Eva Orticio Villamor-Goubeaux, DAB CR5181 (2018)

DECISION

The Medicare enrollment and billing privileges of Petitioner, Eva Orticio Villamor‑Goubeaux, are revoked pursuant to 42 C.F.R. § 424.535(a)(3) and (9).1  The effective date of Petitioner’s revocation is November 24, 2015.  Petitioner is barred from re-enrollment in Medicare for three years beginning June 23, 2017.

I.  Background and Procedural History

On May 24, 2017, CGS Administrators, LLC, a Medicare Administrative Contractor (MAC), notified Petitioner that her Medicare enrollment and billing privileges were revoked effective November 24, 2015, pursuant to 42 C.F.R. § 424.535(a)(3) and (9).  The MAC also notified Petitioner that she was subject to a three-year bar to re-enrollment pursuant to 42 C.F.R. § 424.535(c), effective 30 days from the notice of revocation, that is June 23, 2017.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 8‑9.

By letter dated June 21, 2017, counsel for Petitioner requested reconsideration of the initial determination to revoke Petitioner’s Medicare enrollment and billing privileges.

Page 2

CMS Ex. 1 at 10‑13.  On September 27, 2017, a CMS hearing officer issued a reconsidered determination upholding revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) and (9).  CMS Ex. 1 at 1‑7.

On November 28, 2017, Petitioner requested a hearing before an administrative law judge (ALJ).  On December 4, 2017, the case was assigned to me for hearing and decision, and an Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction.

On January 3, 2018, CMS filed a prehearing brief and motion for summary judgment (CMS Br.) with CMS Exs. 1 through 3.  On February 2, 2018, Petitioner filed a response in opposition to the CMS motion for summary judgment (P. Br.) and Petitioner’s Exhibit (P. Ex.) 1.  On February 20, 2018, CMS filed a reply brief.  Neither party has objected to my consideration of the proposed exhibits.  CMS Exs. 1 through 3 are admitted as evidence.  The Ohio Board of Nursing executed P. Ex. 1 on July 27, 2017, after Petitioner filed for reconsideration.  P. Ex. 1 is relevant to Petitioner’s defense (P. Br. at 12-13).  CMS has not objected to the authenticity of P. Ex. 1.  I find good cause to admit P. Ex. 1 even though it is offered for the first time before me.  42 C.F.R. § 498.56(e).

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.  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)).  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).

Page 3

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 of certain enrollment determinations. 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 Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or its MAC 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.  The effective date of the revocation is controlled by 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 a minimum of one year, but no more than 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; the reasons for its determination; the conditions or requirements the supplier failed to meet; and 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 unless waived.  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 summary judgment is appropriate; and

Whether there is a basis for the 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 the undisputed findings of fact and analysis.

Page 4

1.  Summary judgment is appropriate.

A provider or supplier denied enrollment in Medicare or whose enrollment has been revoked has a right to a hearing and judicial review pursuant to section 1866(h)(1) and (j) of the Act and 42 C.F.R. §§ 498.3(b)(1), (5), (6), (8), (15), (17); 498.5.  A hearing on the record, also known as an oral hearing, is required under the Act.  Act §§ 205(b), 1866 (h)(1) and (j)(8); 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 the 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 at 42 C.F.R. pt. 498.  42 C.F.R. §§ 405.800, 405.803(a), 424.545(a), 498.3(b)(5), (6), (15), (17).  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 at 3 (1997).  The Board also has recognized that the Federal Rules of Civil Procedure (Fed. R. Civ. P.) do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 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.  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 Fed. R. Civ. P. 56 will be applied.  Prehearing Order ¶¶ II.D. and 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.  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.  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.  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

Page 5

Hosp. Reg’l Med. Ctr., DAB No. 2459 at 4 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 4 (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 differs from that used in resolving a case after a hearing or when there is a waiver of oral 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 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).

In this case, I conclude that there are no genuine disputes as to any material facts pertinent to revocation under 42 C.F.R. § 424.535(a)(3) and (9) that require a hearing in this case.  The issues in this case raised by Petitioner related to the basis for revocation of her Medicare enrollment and billing privileges must be resolved against her as a matter of law.  Petitioner argues that whether conviction of a particular felony offense is detrimental to Medicare and its beneficiaries is a fact issue and, therefore, summary judgment is not appropriate.  P. Br. at 5.  Petitioner’s argument overlooks that the facts related to her conviction are not disputed and no trial is necessary to determine those facts.  The issue of whether the undisputed facts constitute an offense detrimental to Medicare or its beneficiaries is a question of law.  The undisputed evidence shows that there was a basis for revocation of Petitioner’s Medicare enrollment and billing privileges under the regulations.  Accordingly, summary judgment is appropriate.

2.  Petitioner was convicted on November 24, 2015, of the felony offense of interference with custody in violation of Ohio Rev. Code § 2919.23(A)(1) in the Miami County Court of Common Pleas.

3.  The Secretary has determined and provided by regulation that felony crimes against persons, such as murder, rape, assault, and

Page 6

similar crimes, are detrimental to the Medicare program and its beneficiaries.  42 C.F.R. § 424.535(a)(3)(ii)(A).

4.  Petitioner’s conviction of interference with custody is a felony crime that CMS has determined is detrimental to the best interests of the Medicare program and its beneficiaries within the meaning of 42 C.F.R. § 424.535(a)(3).

5.  Petitioner’s conviction occurred within the ten years preceding the initial determination to revoke Petitioner’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(3)(i).

6.  There is a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3).

7.  Petitioner did not report her felony conviction, which was an adverse legal action, within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii).

8.  There is a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).

a.  Facts

The material facts are not disputed.

Petitioner is a nurse practitioner licensed by the State of Ohio.  She has been enrolled in Medicare since September 2015.  CMS Ex. 2 at 1‑2; P. Br. at 2.

Petitioner and her husband were involved in a divorce proceeding with a custody agreement related to their only child.  CMS Ex. 1 at 16; P. Br. at 2.  From about Thanksgiving 2013 to February 27, 2014, Petitioner and the child subject to the custody agreement resided out of Ohio in violation of the terms of the custody agreement.  CMS Ex. 1 at 10-11, 14-18, 30; P. Br. at 2; P. Ex. 1.

On November 24, 2015, Petitioner was convicted in the Court of Common Pleas, Miami County, Ohio, of a fifth degree felony offense of interference with custody in violation of Ohio Rev. Code § 2919.23(A)(1)3.  CMS Ex. 1 at 10-11, 14-18, 30; CMS Ex. 3 at 1; P. Br. at 2.  Ohio Rev. Code § 2919.23(A)(1) provides “[n]o person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep or

Page 7

harbor a person identified in division (A)(1) [a child under the age of eighteen] . . . from the parent, guardian, or custody of . . . [the child].”  Violation of Ohio Rev. Code § 2919.23(A)(1) is a fifth degree felony if the child involved is removed from Ohio.  Ohio Rev. Code § 2919.23(D)(2).  Petitioner appealed her conviction and the Court of Appeals of Ohio, Second Appellate District, Miami County, affirmed the trial court’s judgment on October 21, 2016.  CMS Ex. 1 at 15‑34; P. Br. at 2-3.

On May 24, 2017, the MAC notified Petitioner that her Medicare enrollment and billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(3) and (9) effective November 24, 2015.  The notice advised that the revocation was based on Petitioner’s November 24, 2015 felony conviction for interference with custody in violation of Ohio Rev. Code § 2919.23(A)(1).  The MAC imposed a three-year re-enrollment bar, beginning 30 days from the notice of revocation.  CMS Ex. 1 at 8-9.

Petitioner timely requested reconsideration.  On September 27, 2017, a CMS hearing officer issued a decision upholding the revocation.  With respect to revocation based on 42 C.F.R. § 424.535(a)(3), CMS made two separate determinations.  First, CMS found that Petitioner’s felony offense was per se detrimental to the Medicare program because it was akin to the enumerated crimes against persons listed in 42 C.F.R.  § 424.535(a)(3)(ii)(A) that are considered to be detrimental to the best interests of the Medicare program and its beneficiaries.  The hearing officer reasoned that interference with custody was a felony offense against a person.  Second, in the alternative, CMS made an individualized finding that Petitioner’s felony crime of interference with custody is detrimental to the best interests of the Medicare program and its beneficiaries.  The hearing officer explained:

Ms. Villamor‑Goubeaux’ felony conviction involved her violation of a government issued legal order.  Ms. Villamor‑Goubeaux violated her custody agreement with her ex‑husband by taking her daughter out of the state for more than 14 days without permission from her ex‑husband or the court.  Ms. Villamor‑Goubeaux claimed that she intended on filing a motion to modify the custody agreement before she moved to New Jersey with her daughter.  However, Ms. Villamor‑Goubeaux did not file the motion to modify the custody agreement before moving to New Jersey.  Ms. Villamor‑Goubeaux’ felony conviction calls into question her trustworthiness and veracity as it relates to her ability to abide by governmental rules.  Payment under the Medicare program is made for claims submitted in a manner that relies on the trustworthiness of our Medicare partners.  Given the facts underlying Ms. Ms. [sic] Villamor‑Goubeaux’ felony conviction, Trust Funds and Medicare beneficiaries may be at

Page 8

risk if she continues to participate in the program.  It necessarily follows that placing Trust Funds at risk is also a detriment to the beneficiaries.  Therefore, CMS finds that Ms. Villamor‑Goubeaux’ conviction is detrimental to the Medicare program and its beneficiaries.

CMS Ex. 1 at 4‑5.

CMS further determined that Petitioner’s felony conviction is a “final adverse action” under 42 C.F.R. § 424.516(d)(1)(ii).  CMS Ex. 1 at 5.  Reporting of final adverse actions is required by 42 C.F.R. § 424.535(a)(9).  There is no dispute that Petitioner never reported any final adverse legal actions to the MAC.

b.  Analysis

(i.)  There is a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3).

Congress granted the Secretary authority to revoke the enrollment of a provider or supplier convicted under federal or state law of a felony offense that the Secretary determines is detrimental to the program or its beneficiaries.  Act § 1866(b)(2)(D).  The Secretary delegated to CMS the authority to revoke a supplier’s billing privileges if CMS determines that the supplier was, “within the preceding 10 years, convicted (as that term is defined in 42 C.F.R. § 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.535(a)(3).  The Secretary has specified those crimes that are presumptively detrimental to the best interests of the program and its beneficiaries in 42 C.F.R. § 424.535(a)(3)(ii).  The listing of presumptively detrimental felonies in 42 C.F.R. § 424.535(a)(3)(ii) is not exhaustive but specifically permits revocation for detrimental felonies similar to the crimes listed.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 10 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).

The elements necessary for revocation pursuant to 42 C.F.R. § 424.535(a)(3) are clear.  CMS may revoke a supplier’s Medicare billing privileges if the following conditions are met:  (1) the supplier was convicted of a federal or state felony offense; (2) the conviction occurred within the 10 years preceding the revocation action; and (3) CMS has determined that the supplier’s felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  42 C.F.R. § 424.535(a)(3); See Fady Fayad, M.D., DAB No. 2266 at 7 (2009) (describes elements under prior revision of the regulation), aff’d, Fady Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011).

Page 9

Petitioner does not dispute that she was convicted of the felony offense in 2015 or that the felony conviction occurred within the ten years preceding the initial determination to revoke on May 24, 2017.

The issue to be resolved is whether or not the offense of which Petitioner was convicted falls within any of the types of presumptively detrimental offenses listed in 42 C.F.R. § 424.535(a)(3)(ii):

(ii) Offenses include, but are not limited in scope or severity to—

(A) Felony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.

(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.

(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that results in a conviction of criminal neglect or misconduct.

(D) Any felonies that would result in mandatory exclusion under section 1128(a) of the Act.

Petitioner’s crime was neither a financial crime nor a crime that placed Medicare or a beneficiary at immediate risk and I conclude that 42 C.F.R. § 424.535(a)(3)(ii)(B) and (C) have no application in this case.  Section 1128(a) of the Act, which is referred to in 42 C.F.R. § 424.535(a)(3)(ii)(D), requires that the Secretary exclude from participation in Medicare any individual convicted of a program-related crime, patient abuse, felony health care fraud, or a felony related to controlled substances.  Petitioner’s conviction does not fall within the various crimes enumerated in section 1128(a) of the Act.

Therefore, only 42 C.F.R. § 424.535(a)(3)(ii)(A) is potentially applicable and that subsection permits revocation of enrollment based on a felony crime against a person.  Petitioner was convicted of a violation of Ohio Rev. Code § 2919.23(A)(1), a fifth-degree felony.  The Ohio statute provides that “[n]o person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep or harbor a person identified in division (A)(1) [a child under the age of eighteen] . . . from the

Page 10

parent, guardian, or custody of . . . [the child].”  There is no question that interference with custody is not specifically listed among the crimes against a person in 42 C.F.R. §  424.535(a)(3)(ii)(A).  CMS argues at length that the felony crime of interference with custody is akin to one of the crimes against a person listed in 42 C.F.R. § 424.535(a)(3)(ii)(A).  CMS Br. at 9-12; CMS Reply at 2-6.

I conclude that interference with custody under the Ohio statute is very similar to kidnapping as described in the Ohio statutes.  Kidnapping is not specifically listed in 42 C.F.R. § 424.535(a)(3)(ii)(A), but kidnapping was discussed by the drafters of the regulation as a crime against a person.  71 Fed. Reg. 20,754, 20,760 (Apr. 21, 2006).  Petitioner argues that under Ohio law interference with custody is considered to be a crime against the family rather than a crime against a person.  P. Br. at 5-6.  Because families are generally composed of persons, I am not persuaded by Petitioner’s analysis.  I am also not persuaded by the organization and subdivision titles of the Ohio statutes.  Interference with custody obviously involves the person in custody and the person or persons whose right to custody is violated.  Therefore, I am satisfied that, at the very least, interference with custody is very much akin to a crime against a person even though it is characterized under Ohio law as a crime against the family.  Petitioner quotes the Ohio kidnap statute, Ohio Rev. Code § 2905.01(A), which prohibits removing another person from the place where that person is found.  Petitioner quotes the Ohio abduction statute, Ohio Rev. Code § 2905.02, which also prohibits removing a person from where that person is found.  Petitioner also quotes the Ohio interference with custody statute, Ohio Rev. Code § 2929.23, which prohibits taking certain persons from the parent, guardian, or custodian of the person.  P. Br. at 8-9.  Petitioner is correct that the mens rea may be different for each of the three aforementioned offenses.  P. Br. at 8.  However, Petitioner fails to recognize that one who takes a child under age 18 from the place where he or she is found and thereby takes the child from a parent, guardian, or custodian, could arguably be charged with violations of all three Ohio criminal statutes.  Under the statutes quoted by Petitioner, the only mens rea required for abduction and interference with custody is that the person knowingly engage in the act without authority to do so.  Under the kidnap statute quoted, the person must knowingly commit the act and with the specific intent to accomplish one of the purposes listed in the statute.  Accordingly, I conclude that interference with custody is very much akin to kidnapping or abduction under Ohio law.  Petitioner expresses concern in briefing that interference with custody is treated as a crime against a person in some states but not all and could lead to inconsistent results.  P. Br. at 6.  Petitioner’s concern clearly illuminates why it is the CMS characterization of a crime and not that of the state that must control in this federal program.

CMS also made an individualized determination that Petitioner’s felony conviction was detrimental to the best interests of the Medicare program and its beneficiaries.  The Secretary has delegated virtually unfettered discretion to CMS to decide what constitutes a felony offense detrimental to the best interests of the Medicare program and its

Page 11

beneficiaries under 42 C.F.R. § 424.535(a)(3).  79 Fed. Reg. 72,500, 72,531-2 (Dec. 5, 2014).  Effective February 3, 2015, 42 C.F.R. § 424.535(a)(3) was amended to permit CMS to determine that a felony is detrimental to Medicare or its beneficiaries even if it is not one described in 42 C.F.R. § 424.535(a)(3)(i).  The preamble4 to the revised regulation states:

First, we proposed to modify the list of felonies in each section such that any felony conviction that we determine to be detrimental to the best interests of the Medicare program and its beneficiaries would constitute a basis for denial or revocation.  We stated that considering the very serious nature of any felony conviction, our authority in §§ 424.530(a)(3)(i) and 424.535(a)(3)(i) should not be restricted to the categories of felonies identified in (a)(3)(i); this was especially true considering that the types of felony offenses often vary from state to state.

79 Fed. Reg. 72,500, 72,509-10 (emphasis added).  In this case, the hearing officer concluded that the facts underlying Petitioner’s felony called into question her trustworthiness and veracity as it relates to her ability to abide by governmental rules.  The undisputed evidence shows that CMS made the individualized determination that Petitioner’s felony offense was detrimental even though it is not specifically listed in 42 C.F.R. § 424.535(a)(3)(ii)(A).

Petitioner argues that Petitioner’s crime is not detrimental to Medicare or its beneficiaries.  Petitioner urges me to consider that the Ohio Board of Nursing (P. Ex. 1) did not limit Petitioner’s license to practice.  Petitioner urges me to draw the inference, based at least in part on the Ohio Board of Nursing action, that Petitioner’s conviction was not detrimental to health care programs, as Petitioner’s conduct presented no threat to the safety and health of the public.  P. Br. at 11-13.  The regulation, 42 C.F.R. § 424.535(a), specifies the reasons for which CMS may legally revoke a provider or supplier’s billing privileges.  So long as an ALJ finds that CMS had a regulatory basis for revocation, the ALJ (and the Board on appeal) may not refuse to apply the regulation and must sustain the revocation.  See, e.g., Stanley Beekman, D.P.M., DAB No. 2650 at 10 (2015) (an ALJ and the Board must sustain a revocation “[i]f the record establishes that

Page 12

the regulatory elements are satisfied”); Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (the only issue before an ALJ and the Board in enrollment cases is whether CMS has established a “legal basis for its actions”).  It is not my prerogative to review the CMS exercise of discretion to revoke once I have concluded that there is a basis for revocation.

Accordingly, I conclude that:

• Petitioner was convicted within the ten years preceding the revocation of her Medicare enrollment and billing privileges;
• Petitioner was convicted of a felony offense against a person that is akin to kidnapping and the offenses listed in 42 C.F.R. § 424.535(a)(3)(ii)(A);
• CMS also made the individualized determination that Petitioner’s felony offense was detrimental to the Medicare program and its beneficiaries;
• The elements for revocation under 42 C.F.R. § 424.535(a)(3) are satisfied; and
• There is a basis for revocation of Petitioner’s enrollment pursuant to 42 C.F.R. § 424.535(a)(3).

(ii.)  There is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).

Petitioner concedes that she did not report her felony conviction to CMS.  P. Br. at 14.  Pursuant to 42 C.F.R. § 424.535(a)(9), CMS may revoke a supplier’s Medicare billing privileges if the supplier fails to comply with the reporting requirements of 42 C.F.R. § 424.516(d)(1)(ii) and (iii).  Physicians and nonphysician practitioners are required to report to their Medicare contractors “[a]ny adverse legal action” within 30 days of the action.  42 C.F.R. § 424.516(d)(1)(ii).  “Final adverse action” includes, among other things, a “conviction of a Federal or State felony offense (as defined in § 424.535(a)(3)(i)) within the last 10 years preceding enrollment, revalidation, or re‑enrollment . . . .”  42 C.F.R. § 424.502.

Petitioner argues that her failure to report “depends on whether CMS or petitioner prevails in the underlying arguments concerning whether interference with custody is a qualifying felony offense.”  P. Br. at 14.  Petitioner contends that if her felony conviction is not found to be detrimental to the best interests of the Medicare program and its beneficiaries, she would have no duty to report the felony.  The Board has previously determined that the phrase “any adverse legal action” used in the provider/supplier enrollment regulations is broader than “final adverse action” and includes legal action

Page 13

adverse to the provider or supplier’s interest.  Akram A. Ismail, M.D., DAB No. 2429 at 11 (2011).  Moreover, the goal of this section is "to provide CMS with information about adverse legal actions that CMS had determined are relevant to evaluating whether a supplier should continue to participate in Medicare."  Gulf South Med. & Surgical Inst., DAB No. 2400 at 8 (2011).  Petitioner’s felony conviction qualifies as an adverse legal action as well as a final adverse action.  I conclude that Petitioner did not comply with the reporting requirements of 42 C.F.R. § 424.516(d)(1) and there is a basis for revocation of her billing privileges under 42 C.F.R. § 424.535(a)(9).

I am not bound by the prior determinations of CMS and the MAC as to the existence of a basis for revocation.  However, if I conclude, as I have here, that there is a basis for revocation, I do not review the exercise of discretion by CMS or the MAC to revoke.  Douglas Bradley, M.D., DAB No. 2663 at 13 n.13 (2015).  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.  Dinesh Patel, M.D., DAB No. 2551 at 10 (2013); Fayad, DAB No. 2266 at 16; Ahmed, DAB No. 2261 at 16‑17, 19.

Some of Petitioner’s arguments, such as those relating to the Ohio Board of Nursing and its decision not to limit Petitioner’s license to practice, may be construed to request equitable relief.  P. Br. at 12.  However, I have no authority to grant Petitioner equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  Furthermore, I am bound to follow the Act and regulations and have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

9.  The effective date of revocation of Petitioner’s Medicare enrollment and billing privileges is the date of Petitioner’s conviction, November 24, 2015.  42 C.F.R. § 424.535(g).

10.  I have no authority to review CMS’s determination to impose a three-year bar to Petitioner’s re-enrollment in Medicare.

11.  The three-year bar to re-enrollment began 30 days after the date on which the MAC mailed the notice of revocation, in this case June 23, 2017.  42 C.F.R. § 424.535(c).

There is no dispute that Petitioner was convicted of a felony on November 24, 2015.  The effective date of the revocation is controlled by 42 C.F.R. § 424.535(g).  The regulation provides that when revocation is based on a felony conviction, the effective date of revocation is the date of the conviction.  42 C.F.R. § 424.535(g).

(g) Effective date of revocation. Revocation becomes effective 30 days after CMS or the CMS contractor mails

Page 14

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 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).  This regulation grants CMS and its contractor no discretion to choose an effective date of revocation other than the date of the conviction.  Accordingly, the effective date of Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(3) was November 24, 2015.  Although failure to report the conviction is an independent basis for revocation under 42 C.F.R. § 424.535(a)(9) that would normally be effective 30 days after notice of the initial determination, the regulation does not grant CMS or its contractor discretion to choose the later effective date.

When 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).  In this case, CMS determined that a three-year bar was appropriate.  There is no statutory or regulatory language establishing a right to review of the duration of the re-enrollment bar CMS imposes.  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.535(c); 424.545; 498.3(b); and 498.5.  The Board has held that the duration of a revoked supplier’s re-enrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and, thus, is not subject to ALJ review.  Vijendra Dave, M.D., DAB No. 2672 at 11 (2016).

III.  Conclusion

For the foregoing reasons, I conclude that there was a basis to revoke Petitioner’s Medicare enrollment and billing privileges effective November 24, 2015.

• 1. Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.
• 2. Petitioner is a “supplier” under the Act and the regulations. A “supplier” furnishes services under Medicare and the term supplier applies to 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) and 1835(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. Available at http://codes.ohio.gov/orc/ (last visited Aug. 20, 2018).
• 4. Each agency submitting a proposed or final rule for publication in the Federal Register must provide a preamble to inform the reader of the basis and purpose of the regulation or proposal. 1 C.F.R. § 18.12. In promulgating regulations, the Secretary must publish the proposed regulation in the Federal Register and allow no fewer than 60 days for public comment. Act § 1871.