocation.3

CMS may revoke the Medicare billing privileges of a provider or supplier if:

(1) Noncompliance.  The provider or supplier is determined to not be in compliance with the enrollment requirements described in this subpart P [42 C.F.R. §§ 424.500-.570] 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. § 424.535(a)(1).  The referenced enrollment requirements include the requirements of 42 C.F.R. § 410.20(b) (physician must be legally authorized to practice in state) and 42 C.F.R. § 424.516(a)(2) (compliance with state licensure requirements is required for Medicare enrollment).  Akram A. Ismail, M.D., DAB No. 2429 at 5-6 (2011).  Petitioner agreed by enrolling in Medicare that she was aware of and would abide by all applicable statutes, regulations, and program instructions (42 C.F.R. § 424.510(d)(3)), which clearly includes the program participation requirements of 42 C.F.R. §§ 410.20(b) and 424.516(a)(2).

Pursuant to 42 C.F.R. § 424.516, CMS must verify, and a provider or supplier must certify, that it continues to be in compliance with federal and state requirements.  The regulation provides in relevant part:

(a) Certifying compliance.  CMS enrolls and maintains an active enrollment status for a provider or supplier when that provider or supplier certifies that it meets, and continues to meet, and CMS verifies that it meets, and continues to meet, all of the following requirements:

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(1)  Compliance with title XVIII of the Act and applicable Medicare regulations.

(2)  Compliance with Federal and State licensure, certification, and regulatory requirements, as required, based on the type of services or supplies the provider or supplier type will furnish and bill Medicare.

42 C.F.R. § 424.516(a)(1)-(2) (emphasis added).

Petitioner’s license to practice medicine was issued by the State of Ohio.  Under Ohio law, “[n]o person shall engage in the practice of podiatric medicine and surgery without a current, valid license to practice podiatric medicine and surgery issued by the state medical board.”  Ohio Rev. Code § 4731.60(A)(1) (2001).  Ohio law further specifies that “[n]o person shall practice podiatric medicine and surgery after the person’s license has been revoked, or if suspended, during the time of such suspension.”  Ohio Rev. Code § 4731.60(A)(3).  There is no question that during the suspension of Petitioner’s podiatry license, she was not legally authorized to practice podiatry in Ohio.  Therefore, during the period of the suspension, Petitioner was unable to satisfy the enrollment requirements of 42 C.F.R. §§ 410.20(b) and 424.516(a)(2).  Accordingly, I conclude that there was a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) for violations of 42 C.F.R. §§ 410.20(b) and 424.516(a)(2).

I have concluded that there was a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1).  Having found that there is a basis for revocation, I have no authority to review the exercise of discretion by CMS to revoke Petitioner’s Medicare enrollment and billing privileges.  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.  Dinesh Patel, M.D., DAB No. 2551 at 10-11 (2013); Fady Fayad, M.D., DAB No. 2266 at 16 (2009); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 16-17, 19 (2009)

I also conclude that the effective date of revocation is June 13, 2018.  The effective date of revocation is determined pursuant to 42 C.F.R. § 424.535(g), which provides:

(g) Effective date of revocation.  Revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier, except if the revocation is based on Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not

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to be operational.  When a revocation is based on a Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational, the revocation is effective with the date of exclusion or debarment, felony conviction, license suspension or revocation or the date that CMS or its contractor determined that the provider or supplier was no longer operational.

42 C.F.R. § 424.535(g) (emphasis added).

In this case, the revocation was based on a license suspension, which was effective June 13, 2018.  CMS Ex. 1 at 9, 15.  Accordingly, I conclude that the revocation of Petitioner’s Medicare enrollment and billing privileges was also effective June 13, 2018.  42 C.F.R. § 424.535(g).

In her request for hearing, Petitioner requested immediate termination of the re-enrollment bar.  RFH.  Petitioner also argues that the one-year re-enrollment bar should have begun the effective date of revocation; or that it should have ended with the end of the suspension of her medical license, and that it was error for the MAC to make the effective date of the re-enrollment bar 30 days after the date of the notice of the initial determination.  P. Br. at 3; P. Sur-Reply at 2.  I have no ability to accord Petitioner any relief based on her arguments.

The MAC imposed a one-year re-enrollment bar against Petitioner.  CMS Ex. 1 at 18.  A one-year re-enrollment bar is the minimum authorized by 42 C.F.R. § 424.535(c).  Furthermore, the determination of the MAC or CMS of the duration of a re-enrollment bar is not an “initial determination” subject to ALJ review.  42 C.F.R. §§ 498.3(b); 498.5(l); Vijendra Dave, M.D., DAB No. 2672 at 11 (2016) (“the only CMS actions subject to appeal under [42 C.F.R.] Part 498 are the types of initial determinations specified in section 498.3(b)[,]” and “do not . . . include . . . the duration of a revoked supplier’s re-enrollment bar.”). 

The effective date of the re-enrollment bar is dictated by regulation as “30 days after CMS or its contractor mails notice of the revocation . . . .”  42 C.F.R. § 424.535(c) (emphasis added).  I have no authority to refuse to follow or otherwise invalidate an applicable regulation.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).  The MAC mailed notice of the revocation to Petitioner

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on September 27, 2018.  Therefore, as a matter of law, the minimum one-year re-enrollment bar started 30 days after September 27, 2018.  CMS Ex. 1 at 17-18; 42 C.F.R. § 424.535(c).4

Petitioner argues she never treated patients while impaired; she completed an intensive treatment program approved by the state board; and, since November 2018, she has been treating patients in Ohio, many of whom “are in underserved areas and are unable to leave their homes or be transported to outside doctors’ offices.”  P. Br. at 3; RFH at 4.  I accept Petitioner’s assertions as true for purposes of summary judgment.  While it is clear Petitioner has made great efforts to regain her license and to serve her community, her arguments are effectively requests for equitable relief.  However, I do not have the authority to grant equitable relief in any form.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief . . . .”).  Petitioner points to no authority by which I may grant her relief from the applicable regulatory requirements and, as noted above, I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14.

III.  Conclusion

For the foregoing reasons, Petitioner’s Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R.§ 424.535(a)(1), based on failure to maintain enrollment requirements of 42 C.F.R. §§ 410.20(b) and 424.516(a)(2).  Revocation of Petitioner’s Medicare enrollment and billing privileges was effective June 13, 2018, and re-enrollment was barred for one year.

• 1. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the initial determination in this case, unless otherwise stated.
• 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. The refusal of CMS or its contractor to accept Petitioner’s CAP is not an initial determination subject to my review.  42 C.F.R. §§ 405.809, 424.545(a), 498.3(b); Conchita Jackson, M.D., DAB No. 2495 at 5-7 (2013).
• 4. Petitioner’s re-enrollment bar expired on October 27, 2019, one year and 30 days after the date on the MAC’s notice of revocation.  CMS Ex. 1 at 17-18; CMS Ex. 7 (re-enrollment bar ran through October 26, 2019).