Susan Kuhns, DAB CR5191 (2018)

DECISION

The Medicare enrollment application of Petitioner, Susan Kuhns, is denied pursuant to 42 C.F.R. § 424.530(a)(1).1

I. Background

On March 1, 2014, Novitas Solutions (Novitas), a Medicare administrative contractor (MAC) for the Centers for Medicare & Medicaid Services (CMS), notified Petitioner that her application to revalidate her enrollment in Medicare was approved. The CMS notice indicates Petitioner was enrolled effective January 1, 2005. CMS Exhibit (Ex.) 1 at 13‑15. On September 15, 2015, the MAC approved Petitioner's request to opt out of Medicare effective October 1, 2015, for two years. CMS Ex. 4 at 1. Subsequently, Petitioner submitted a CMS 855I application to reactivate her Medicare enrollment that she signed on August 8, 2017. CMS Ex. 1 at 29-108. The MAC notified Petitioner by letter dated October 23, 2017, that her application to enroll in Medicare as a nurse

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practitioner was denied pursuant to 42 C.F.R. § 424.530(a)(1)2, because Petitioner did not have a master's degree in nursing or a doctor of nursing practice (DNP) degree. CMS Ex. 1 at 7-8.

Petitioner requested reconsideration on November 7, 2017. CMS Ex. 1 at 9-12. On January 31, 2018, the MAC issued a reconsidered determination upholding the denial of Petitioner's enrollment pursuant to 42 C.F.R. § 424.530(a)(1), on grounds that she did not meet the requirements of 42 C.F.R. § 410.75(b) because she did not have a master's degree in nursing or a DNP degree. CMS Ex. 1 at 1-5.

On March 28, 2018, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ). Petitioner filed supporting documents with her request for hearing (Departmental Appeals Board Electronic Filing System #1b) that I treat as if marked Petitioner's Exhibit (P. Ex.) 1. On April 5, 2018, the case was assigned to me for hearing and decision and I issued an Acknowledgment and Prehearing Order (Prehearing Order).

On May 7, 2018, CMS filed a motion for summary judgment and prehearing brief(CMS Br.) and CMS Exs. 1 through 4. Petitioner filed a response to the CMS motion on June 14, 2018 (P. Br.). Petitioner did not object to my consideration of CMS Exs. 1 through 4 and they are admitted as evidence. CMS did not object to my consideration of the documents Petitioner filed with her request for hearing, which I admit as P. Ex. 1. CMS waived filing a reply brief.

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. 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

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suppliers.3 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 (Secretary) to issue regulations that establish a process for the enrollment in Medicare of suppliers, including the right to a hearing and judicial review of certain enrollment determinations, such as denial of enrollment and revocation of enrollment and billing privileges. Act § 1866(j) (42 U.S.C. § 1395cc(j)).

The Secretary has issued regulations establishing enrollment procedures and requirements. Pursuant to 42 C.F.R. § 424.505, a supplier such as Petitioner 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 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.

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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).

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).

The Secretary has issued 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.

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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 with documents and records. 42 C.F.R. § 424.545(c).

B. Issues

Whether summary judgment is appropriate; and

Whether there was a basis for the denial of Petitioner's application to enroll in the Medicare program.

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

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

1. Summary judgment is appropriate.

A supplier, such as Petitioner, denied Medicare enrollment and billing privileges, has a right to a hearing and judicial review. A hearing on the record before an ALJ is required under the Act. Act §§ 205(b), 1866(h)(1), (j); 42 C.F.R. §§ 498.3(b)(17), 498.5(l); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004). A party may waive appearance at an oral hearing but must do so affirmatively in writing. 42 C.F.R. § 498.66. Petitioner has not waived oral hearing.

CMS has filed a motion for summary judgment. 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. § 424.545(a)(1). 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.

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Ctr., DAB No. 1628 at 3 (1997). The Board recognizes that the Federal Rules of Civil Procedure (Fed. R. Civ. Pro.) do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. Pro. 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 the proceedings and made available to the parties in the litigation of this case by my Prehearing Order dated April 5, 2018. 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. Pro. 56 will be applied. Prehearing Order ¶¶ II.D. & 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 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 Hospital Reg'l Med. Ctr., DAB No. 2459 at 4 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 4-6 (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 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 parties' evidence would be sufficient to meet that party's evidentiary burden. Dumas Nursing and Rehab., L.P., DAB No. 2347 at 5 (2010).

The material facts in this case are not disputed, and there is no genuine dispute as to any material fact that requires a trial. Accordingly, summary judgment is appropriate.

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2. There is no dispute that Petitioner does not have either a master's degree in nursing or a DNP degree as required to enroll in Medicare for the first time after January 1, 2003. 42 C.F.R. § 410.75(b)(1).

3. Petitioner has not presented evidence from which I can draw a favorable inference that she obtained Medicare billing privileges as a nurse practitioner prior to either January 1, 2001 or January 1, 2003. 42 C.F.R. § 410.75(b)(2) and (3).

4. Petitioner does not meet the requirements for enrollment in Medicare as a nurse practitioner under 42 C.F.R. § 410.75(b).

5. There is a basis for denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(1).4

6. The issue for hearing and decision is whether there is a basis for denial of Petitioner's Medicare enrollment and, if there is a basis for denial of enrollment, my jurisdiction does not extend to reviewing whether CMS properly exercised its discretion to deny Petitioner's Medicare enrollment application.

a. Facts

I accept as true for purpose of summary judgment the facts asserted by Petitioner including the following:

Petitioner graduated with a bachelor of science in nursing as a nurse practitioner with a geriatric specialty in about 1986.

When she began practicing, Petitioner could not bill Medicare directly but she worked under supervision of a physician who billed Medicare for Petitioner's services.

Petitioner provided services to Medicare-eligible beneficiaries during the period 1994 through 2003, but her services were billed to Medicare by the physician and not under a Medicare billing number issued to Petitioner.

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Petitioner established her own clinic in 2003 and she was able to start billing Medicare directly in 2005.

Petitioner believed that she was not required to go back to school to obtain a masters or doctoral degree when she was granted billing privileges in 2005, and Petitioner believed that was because she had been with Medicare since before 2001.

Petitioner's application to Medicare to revalidate her Medicare enrollment and billing privileges was approved on or about March 1, 2014, effective January 1, 2005.

Petitioner was licensed as a nurse practitioner by the state of Colorado.

Petitioner is certified as an Adult Nurse Practitioner for the period February 1, 1994 through January 31, 2019 by the American Academy of Nurse Practitioners.

Petitioner does not have a master's degree or a DNP.

RFH; P. Response; P. Ex. 1 at 1-2, 3, 8; CMS Ex. 1 at 9, 11, 13, 17, 21, 41, 83, 85.

b. Analysis

In order to enroll in Medicare and receive billing privileges, Petitioner must meet the requirements of 42 C.F.R. § 410.75(b). There is no dispute that Petitioner meets the requirement to be a registered professional nurse authorized by the State of Colorado to furnish nurse practitioner services. The problem for Petitioner is that the undisputed evidence does not permit me to find that she meets the alternative bases for eligibility to enroll in Medicare and obtain billing privileges.

Pursuant to 42 C.F.R. § 410.75(b)(1), Petitioner is eligible to enroll in Medicare and obtain billing privileges as a nurse practitioner if she:

1) first obtained Medicare billing privileges on or after January 1, 2003;

2) was certified as a nurse practitioner by a recognized national certifying body with established standards for nurse practitioners; and

3) possessed a master's degree or doctoral degree in nursing.

There is no dispute that Petitioner had the required certification by the American Academy of Nurse Practitioners. I accept for purposes of summary judgment Petitioner's representation that Petitioner was delivering services to Medicare-eligible beneficiaries

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prior to January 1, 2003. However, Petitioner admits that prior to January 1, 2003, her services to Medicare-eligible beneficiaries were billed to Medicare by her supervising physician under his billing number and not under Petitioner's own billing number. Petitioner does not allege that she had her own Medicare billing number or billing privileges prior to January 1, 2003. Even though the evidence shows that a MAC approved Petitioner's revalidation of her Medicare enrollment in March 2014, that fact does not permit an inference that Petitioner had Medicare billing privileges prior to January 1, 2003, in the face of her admission that she did not have billing privileges prior to that date. There is no dispute that Petitioner does not have a master's or doctoral degree in nursing. Accordingly, I conclude that Petitioner cannot meet the requirements of 42 C.F.R. § 410.75(b)(1) to enroll in Medicare.

Pursuant to 42 C.F.R. § 410.75(b)(2), Petitioner is eligible to enroll in Medicare and obtain billing privileges if she obtained Medicare billing privileges prior to January 1, 2003, and she was certified as a nurse practitioner by a recognized national certifying body with established standards for nurse practitioners. Petitioner had the required certification. However, Petitioner does not allege that she obtained Medicare billing privileges prior to January 1, 2003. Accordingly, Petitioner does not meet the requirements of 42 C.F.R. § 410.75(b)(2) to enroll in Medicare.

Pursuant to 42 C.F.R. § 410.75(b)(3), Petitioner is eligible to enroll in Medicare if she obtained Medicare billing privileges as a nurse practitioner for the first time before January 1, 2001. Petitioner does not allege that she obtained billing privileges prior to January 1, 2001. Accordingly, I must conclude that Petitioner does not meet the requirements of 42 C.F.R. § 410.75(b)(3) to enroll in Medicare.

I have concluded that Petitioner does not meet the requirements of 42 C.F.R. § 410.75(b)(1) through (3) to enroll in Medicare as a nurse practitioner. Accordingly, I conclude that the MAC had a basis to deny Petitioner's application to enroll in Medicare as a nurse practitioner. If I conclude that the MAC or CMS has a basis to deny enrollment, I have no authority to review the exercise of discretion by CMS or its contractor to deny enrollment in Medicare. See Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff'd, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).

Petitioner argues that she believed that she was entitled to enroll in Medicare because she enrolled and was able to start billing Medicare in 2005. RFH at 1; CMS Ex. 1 at 9. I accept as true for summary judgment the assertions that Petitioner started delivering services to Medicare-eligible beneficiaries in 2001 and that she began billing Medicare directly under her own billing number in 2005. However, the regulation is clear that it was necessary for Petitioner to obtain her own Medicare billing privileges before January 1, 2003, in order to avoid the regulatory requirement for a master's or doctoral nursing degree. Petitioner does not allege that she obtained her own billing privileges prior to January 1, 2003, and there is no evidence from which I can draw an inference in

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Petitioner's favor in that regard. Accordingly, I cannot conclude, as a matter of law, that Petitioner met the exceptions for the requirement to have a master's or doctoral degree in order to enroll as a nurse practitioner. Furthermore, there is no material dispute of fact regarding when Petitioner first received Medicare billing privileges that requires that I conduct a hearing to receive evidence on that fact issue.

The two letters submitted by Petitioner also do not trigger a favorable inference that Petitioner was actually enrolled in Medicare with billing privileges prior to January 1, 2003, even though I accept as true the statements in both letters. P. Ex. 1 at 1‑2. The letters, one from Petitioner's colleague and one from a physician Petitioner worked with, do not allege or show that Petitioner had Medicare billing privileges prior to January 1, 2003.

Petitioner argues that she was enrolled in Medicare in 2014, and that enrollment decision should control. P. Br. Petitioner's argument may be construed to be that the government should be estopped from denying Petitioner's enrollment based on the contractor's decision to grant Petitioner's revalidation of her enrollment in 2014. However, estoppel against the federal government, if available at all, is presumably unavailable absent "affirmative misconduct," such as fraud. See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). There is no evidence suggesting fraud on the part of the MAC or a staff member. Petitioner also argues that the MAC's action in this case might be based on the fact that she opted out of Medicare for a time. However, the MAC's action is consistent with the application of the enrollment requirements for a nurse practitioner established by 42 C.F.R. § 410.75(b), and there is no evidence of any intent to punish or sanction Petitioner for her prior decision to opt out of Medicare.

Petitioner's arguments may also be construed as a request for equitable relief but I have no authority to grant such relief. US Ultrasound, DAB No. 2302 at 8 (2010). I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

III. Conclusion

For the foregoing reasons, I conclude that there was a basis to deny Petitioner's application to enroll in Medicare pursuant to 42 C.F.R. § 424.530(a)(1).

• 1. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.
• 2. Petitioner was already enrolled in Medicare and simply seeking to reactivate her enrollment after having elected to opt out of Medicare for a time. Therefore, the action of the MAC is arguably a revocation pursuant to 42 C.F.R. § 424.535(a)(1). There is, however, no practical difference for Petitioner. Even though a revocation triggers a bar to re-enrollment of one to three years, Petitioner is effectively permanently barred from enrolling as a nurse practitioner, at least until she obtains a master’s or a DNP degree.
• 3. 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.
• 4. Given that Petitioner was enrolled in Medicare prior to the MACs initial determination, Petitioner’s failure to meet the requirements of 42 C.F.R. § 410.75(b) to maintain her enrollment would be a basis for revocation of enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1).