Elsie J. Manton, LCSW, ACSW, DAB CR5143 (2018)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) sustaining a Medicare contractor’s determination to deny the application of Petitioner, Elsie J. Manton, LCSW, ACSW, to participate in the Medicare program.

I.  Background

CMS moved for summary judgment.  With its motion it filed a brief and seven proposed exhibits that are identified as CMS Ex. 1-CMS Ex. 7.  Petitioner filed a brief in opposition to the motion and filed 13 proposed exhibits that are identified as P. Ex. 1-P. Ex. 13.

It is unnecessary that I rule as to the admissibility of any of these proposed exhibits inasmuch as I grant summary judgment based entirely on facts that are not disputed.  I cite to some of the proposed exhibits in this decision but only to illustrate undisputed facts.

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II.  Issue, Findings of Fact and Conclusions of Law

A.  Issue

The issue is whether a Medicare contractor properly denied Petitioner’s application to participate in the Medicare program.

B.  Findings of Fact and Conclusions of Law

Petitioner applied to participate in the Medicare program as a supplier of services.  CMS Ex. 2-CMS Ex. 4.  In her application, she listed an address, 7595 Cinebar Drive, Boca Raton Florida, as her practice location and December 28, 2017, as the proposed effective date of her enrollment in Medicare.  Id.

On March 1, 2018, a representative of the contractor made a site visit to the Cinebar Drive address.  He discovered that the address was a residential condominium, that he could not gain access to it, and that there was nothing at the premises identifying Petitioner’s practice or her business hours.  CMS Ex. 5 at 1.  The representative called Petitioner and she advised him that she no longer resided at that address and that she had not yet begun providing items or services to Medicare beneficiaries.  Id.

A supplier must comply with Medicare participation requirements in order to qualify to participate in the program.  42 C.F.R. § 424.510.  An applicant to participate as a supplier must complete an application which, among other things, requires the applicant to disclose his or her actual practice location.  42 C.F.R. § 424.510(d)(2).  Furthermore, the applicant must be operational in order to participate.  42 C.F.R. § 424.510(d)(6).  In order to be operational a participating supplier must have a qualified physical practice location, must be open to the public, and must be staffed, equipped, and stocked so as to be able to furnish services.  42 C.F.R. § 424.502.

An applicant for participation must be operational at the address that it has represented as its practice location.  Care Pro Home Health, Inc., DAB No. 2723 at 6 (2016); Foot Specialists of Northridge, DAB No. 2273 at 8-9 (2017).  An applicant will not qualify for participation if he, she, or it tells CMS that he, she, or it is providing services at one location when he, she, or it offers those services at some other location.  Nor may an applicant who is not actually providing items or services qualify for participation.

The undisputed facts plainly establish that Petitioner was not operational and thus, did not qualify to participate as a Medicare supplier.  The address that she supplied to the contractor in her participation application was incorrect.  Moreover, and by her own admission, she was not actually supplying services as of December 28, 2017 – the date

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that she represented in her application as the date of onset of her providing services – or even in March 2018 when the contractor’s representative attempted to perform an onsite inspection.

Petitioner does not challenge any of the facts.  She argues that in the interim period between the date that she filed her application and the date when the contractor’s representative attempted to perform an onsite inspection she changed her residence and made new plans concerning when she would begin practicing.  She contends that she had no way of advising the contractor of these changed plans and she argues, therefore, that she should be held harmless for the misstatements of fact in her application.  Furthermore, she asserts that she should have been granted the opportunity to file a corrective action plan with the contractor that corrected her application’s misstatements.

These assertions are no defense to CMS’s motion.  She had an obligation to assure that the information that she filed with the contractor was correct and accurate.  Saying that she couldn’t determine how to advise the contractor of her change in plans is no excuse.  Indeed, she could have filed an amended application or a new one at any time, stating accurately where she intended to practice and when.

There is nothing in the regulations that requires CMS or the contractor to afford Petitioner the opportunity to file a corrective action plan.  As Petitioner notes, corrective action plans are sometimes offered to Medicare participants in order to allow them to correct deficiencies in their compliance with participation requirements.  But, Petitioner was not a Medicare participant.  Rather, she was an applicant for participation and the opportunity to file a corrective action plan did not extend to her.