Therese R. Grenchik, FNP, DAB CR5157 (2018)

DECISION

Petitioner, Therese R. Grenchik, FNP, meets the requirements of 42 C.F.R. § 410.75(b)1 to enroll and maintain her enrollment in Medicare and billing privileges as a nurse practitioner.  There is no basis for “retroactive denial” or revocation of Petitioner’s enrollment in Medicare.

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I.  Background

Noridian Healthcare Solutions (Noridian), a Medicare Administrative Contractor (MAC), notified Petitioner by letters dated July 14, 2016, and August 31, 2016, that her “application to enroll in Medicare is being retroactively denied effective March 5, 2014.”  Centers for Medicare & Medicaid Services (CMS) Exhibits (Exs.) 4, 6.  Noridian cited 42 C.F.R. § 424.530(a)(1) as the basis for retroactive denial of enrollment on the grounds that Petitioner does not have a master’s degree in nursing.  The July 14 notice cited 42 C.F.R. § 410.69(b) as the regulatory authority that required Petitioner to have a master’s degree, but that provision is related to a certified registered nurse anesthetist or an anesthesiologist’s assistant and is not applicable to Petitioner, who is a nurse practitioner.  The August 31 notice, which appears to be an amended or corrected notice of initial determination, though not stated to be such, cited 42 C.F.R. § 410.75(b) as the regulatory authority that required Petitioner to have a master’s degree.  Petitioner was enrolled and seeks to maintain her enrollment in Medicare as a nurse practitioner, and she is subject to the requirements of 42 C.F.R. § 410.75, as discussed hereafter.  CMS Exs. 4, 6.  Therefore, I treat the August 31, 2016 notice of initial determination as setting forth the regulatory basis for the MAC’s initial determination.

Petitioner requested reconsideration of the initial determination by letter dated October 18, 2016.  The MAC notified Petitioner by letter dated December 14, 2016, that an unidentified individual upheld the initial determination.  The reconsidered determination was that Petitioner did not have a master’s degree in nursing as required by 42 C.F.R. § 410.75(b) for nurse practitioners to enroll in Medicare and receive billing privileges.  The reconsidered determination makes no specific findings related to whether Petitioner obtained Medicare billing privileges prior to January 1, 2001, as Petitioner argued on reconsideration.  CMS Ex. 7.

Petitioner requested review by an administrative law judge (ALJ) on February 1, 2017.  The case was assigned to me on February 10, 2017, and an Acknowledgment and Prehearing Order was issued at my direction.  On March 3, 2017, CMS filed a prehearing brief and motion for summary judgment with CMS Exs. 1 through 7.  On April 11, 2017, Petitioner filed a prehearing brief and response in opposition to the CMS motion for summary judgment with Petitioner’s exhibits (P. Exs.) 1 through 3.  On April 20, 2017, CMS filed a motion to remand this case.  Petitioner filed a brief opposing remand on April 21, 2017.  CMS filed a reply in further support of remand on April 24, 2017.  I denied the motion to remand on April 26, 2017.  I denied CMS’s motion for summary judgment on July 6, 2017.

On July 18, 2017, Petitioner filed a written waiver of her right to a hearing and requested judgment on the documentary evidence and pleadings.  CMS filed no objection or offer to show good cause to convene an oral hearing.  42 C.F.R. § 498.66(b)(2).  I accepted Petitioner’s waiver and established a briefing schedule.  Petitioner filed her brief on the

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merits (P. Br.), with P. Exs. 4 through 7 on August 12, 2017.  CMS filed its brief (CMS Br.) on August 19, 2017.  CMS filed a reply brief (CMS Reply) on September 18, 2017.  Petitioner did not file a reply brief.

The parties have not objected to my consideration of CMS Exs. 1 through 7 and P. Exs. 1 through 3, 6, and 7, and these exhibits are admitted and considered as evidence.  CMS objects to my consideration of P. Exs. 4 and 5.  CMS asserts that the documents should be excluded because evidence that Petitioner was licensed in California as a registered nurse (P. Ex. 4) and certified as a nurse practitioner (P. Ex. 5) is not relevant to the determination of whether Petitioner was enrolled in Medicare prior to January 1, 2001.  CMS Reply at 5.  The regulation at 42 C.F.R. § 410.75(b) requires that a nurse practitioner be licensed in the state in which nurse practitioner services are furnished.  Thus, Petitioner’s exhibits showing that she is licensed and certified in California are clearly relevant to whether she meets the requirements of 42 C.F.R. § 410.75(b).  Furthermore, and perhaps more significantly, P. Exs. 4 and 5 show that Petitioner was originally licensed as a registered nurse July 23, 1996 (CMS Ex. 4), and a nurse practitioner July 29, 1996 (CMS Ex. 5).  This evidence is consistent with and supportive of other evidence offered by Petitioner showing she was practicing as a nurse practitioner well before January 1, 2001.  Accordingly, I conclude that Petitioner’s Exs. 4 and 5 are relevant, there is no question as to their authenticity, and they are admitted as evidence.

II.  Discussion

A.  Applicable Law

Section 1831 of the Social Security Act (Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare‑eligible beneficiaries may only be made to eligible providers and suppliers.2  Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review in the event of denial or non‑renewal.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).

Pursuant to 42 C.F.R. § 424.505, a provider or supplier 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.  The Medicare

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program authorizes Medicare Part B payments for services provided by an enrolled nurse practitioner as specified in 42 C.F.R. § 410.75(c).  A nurse practitioner must meet the following requirements of 42 C.F.R. § 410.75(b) to enroll in Medicare and be granted billing privileges:

(b)  Qualifications.  For Medicare Part B coverage of his or her services, a nurse practitioner must be a registered professional nurse who is authorized by the State in which the services are furnished to practice as a nurse practitioner in accordance with State law, and must meet one of the following:

(1)  Obtained Medicare billing privileges as a nurse practitioner for the first time on or after January 1, 2003, and meets the following requirements:

(i)  Be certified as a nurse practitioner by a recognized national certifying body that has established standards for nurse practitioners.

(ii)  Possess a master’s degree in nursing or a Doctor of Nursing Practice (DNP) degree.

(2)  Obtained Medicare billing privileges as a nurse practitioner for the first time before January 1, 2003, and meets the standards in paragraph (b)(1)(i) of this section

(3)  Obtained Medicare billing privileges as a nurse practitioner for the first time before January 1, 2001.

42 C.F.R. § 410.75(b) (emphasis added).

CMS may deny a supplier’s enrollment application if a supplier does not meet Medicare enrollment requirements.  42 C.F.R. § 424.530(a)(1).  A supplier enrollment is considered denied when a supplier is determined to be “ineligible to receive Medicare billing privileges for Medicare covered items or services provided to Medicare beneficiaries” for one or more of the reasons listed in 42 C.F.R. § 424.530.  42 C.F.R. § 424.502.  The MAC notifies a supplier in writing when it denies enrollment and explains the reasons for the determination and provides information regarding the supplier’s right to appeal.  42 C.F.R. § 498.20(a).  The regulations provide that a denial of enrollment becomes effective within thirty days of the initial denial notification.  42 C.F.R. § 424.530(e).

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If a provider or supplier is accepted for enrollment and granted billing privileges, the enrollee is subject to revalidation every five years or as often as CMS deems necessary.  42 C.F.R. § 424.515.  CMS may revoke an enrolled provider or supplier’s Medicare billing privileges and any provider or 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), if a provider or supplier is determined to not be in compliance with the Medicare enrollment requirements, CMS may revoke his or her billing privileges.  Revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier, except in certain circumstances not applicable here.  42 C.F.R. § 424.535(g).  In addition, if a provider or supplier has their billing privileges revoked, there is a re‑enrollment bar which begins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of one year, but not more than three years.  42 C.F.R. § 424.535(c).

Congress required the Secretary to issue regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to section 1866(h)(1) and (j)(8), a provider or supplier whose enrollment application or renewal application is denied or whose Medicare enrollment and billing privileges are revoked is entitled to a hearing before an ALJ and Board review, followed by judicial review.  Pursuant to 42 C.F.R. § 424.545(a), a provider or supplier denied enrollment in Medicare or whose Medicare enrollment and billing privileges are revoked has the right to administrative and judicial review in accordance with 42 C.F.R. pt. 498.  Appeal and review rights are specified by 42 C.F.R. § 498.5.  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 related to the allocation of the burden of persuasion and the quantum of evidence required to prove a fact 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 F. App’x 181 (6th Cir. 2005).  According to the Board decisions, a preponderance of the evidence is required to establish a fact that is in dispute; CMS bears the burden to make a prima facie showing of a basis for its action; and Petitioner bears the burden of persuasion to show by a preponderance of the evidence that it met enrollment requirements.  Pursuant to the enrollment regulations, the supplier bears the burden to demonstrate that it meets enrollment requirements.  42 C.F.R. § 424.545(c).

B.  Issues

Whether Petitioner was first enrolled in Medicare prior to January 1, 2001, and therefore meets the requirement for a nurse practitioner under 42 C.F.R. § 410.75(b)(3).

Whether there was a basis for revocation or retroactive denial of Petitioner’s Medicare enrollment and billing privileges.

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

1.  Petitioner meets the regulatory qualifications for a nurse practitioner under 42 C.F.R. § 410.75(b)(3).

2.  There is no basis for revocation of Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) or retroactive denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(1) because she was first enrolled in Medicare prior to January 1, 2001, and meets the requirement for enrollment of 42 C.F.R. § 410.75(b)(3).

a.  Facts

Petitioner was licensed as a registered nurse and nurse practitioner in California in 1996.  Petitioner was certified by the U.S. Air Force as a primary care nurse practitioner;  certified by the American Nurses Association as a family nurse practitioner, and has a master’s degree in education.  P. Exs. 4, 5, 6.  There is no dispute that Petitioner met the licensure requirement established by 42 C.F.R. § 424.75(b), based on her license as a registered nurse and nurse practitioner in California.  The preponderance of the evidence also shows that her licenses were continuously in effect beginning in 1996.

On May 12, 2016, the MAC notified Petitioner that she must revalidate her Medicare enrollment record not later than July 31, 2016.  I infer, based on the notice, that Petitioner must have been enrolled in Medicare at that time with billing privileges, as the MAC threatened to withhold payments if Petitioner failed to revalidate on time.  The notice also showed that Petitioner had reassigned her right to claim payment to her employer.  CMS Ex. 1.  On June 29, 2016, the MAC acknowledged receipt of Petitioner’s revalidation application and requested that she provide a copy of her diploma or a letter from a registrar to show that she had a master’s or doctoral degree in nursing.  CMS Ex. 2.  CMS Exs. 1 and 2 do not show when Petitioner last enrolled in Medicare or her medical specialty or practice.  On about July 6, 2016, Petitioner responded to the MAC that she had a master’s degree in education not nursing and provided copies of her diploma.  CMS Ex. 3.

The MAC subsequently issued the initial determination letters dated July 14, 2016 and August 31, 2016, retroactively denying Petitioner’s enrollment to March 5, 2014.  CMS Exs. 4, 6.  Based on the MAC’s characterization of its initial determination as a

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retroactive denial of enrollment,3 I infer that Petitioner’s most recent enrollment in Medicare must have been effective about March 5, 2014, otherwise that date has no particular significance.  CMS and Petitioner agree that if the denial or revocation of enrollment is upheld, the effective date should be August 13, 2016, which is 30 days after the notice of initial determination dated July 14, 2016.  CMS Reply at 2-3.  In fact, CMS requested on April 20, 2017, that I remand this case to permit CMS to change the effective date of the action, but Petitioner opposed remand, and the request for remand was denied on April 26, 2017.

Petitioner submitted the declaration of Anne Platt marked as P. Ex. 2 without objection by CMS.  Ms. Platt states based on personal knowledge that at the time of making her declaration she was the Chief Executive Officer at Sutter Amador Hospital.  She states that Sutter Amador acquired “Rural Health Clinics” in Pioneer and Plymouth California in 2004.  She states that the records, including Medicare and personnel records, of the acquired clinics are no longer available and the contractor who handled Medicare enrollment and processed claims for the clinics is also no longer available.  Ms. Platt attests that the records of Sutter Amador show that between 1996 and 2004:  Petitioner was licensed as a nurse practitioner in California; enrolled in Medicare as a nurse practitioner employed by the “Rural Health Clinics” as a nurse practitioner; and that Petitioner’s services as a nurse practitioner were billed to Medicare.  P. Ex. 2 at 1.

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Petitioner also submitted the declaration of Robert F. Ross, MD, MPH.  Dr. Ross states based on personal knowledge that Petitioner was employed by “Rural Health Clinics” in Pioneer and Plymouth California between 1996 and 2004, and he was Petitioner’s supervising physician.  Dr. Ross states that between 1996 and 2004, Petitioner was licensed as a nurse practitioner in California, she was enrolled in Medicare as a nurse practitioner, and her services as a nurse practitioner were billed to Medicare.  P. Ex. 3 at 1.

Petitioner also submitted her affidavit, in which she states she obtained her registered nurse license and nurse practitioner certificate in California in July 1996, effective in May 1996, and she remained licensed and certified to the date of her affidavit.  She states she began working for the “Rural Health Clinics” in Pioneer and Plymouth, California in May 1996.  She states that between starting employment in May 1996 and the end of 1996, she enrolled for the first time in Medicare as a nurse practitioner effective May 1996.  She attests that records of her enrollment in May 1996 are not available through her former employer or the contractor that processed her enrollment.  P. Ex. 7.4

Although CMS did not object to the admission of the affidavit and declarations5 as evidence, CMS argues they should be given no weight as they are uncorroborated and self-serving.  CMS does not articulate what self-interest of either Ms. Platt or Dr. Ross is served by their affidavits.  The self-interest of Petitioner is evident, but that does not mean her affidavit is entitled to no weight, only that weight must be determined considering all the evidence.  CMS also asserts without citation to any authority that affidavits, i.e., a testimony substitute like written direct examination, alone are insufficient to prove a fact.  CMS Br. at 7-8; CMS Reply at 4.  An affected party such as

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Petitioner may waive an oral hearing and there is no need to convene an oral hearing, unless I determine hearing the witnesses is necessary to clarify facts in issue or CMS shows good cause for requiring live testimony.  42 C.F.R. § 498.66(a)-(b).  CMS did not object to the waiver of oral hearing by Petitioner or attempt to show cause why it was necessary to examine and cross-examine Petitioner and her witnesses in an oral hearing.  Had CMS cited the need for cross-examination as good cause for convening an oral hearing, I would have been inclined to accept the CMS position and require that the witnesses be present for live testimony.  The CMS assertion that the affidavit and declarations are unsupported or uncorroborated by other evidence is also inaccurate.

Contrary to the CMS assertion, there is evidence to corroborate the declarations and affidavit.  The declarations and affidavit are consistent with and support each other.  Further, P. Exs. 4 and 5 show that Petitioner was originally licensed as a registered nurse July 23, 1996 (CMS Ex. 4) and a nurse practitioner July 29, 1996 (CMS Ex. 5).  This evidence is consistent with and supportive of other evidence offered by Petitioner showing she was practicing as a nurse practitioner well before January 1, 2001.  The fact that Petitioner was licensed and certified as a nurse practitioner in 1996 is some evidence that she would more likely than not have applied for and been enrolled in Medicare in order to obtain and maintain her employment as a nurse practitioner before December 31, 2000.

There is also other corroborating evidence.  On August 10, 2016, and again on September 28, 2016, before the December 14, 2016 notice of reconsidered determination, Petitioner sent the MAC a copy of a letter dated September 10, 2004, from a Medicare Part B Carrier to Symed Cal. Inc. advising that Petitioner’s application to enroll in Medicare was approved effective July 1, 2004.  CMS Ex. 5 at 6.  The fact that this document showing Petitioner was enrolled in Medicare effective July 1, 2004, was available to the MAC on reconsideration is reflected in the reconsidered determination.  CMS Ex. 7 at 1.  However, the reconsidered determination does not show that Petitioner’s prior enrollment was considered as evidence that she was previously determined to meet enrollment requirements or why the evidence was rejected.  The reconsidered determination also does not reflect that Medicare records were reviewed to confirm Petitioner’s enrollment in March 2014, July 2004, or before January 1, 2001, i.e., by December 31, 2000.  The regulation in effect at the time of Petitioner’s enrollment in 2004, provided:

(b) Qualifications.  For Medicare Part B coverage of his or her services, a nurse practitioner must—

(1)(i) Be a registered professional nurse who is authorized by the State in which the services are furnished to practice as a nurse practitioner in accordance with State law; and

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(ii) Be certified as a nurse practitioner by a recognized national certifying body that has established standards for nurse practitioners; or

(2) Be a registered professional nurse who is authorized by the State in which the services are furnished to practice as a nurse practitioner in accordance with State law and have been granted a Medicare billing number as a nurse practitioner by December 31, 2000; or

(3) Be a nurse practitioner who on or after January 1, 2001, applies for a Medicare billing number for the first time and meets the standards for nurse practitioners in paragraphs (b)(1)(i) and (b)(1)(ii) of this section; or

(4) Be a nurse practitioner who on or after January 1, 2003, applies for a Medicare billing number for the first time and possesses a master’s degree in nursing and meets the standards for nurse practitioners in paragraphs (b)(1)(i) and (b)(1)(ii) of this section.

42 C.F.R. § 410.75(b) (2003) (emphasis added).  The evidence that Petitioner was enrolled effective July 1, 2004, does not prove, standing alone, that Petitioner was first admitted to Medicare as a nurse practitioner by December 31, 2000.  However, given that there is no evidence that Petitioner had a master’s degree in nursing in 2004, pursuant to the regulation in effect at the time of Petitioner’s enrollment in 2004, if she was not enrolled in Medicare by December 31, 2000, she could only be enrolled if, in addition to being licensed by the state, she was also certified as a nurse practitioner by a national certifying body, and there is no evidence that she was so certified in 2004.6  Therefore, either CMS violated 42 C.F.R. § 410.75(b) (2003) by enrolling Petitioner in Medicare in 2004, or CMS determined that Petitioner was first enrolled in Medicare by December 31, 2000.  Similarly, when CMS enrolled Petitioner in Medicare in about March 2014, either CMS violated 42 C.F.R. § 410.75(b) (2013), or CMS determined that Petitioner was first enrolled in Medicare before January 1, 2001 (42 C.F.R. § 410.75(b)(3) (2013)).  I make no finding that CMS twice violated its regulations by its prior enrollments of Petitioner in

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Medicare, and I certainly do not consider CMS estopped by those prior actions.7  However, the evidence of two prior enrollments of Petitioner in 2004 and 2014 is considered as some evidence consistent with and corroborating the affidavit and declarations that Petitioner submitted as evidence.

I find that the declarations and affidavit are consistent with the evidence of record and corroborated.  I find based on all the evidence of record that it is more likely true than not that Petitioner was first enrolled in Medicare prior to 2001.

b.  Analysis

Pursuant to 42 C.F.R. § 410.75(b) (2015), Petitioner was eligible to continue her enrollment in Medicare if she was licensed as a registered nurse by the state in which she furnished nurse practitioner services and she was authorized by the state to furnish such services and she obtained Medicare billing privileges as a nurse practitioner for the first time before January 1, 2001.

There is no dispute and the evidence shows that Petitioner was licensed and certified as a nurse practitioner in the State of California at all relevant times.

The MAC revoked Petitioner’s Medicare enrollment and billing privileges and upheld the revocation on reconsideration because Petitioner did not produce evidence that she had a master’s or doctoral degree in nursing.  CMS Exs. 4, 6, 7.  Petitioner has never disputed that she has no master’s degree in nursing and cannot qualify to maintain her enrollment under 42 C.F.R. § 410.75(b)(1).  Petitioner has been consistent in her arguments that she believed she qualified under 42 C.F.R. § 410.75(b)(3) because she was first enrolled prior to January 1, 2001, and that is what she told the MAC while her case was pending reconsideration.

Petitioner has shown by a preponderance of the evidence, i.e., it is more likely than not, that she was first enrolled in Medicare prior to January 1, 2001.

Accordingly, I conclude that Petitioner met the requirements to continue her enrollment in Medicare and billing privileges under 42 C.F.R. § 410.75(b).  I further conclude that

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the MAC and CMS had no basis to either revoke or “retroactively deny” Petitioner’s Medicare enrollment and billing privileges.

III.  Conclusion

For the foregoing reason, Petitioner meets the qualifications in 42 C.F.R. § 410.75(b) for continuing enrollment and billing privileges as a nurse practitioner in Medicare.

• 1. Citations are to the 2015 revision of the Code of Federal Regulations (C.F.R.) which was in effect at the time of the initial determination, unless otherwise indicated. An appellate panel of the Departmental Appeals Board (Board) concluded in Mark Kabat, D.O., DAB No. 2875 at 9-11 (2018) that the applicable regulations are those in effect at the time of the initial determination. However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination. Neb Group of Arizona LLC, DAB No. 2573 at 9 (2014). In this case, the regulations did not change between the issuance of the initial and reconsidered determinations. Citations to earlier revisions of the regulations in this decision do not affect my conclusions of law in this case but are used to show the legal standard in effect at pertinent times.
• 2. A “supplier” furnishes services under Medicare and includes physicians and other non physician 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)).
• 3. The MAC cites no legal authority for imposing a “retroactive denial” of enrollment other than 42 C.F.R. § 424.530(a)(1). CMS argues that the Board accepted “retroactive denial” in US Ultrasound, DAB No. 2302 (2010). CMS Br. at 3. I note that in US Ultrasound the Board quoted an earlier version of 42 C.F.R. § 424.530(a)(1) which included language that denial of enrollment could occur “at any time” it is found that a supplier is not in compliance with enrollment requirements. DAB No. 2302 at 6. The revision of 42 C.F.R. § 424.530(a)(1) in effect at the time of the initial determination in this case did not include the “at any time” language the Board relied upon in US Ultrasound. Based on my decision on the merits, I need not decide the legal issue of whether there is authority for a “retroactive denial” or whether the initial and reconsidered determinations in this case were really revocation of an existing enrollment. The practical impact seems to be little different, particularly since the parties agree that the effective date of the denial or revocation is roughly 30 days after the date of the notice of the initial determination. But based on the facts, MAC determinations in this case appear to be more akin to a revocation of an existing enrollment and billing privileges under 42 C.F.R. § 424.535(a)(1) than a denial of enrollment under 42 C.F.R. § 424.530(a)(1).
• 4. CMS did not object to my consideration of the declarations or affidavit on grounds that they were offered for the first time before me. Pursuant to 42 C.F.R. § 498.56(e), in a provider or supplier enrollment appeal, I am required to examine any new documentary evidence submitted for the first time before me. If I find good cause, I must admit and may consider the evidence. If I do not find good cause exists, I must exclude and may not consider the evidence. 42 C.F.R. § 498.56(e)(2). I find good cause exists in this case. Petitioner has a right to an oral hearing on the record. If an oral hearing had been convened, Petitioner and her two witnesses could have testified. However, in this case, Petitioner waived an oral hearing; CMS did not object to not convening an oral hearing; and there is good cause to admit and consider the affidavit and declarations as testimony substitutes that were created after the time of the reconsidered determination.
• 5. An affidavit is a voluntary declaration sworn to before one authorized to administer oaths, such as a notary. Black’s Law Dictionary at 62 (8th ed. 2004). Pursuant to 28 U.S.C. § 1746, unsworn declarations executed under penalty of perjury are admissible to the same extent as an affidavit in proceedings of the federal government.
• 6. There is evidence that in 2005 Petitioner was certified as a physician assistant by the National Commission on Certification of Physician Assistants. CMS Ex. 5 at 10. However, that is not the certification required for a nurse practitioner.
• 7. Estoppel will generally not lie against the government. Estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud. See, e.g., Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990), Pacific Islander Council of Leaders, DAB No. 2091 at 12 (2007). There is no evidence suggesting fraud on the part of the MAC or a staff member or that there was any intent to mislead Petitioner.