Dr. Hope Bagley, PhD, LCP, LPC, DAB CR5705 (2020)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through its Medicare administrative contractor, Palmetto GBA, Inc. (Palmetto), revoked the Medicare enrollment and billing privileges of Dr. Hope Bagley, PhD, LCP, LPC (Petitioner) pursuant to 42 C.F.R. § 424.535(a)(4).  The undisputed evidence shows that the Virginia Board of Psychology (VBP) suspended Petitioner's license to practice clinical psychology and that Petitioner failed to report her license suspension on the application to enroll in Medicare.

For the reasons set forth below, I find that CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges, based on her submission of false or misleading information on the enrollment application.

I.  Background and Procedural History

Petitioner is a clinical psychologist licensed in the Commonwealth of Virginia, who was enrolled as a supplier of Medicare services.  See CMS Exhibit (Ex.) 4; see also CMS Ex. 13.  On June 12, 2013, the VBP summarily suspended Petitioner's license to practice clinical psychology.  CMS Ex. 1.  Effective January 13, 2015, the VBP reinstated Petitioner's license on probation, subject to certain terms and conditions.  CMS Ex. 2

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at 1.  By Order dated June 22, 2017, the VBP reinstated Petitioner's psychology license, contingent upon her entry into the Virginia Health Practitioners' Monitoring Program.  CMS Ex. 3 at 2.  The VBP's order characterized the status of Petitioner's license as on "indefinite probation."  Id.

On or about March 15, 2018, Palmetto received a Medicare enrollment application consisting of both a Form CMS-855I and a Form CMS-855R.1 See CMS Ex. 5.  The CMS-855I requested to enroll Petitioner in the Medicare program as a supplier;2 the CMS‑855R requested to reassign Petitioner's billing privileges to her employer, Thrive Counseling LLC3 (Thrive Counseling).  Id.  Section 3 of the CMS-855I required Petitioner to report final adverse legal actions, including license suspensions.  Id. at 13.  The enrollment application asked, "Have you . . . ever had a final adverse legal action listed on page 12 of this application imposed against you?"  Id. at 14.  Petitioner marked "No" in response.  Id.  Palmetto approved Petitioner's application by letter dated May 13, 2015.  CMS Ex. 12.

By letter dated October 4, 2018, Palmetto revoked Petitioner's Medicare enrollment and billing privileges, and imposed a three-year reenrollment bar.  CMS Ex. 6.  The letter explained that Palmetto's determination was based on the following regulation:

42 CFR § 424.535(a)(4) - False or Misleading Information

On your Centers for Medicare & Medicaid Services 855 enrollment application signed on February 22, 2018, you answered "No" in section three of the application, indicating that you did not have any previous adverse legal history.  However, based on information obtained from the Virginia Board of Psychology, your license was suspended from June 12, 2013 through August 19, 2013.  License suspension is specifically listed as an adverse legal action that requires reporting on the 855 application.

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CMS Ex. 6 at 1 (bold type in original).

Petitioner sought reconsideration of the October 4, 2018 revocation determination, asserting that the application was filled out "independently of [Petitioner's] knowledge."  RFH; CMS Ex. 7 at 2-3.  In a letter dated February 28, 2019, a hearing officer in CMS's Provider Enrollment and Oversight Group4 issued an unfavorable reconsidered determination.  CMS Ex. 8.  CMS determined that Petitioner's arguments "do not absolve [Petitioner] of her duty to report her license suspension on her February 22, 2018 Medicare application," and, "[a]s a result, [Petitioner's] failure to report her license suspension constitutes certifying as 'true' misleading or false information."  Id. at 3.

Petitioner timely requested a hearing before an administrative law judge.  RFH (Docket Entry # 1 in the Departmental Appeals Board (DAB) Electronic Filing System (E-File)).  The case was assigned to me and, on May 3, 2019, the Civil Remedies Division acknowledged receipt of Petitioner's hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  Pursuant to the Prehearing Order, CMS submitted a Motion for Summary Judgment (CMS Br.) and eight exhibits (CMS Exs. 1-8).  Petitioner filed a brief in response (P. Br.), which included a cross-motion for summary judgment.  Petitioner did not offer any proposed exhibits.

CMS opposed Petitioner's cross-motion for summary judgment (CMS Reply).  With its reply, CMS filed a Motion for Leave to Supplement Record.  See DAB E-File, Docket Entry # 7.  In the motion, CMS requested leave to file five proposed new exhibits (CMS Exs. 9-13) in response to Petitioner's argument that she did not certify any inaccurate information to CMS in her application(s) and was unaware that Thrive Counseling had submitted the CMS-855I or CMS-855R applications for her.  See CMS Reply at 8.  Petitioner objected to the admission of the proposed exhibits, contending that she had presented no new argument that would justify filing new exhibits.  See DAB E‑File, Docket Entry # 8 at 2.  On August 9, 2019, I issued an order granting CMS's motion, finding that CMS had shown good cause for me to admit CMS Exs. 9-13.  See DAB E‑File, Docket Entry # 9.  Accordingly, I admit CMS Exs. 1-13 into the record.

Neither party offered the written direct testimony of any witness.  Thus, a hearing is not necessary, and I decide this case on the written record without considering whether the standard for summary judgment is met.  Prehearing Order ¶ 10 (stating that a hearing will only be necessary if a party files written direct testimony and the opposing party requests

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cross-examination).  I therefore deny the parties' cross-motions for summary judgment as moot.

II.  Issues

The issue in this case is whether CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges.

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 promulgate regulations governing the enrollment process for providers and suppliers.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  A "supplier" is "a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services . . ." under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

As a clinical psychologist, Petitioner is a 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), 410.20(b)(1).  In order to participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R §§ 424.505, 424.510.  Among the requirements for enrollment is that the enrollment application must be signed:

(3) Signature(s) required on the enrollment application.  The certification statement found on the enrollment application must be signed by an individual who has the authority to bind the provider or supplier, both legally and financially, to the requirements set forth in this chapter. . . . The signature attests that the information submitted is accurate and that the provider or supplier is aware of, and abides by, all applicable statutes, regulations, and program instructions.

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(i) Requirements. The signature requirements specified in paragraphs (d)(3)(i)(A) through (C) of this section outline who must sign the enrollment application for an enrolling provider or supplier. In the case of—

(A) An individual practitioner, the applying practitioner.

42 C.F.R. § 424.510(d)(3)(i)(A).

CMS may revoke a currently enrolled supplier's billing privileges in the following circumstance, among others:

The . . . supplier certified as "true" misleading or false information on the enrollment application to be enrolled . . . in the Medicare program.

42 C.F.R. § 424.535(a)(4).

If CMS revokes a supplier's Medicare enrollment and billing privileges, the revocation generally becomes effective 30 days after CMS or one of its contractors mails the revocation notice to the supplier.  42 C.F.R. § 424.535(g).  After CMS revokes a supplier's Medicare enrollment and billing privileges, CMS bars the supplier from reenrolling in the Medicare program for a minimum of one year, but no more than three years.5  42 C.F.R. § 424.535(c).

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

1. CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) because Petitioner did not disclose her license suspension on her enrollment application, and thereby provided false information in the application.

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CMS may revoke a currently enrolled supplier's billing privileges in the following circumstance, among others:

The . . . supplier certified as "true" misleading or false information on the enrollment application to be enrolled . . . in the Medicare program.

42 C.F.R. § 424.535(a)(4).

CMS argues that it properly revoked Petitioner's Medicare enrollment and billing privileges because Petitioner failed to disclose her license suspension on her Medicare enrollment application.  CMS Br. at 1.  Petitioner does not deny that her license to practice psychology was suspended from June 12 to August 19, 2013.  Petitioner also does not deny that her Medicare enrollment application indicated that she had no final adverse actions to report.  See CMS Ex. 7.

Petitioner argues that she did not complete the Medicare enrollment application and, although the Certification Statement bears what appears to be her signature, the signature is not hers.  RFH; P. Br. at 7 ("[Petitioner] did not prepare the Application, did not sign the Application's Certification Statement, and did not certify anything to CMS.").  However, as CMS argues, to apply for Medicare enrollment, Petitioner herself was required to sign the application.  CMS Reply at 3 (citing 42 C.F.R. § 424.510(d)(3)(i)(A)); see also CMS Ex. 5 at 26 (enrollment application instructions stating that the individual practitioner is the only person who can sign the application; authority to sign may not be delegated to anyone else; and failure to adhere to the requirements may result in revocation from the Medicare program).

Similarly, an appellate panel of the DAB has explained that the enrollment regulations require providers and suppliers to ensure their enrollment applications are complete, accurate, and truthful, and that the practitioner or an authorized official must sign a certification to that effect.6  See Meadowmere Emergency Physicians, PLLC, DAB No. 2881 at 11 (2018).  The Meadowmere panel elaborated, "These requirements ensure . . . that CMS may rely on the accuracy of the information [contained in the enrollment

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application] in administering the Medicare program."  Id.  Based on this reasoning, I agree with CMS that it was entitled to presume that Petitioner signed the Medicare enrollment application at issue.  See CMS Br. at 9; CMS Reply at 3.  Likewise, the fact that CMS offered in evidence a completed, signed application that bears no obvious indications of irregularity is sufficient to meet CMS's burden to make a prima facie case.7

Once CMS makes a prima facie case, "a petitioning provider then has the burden to prove its case, that is, to rebut the basis for the revocation, by a preponderance of the evidence."  Adora Healthcare Services, Inc., DAB No. 2714 at 5 (2016).  Here, Petitioner utterly failed to carry this burden.  In fact, Petitioner has offered no evidence in support of her bare allegations.  Instead, Petitioner asks me to conclude that she did not sign the enrollment applications based on my own comparison of signature images that she accepts as hers with ones that she denies.  P. Br. at 9-10.  Petitioner argues that the signatures are "so clearly dissimilar and distinct that no one can . . . conclude that [Petitioner] signed either Certification Statement."  Id. at 10.  Petitioner's arguments about the similarity or dissimilarity of the signatures are just that ‒ argument ‒ not evidence.8

Petitioner is represented by counsel in this matter.  I expect counsel to understand the distinction between argument and evidence.  Yet, whether by tactical choice or through misjudgment, counsel did not offer Petitioner's statement, under oath, that the signatures at issue are not hers.  See Prehearing Order ¶ 8 (requiring that parties submit the written direct testimony of witnesses as affidavits made under oath or as written declarations signed under penalty of perjury).  Moreover, if Petitioner did not herself wish to make a statement under oath, counsel could have engaged a handwriting expert to offer an opinion on the authenticity of the signatures.  I am not a handwriting expert.  Absent any expert opinion, or even a disavowal of the signatures under oath, I can do no more than speculate that Petitioner may have signed the enrollment application, or she may not have

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done so.  Accordingly, Petitioner has not proved, by a preponderance of the evidence, that she did not sign the enrollment application.

Petitioner's argument that her employer, Thrive Counseling, completed the enrollment application without her knowledge fails for the same reasons.  Again, Petitioner has not stated, under oath, that she had no knowledge of the enrollment application.  Nor has she offered the written direct testimony of any representative of Thrive Counseling.  Further, the documentary evidence on which she relies to support the argument that she was unaware of the application is unreliable on its face.

Petitioner's reconsideration request, which CMS offered as CMS Ex. 7, includes two documents, one typewritten and one handwritten.  The typewritten document purports to have been authored by a credentialing specialist at Thrive Counseling, but the document is unsigned.  CMS Ex. 7 at 1.  Moreover, the letterhead on which the document is typed bears Petitioner's name above that of Thrive Counseling.  Id.  The handwritten document, which Petitioner acknowledges is in her handwriting (see P. Br. at 9), uses identical language to that in the typewritten document to describe Petitioner's license suspension.  Compare CMS Ex. 7 at 1 ("there was only a brief summarily [sic] suspension") with id. at 2-3 ("I was unaware that a summarily [sic] suspension . . . meant I couldn't remain on the panel").  I find it extremely unlikely that two different authors would make the identical grammatical error just described.  From this fact and the facts that the typewritten document is on Petitioner's letterhead and is not signed by the purported author, I infer that it is more likely than not that Petitioner wrote both letters herself.  I therefore conclude that CMS Ex. 7 does not provide any "additional support" (see P. Br. at 10) for Petitioner's contention that she was unaware Thrive Counseling submitted the Medicare enrollment application on her behalf.

In summary, Petitioner has not carried her burden to prove that she did not sign and submit the enrollment application at issue.  Petitioner concedes that the enrollment application failed to report that her license to practice psychology had been suspended, a fact that Petitioner does not dispute.  Therefore, I conclude that CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(4).

2. Petitioner's equitable arguments are not a basis to reinstate her billing privileges.

To the extent Petitioner implies that revocation of her enrollment and billing privileges is inequitable because her employer, and not she herself, was at fault, this is not a basis to reverse the revocation.  CMS's discretionary act to revoke a provider's or supplier's billing privileges is not subject to review based on equity or mitigating circumstances.

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Letantia Bussell, M.D., DAB No. 2196 at 13 (2008).  Rather, "the right to review of CMS's determination by an [administrative law judge] serves to determine whether CMS had the authority to revoke [the provider's or supplier's] Medicare billing privileges, not to substitute the [administrative law judge's] discretion about whether to revoke."  Id. (citation omitted) (emphasis in original).  Once CMS establishes a legal basis on which to proceed with a revocation, then the CMS determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  See id. at 10; see also Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff'd, Ahmed v. Sebelius, 710 F. Supp. 2nd 167 (D. Mass. 2010) (if CMS establishes the regulatory elements necessary for revocation, an administrative law judge may not substitute his or her "discretion for that of CMS in determining whether revocation is appropriate under all the circumstances").

V.  Conclusion

For the foregoing reasons, I affirm CMS's determination to revoke Petitioner's Medicare enrollment and billing privileges.

• 1. In this decision, I refer to the CMS-855I and the CMS-855R collectively as Petitioner's enrollment application.
• 2. CMS notes that the CMS-855I incorrectly identified Petitioner as a new Medicare enrollee.  According to the record, Petitioner was already enrolled as a Medicare supplier at the time.  See CMS Brief (Br.) at 2 n.3.
• 3. Various documents in the record refer to Petitioner's employer as either "Thrive Counseling LLC" (CMS Exs. 5 at 31; 7 at 1) or "Thriveworks" (Request for Hearing (RFH)).
• 4. The Provider Enrollment and Oversight Group is a component of CMS itself, not an administrative contractor.
• 5. Effective November 4, 2019, the regulations governing revocations were revised.  84 Fed. Reg. 47,794 (Sept. 10, 2019).  The revisions authorize CMS to establish a reenrollment bar for a period ranging from one to ten years for a first-time revocation, and up to twenty years for a second revocation.  Id. at 47,794, 47,855 (amending 42 C.F.R. § 424.535(c)).  These revisions took effect well after the initial determination to revoke issued in this case.  I apply the regulations in effect at the time of the initial determination.  Linda Silva, P.A., DAB No. 2966 at 1 n.1 (2019).
• 6. If the enrolling supplier is a group practice or other corporate entity, the supplier cannot itself sign the enrollment application.  In that instance, an authorized official must sign on behalf of the supplier.  42 C.F.R. § 424.510(d)(3)(i)(C).  By contrast, if the enrolling supplier is an individual practitioner, the practitioner herself must sign the enrollment application.  42 C.F.R. § 424.510(d)(3)(i)(A).
• 7. Accepting Petitioner's theory of this case would make it virtually impossible to administer Medicare enrollment.  To ensure that submitted applications were genuine, CMS or its contractors would have to verify the authenticity of every provider or supplier's signature on every Medicare enrollment application.  CMS data show that, in 2018, there were 1,333,259 non-institutional Medicare providers.  See https://www.cms.gov/files/document/2018-mdcr-providers-6.pdf(last visited Sept. 3, 2020).
• 8. Moreover, even if I were to accept Petitioner's unsupported arguments as true, I would conclude that Petitioner's Medicare enrollment application was void from its inception, because Petitioner did not sign it.  As such, Petitioner would remain ineligible to receive Medicare reimbursement.