Naz Wahab, M.D., P.C. DAB CR5081

DECISION

The Medicare enrollment and billing privileges of Petitioner, Naz Wahab, M.D., P.C., are revoked pursuant to 42 C.F.R. § 424.535(a)(5)(ii)1 based on a violation of 42 C.F.R. § 424.510(d)(2). The effective date of revocation is February 1, 2017, the date it was determined that Petitioner was not operating a practice location at the address listed in its Medicare enrollment application as its practice location. 42 C.F.R. § 424.535(g).

I.  Procedural History and Jurisdiction

On March 16, 2017, Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor (MAC), notified Petitioner of its initial determination to revoke Petitioner’s Medicare enrollment and billing privileges effective February 1, 2017, and to impose a two-year re-enrollment bar.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 14-15.  The MAC cited 42 C.F.R. § 424.535(a)(5) as authority for the revocation but did not specify which subsection of the regulation is applicable.  The

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MAC alleged that it was determined by an on-site review that Petitioner was not operating a practice at the practice address on file. CMS Ex. 1 at 14.

On April 25, 2017, Petitioner requested reconsideration of the MAC’s initial determination to revoke.2 CMS Ex. 1 at 32-47. On July 3, 2017, the MAC issued a reconsidered determination upholding revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(5), also without specifying the applicable subsection. The MAC upheld the revocation on grounds that an on-site review on February 1, 2017, revealed that the address Petitioner reported to be its practice address was actually a UPS Store®. CMS Exs. 1 at 1-4.

Petitioner requested a hearing before an administrative law judge (ALJ) on September 1, 2017 (RFH). The case was assigned to me and an Acknowledgement and Prehearing Order (Prehearing Order) was issued on September 13, 2017. No issue has been raised regarding the timeliness of Petitioner’s request for hearing, any objection is waived, and I have jurisdiction.

CMS filed a motion for summary judgment and prehearing brief on October 12, 2017, with CMS Exs. 1 and 2. On November 10, 2017, Petitioner filed a prehearing brief and response in opposition to the CMS motion (P. Br.). CMS filed a reply brief on November 22, 2017. Petitioner filed a sur-reply on December 4, 3017, which is accepted (P. Sur-Reply). Petitioner did not object to my consideration of CMS Exs. 1 and 2, which 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. 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)). Petitioner, a physician practice, is a supplier.

The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for enrolling providers and suppliers in Medicare, including the requirement to provide the right to a hearing and judicial review of certain enrollment determinations, such as revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505, suppliers 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 Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or its Medicare contractor 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.

Pursuant to 42 C.F.R. § 424.535(a)(5), CMS may revoke a supplier’s enrollment and billing privileges if CMS determines, upon on-site review, that the supplier is no longer operational to furnish Medicare-covered items or services, or has otherwise failed to satisfy any of the Medicare enrollment requirements.  42 C.F.R. § 424.535(a)(5)(i) - (ii).

Generally, when CMS revokes a supplier’s Medicare billing privileges for not complying with enrollment requirements, the revocation is effective 30 days after CMS or its contractor mails notice of its determination to the supplier.  42 C.F.R. §§ 424.57(e)(1), 424.535(g).  However, when CMS revokes a supplier’s billing privileges because the supplier’s “practice location” is not operational, the revocation is effective as of the date CMS determined the supplier’s practice location was no longer operational.  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 one to three years.  42 C.F.R. § 424.535(c).

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A supplier whose enrollment and billing privileges have been revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498.  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, giving the reasons for its determination and specifying the conditions or requirements the supplier failed to meet, and advising the supplier of its 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(l)(2).  CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied.  42 C.F.R. § 498.5(l)(2).  A hearing on the record, also known as an oral hearing, is required under the Act.  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. Issue

Whether summary judgment is appropriate; and

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

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

My conclusions of law are set forth in bold followed by the pertinent findings of fact and analysis.

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.  P. Br.; P. Sur-Reply.  Accordingly, disposition on the written record is not permissible, unless the CMS motion for summary judgment has merit.

Summary judgment is not automatic upon request, but is limited to certain specific conditions.  The Secretary’s regulations at 42 C.F.R. pt. 498 that establish the procedure

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to be followed in adjudicating Petitioner’s case 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 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 proceedings and made available to the parties in the litigation of this case by my Prehearing Order, para. II.D and G.  The parties were given notice by my 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.

Summary judgment is appropriate when there is no genuine dispute as to any 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 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 differ from that used in 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 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

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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 F. App’x 181 (6th Cir. 2005).

As discussed in more detail hereafter, I conclude that there is no genuine dispute as to any material fact in this case related to revocation pursuant to 42 C.F.R. § 424.535(a)(5)(ii) and summary judgment is appropriate as to that issue.  Summary judgment is also appropriate on the effective date of revocation as there are no genuine disputes of fact material to that issue.

There are genuine disputes of material fact related to whether or not Petitioner was operational at another location at the time of the on-site review on about February 1, 2017.  Petitioner clearly informed the MAC in the request for reconsideration that Petitioner did not maintain a practice location where it saw patients but delivered services in hospitals and facilities in the Las Vegas area.  CMS Ex. 1 at 33.  There were no findings in the reconsidered determination that Petitioner was not operational as alleged and CMS has presented no evidence tending to show that Petitioner’s physicians and staff were not providing covered services as alleged at the time of the onsite review albeit at locations other than that subject to the onsite review.  On summary judgment all inferences must be drawn in favor of the non-movant, in this case, Petitioner.  CMS is not entitled to judgment as a matter for law for revocation pursuant to 42 C.F.R. § 424.535(a)(5)(i).  Therefore, summary judgment is not appropriate for revocation pursuant to 42 C.F.R. § 424.535(a)(5)(i).  If CMS wishes to attempt to prove Petitioner was not operational, as that term is defined in 42 C.F.R. § 424.502 as of the date of the on-site review, CMS may file a motion to reopen pursuant to 42 C.F.R. § 498.102(a).

The issues in this case that require resolution related to revocation based on 42 C.F.R. § 424.535(a)(5)(ii), are issues of law related to the interpretation and application of the regulations that govern enrollment and billing privileges in the Medicare program and application of the law to the undisputed facts of this case.

2. Petitioner was required to report completely, accurately, and truthfully in its change of enrollment application all information requested by the application. 42 C.F.R. § 424.510(d)(1) and (2).

3. CMS or the MAC is authorized to revoke the Medicare enrollment and billing privileges of a provider or supplier that is found upon on site review to fail to satisfy any Medicare enrollment requirement. 42 C.F.R. § 424.535(a)(5)(ii).

4. There is a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(5)(ii) because

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Petitioner failed to meet the Medicare enrollment requirement to report its correct practice location to CMS or the MAC. 42 C.F.R. §§ 424.510(d)(1) and (2), 424.516(d)(1)(iii).

5. Revocation of Petitioner’s Medicare enrollment and billing privileges is effective February 1, 2017, the date it was determined by CMS that Petitioner was not operational at the practice location listed in Petitioner’s January 12, 2017, Medicare change of information enrollment application (CMS-855B). 42 C.F.R. § 424.535(g).

6. I have no authority to review the duration of the bar to re enrollment imposed by the MAC and CMS.

a. Facts

The material facts that are the bases for revocation pursuant to 42 C.F.R. § 424.535(a)(5)(ii) are not disputed.

On January 12, 2017, Petitioner’s agent, Esther Herrmann, filed through the Medicare Provider Enrollment, Chain, and Ownership System (PECOS) a Medicare enrollment application (CMS-855B) on Petitioner’s behalf.  CMS Ex. 1 at 5-9.  The application listed in “Section 4: Practice Location Information” Petitioner’s practice location as 8545 W. Warm Springs Road, Suite A-4 #173, Las Vegas, Nevada 89113 (Warm Springs address).  No other practice location was listed.  The Warm Springs address was also listed as Petitioner’s correspondence address, payment address, and medical records storage location.  CMS Ex. 1 at 5-6.  The application (CMS-855R) shows that Petitioner was receiving reassigned benefits from one supplier from May 1, 2015 to January 1, 2016, at another practice location.  However, that reassignment was marked deleted on the application.  CMS Ex. 1 at 8.  The application lists as “added” four reassignments of Medicare benefits, from Petitioner’s sole owner, Naz A. Wahab, and three others, all of which list the primary practice location address as the Warm Springs address.  CMS Ex. 1 at 8.

On January 26, 2017, a MAC representative contacted Ms. Herrmann by email, acknowledging receipt of the PECOS enrollment application (CMS-855B), and requesting confirmation of the Warm Springs address.  Ms. Herrmann responded, also on January 26, 2017, that “Dr. Wahab has moved her office effective January 1, 2017.”  CMS Ex. 1 at 10-12, 22.  On January 30, 2017, the MAC approved the change of information application and acknowledged that Petitioner’s correspondence address was changed to the Warm Springs address.  CMS Ex. 1 at 24-26.  The January 30 MAC letter did not mention the changes in practice location, reassignments, records storage location, or payment address.

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There is no dispute that the Warm Springs address was a UPS Store® rental mailbox; no patients were seen at the Warm Springs address; and no records were maintained at the address.  P. Br. at 2, 4-6; CMS Ex. 1 at 18, 33.  I accept as true for purposes of summary judgment that Petitioner’s suppliers saw patients only in hospitals, not at a practice location, and that the Warm Springs address was a mail drop only.  CMS Ex. 1 at 33.

The MAC stated in its March 16, 2017, notice of initial determination that an onsite review was conducted at the Warm Springs address on February 1, 2017, and the address was determined to be a UPS Store®.  CMS Ex. 1 at 14.  CMS failed to present a copy of the onsite inspection report.  Petitioner did not specifically deny in its request for a reconsidered determination (CMS Ex. 1 at 32-33), in its request for hearing, or its briefs that an onsite inspection occurred on about February 1, 2017.  I conclude that the MAC notice of initial determination is sufficient evidence that such an onsite investigation occurred and Petitioner has presented no evidence to raise a genuine dispute that the onsite investigation did occur.  The occurrence of an onsite investigation is a material fact for the determination of the effective date of revocation.

b. Analysis

A supplier such as Petitioner is required to submit a complete Medicare enrollment application with accurate and truthful responses to all information requested and to ensure that its enrollment information is updated to remain complete, accurate, and truthful.  42 C.F.R. §§ 424.510(d), 424.515, 424.516.  In order to maintain an active enrollment status in Medicare, a supplier must comply with 42 C.F.R. §§ 424.510(d) and 424.516.  Pursuant to 42 C.F.R. § 424.510(d)(2), a supplier is required to accurately and truthfully provide requested information, including its practice location, in its enrollment and revalidation applications and any application filed to update required information as in this case.  Pursuant to 42 C.F.R. § 424.516(d)(1)(iii), a supplier is required to report a change of practice location to the Medicare contractor within 30 days to ensure that CMS and the MAC have accurate information regarding Petitioner’s correct practice location.  CMS has the right to perform on-site inspections to verify information and confirm that a provider or supplier continues to meet enrollment requirements.  42 C.F.R. §§ 424.510(d)(8), 424.517.  The enrollment application certification statement must be signed by one with an ownership or control interest and with authority to bind the provider or supply both legally and financially to the requirements of the Act and regulations.  The signature attests that the information provided is accurate and that the supplier or provider is aware of and agrees to abide by the regulations, the Act, and all program issuances.  42 C.F.R. § 424.510(d)(3).

Petitioner bears the burden to demonstrate that it meets enrollment requirements and to produce documents demonstrating compliance with all program participation requirements.  42 C.F.R. § 424.535(c).  Petitioner cannot meet its burden in this case

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related to revocation pursuant to 42 C.F.R. § 424.535(a)(5)(ii), even if, I draw all inferences in Petitioner’s favor.

The regulations grant CMS discretion to revoke enrollment and billing privileges if, upon on-site review or other reliable evidence, CMS determines that a provider or supplier is not operational to furnish Medicare-covered items or services or fails to satisfy any Medicare enrollment requirement.  42 C.F.R. § 424.535(a)(5)(i) and (ii).  In this case, Petitioner does not dispute that it failed to accurately report its practice location, in the application submitted using PECOS on January 12, 2017, violating the enrollment requirement of 42 C.F.R. § 424.510(d)(2).  Petitioner concedes that the Warm Springs address was a UPS Store® and contrary to the January 12 application, that address was never a practice location, no patients were seen at that address, and no records were maintained at that address.  P. Br. at 2, 4-6; CMS Ex. 1 at 18, 33.  Accordingly, I conclude Petitioner violated the requirements for maintaining enrollment in Medicare and there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(5)(ii).

Having found that there is a basis for revocation, I have no authority to review the exercise of discretion by CMS to revoke Petitioners’ Medicare enrollment and billing privileges.  Dinesh Patel, M.D., DAB No. 2551 at 10 (2013); Fady Fayad, M.D., DAB No. 2266, at 16 (2009), aff'd, 803 F. Supp. 2d 699 (E.D. Mich. 2011); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 16-17, 19 (2009), aff'd, 710 F. Supp. 2d 167 (D. Mass. 2010).

Summary judgment is also appropriate as to the effective date of revocation.  Pursuant to 42 C.F.R. § 424.535(g):

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

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(Emphasis added).  There is no genuine dispute that Petitioner never had an operational practice at the Warm Springs address despite having reported that address as a practice location.  Pursuant to 42 C.F.R. § 424.535(g), CMS is authorized to establish an effective date of revocation based on the date CMS determined that Petitioner’s practice location was no longer operational, in this case February 1, 2017.

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).  There is no statutory or regulatory language establishing a right to review 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), 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 not subject to ALJ review.  Vijendra Dave, M.D., DAB No. 2672 at 10-11 (2016).

To the extent Petitioner’s arguments could be construed to be that the government should be estopped from proceeding with the revocation, such argument is without merit.  As a matter of law, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pacific 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 or that there was any intent to mislead Petitioner.  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, Petitioner’s Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(5)(ii).  The effective date of revocation is February 1, 2017.

1. Citations are to the 2016 revision of the Code of Federal Regulation (C.F.R.), unless otherwise stated.
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2. Petitioner also submitted a plan of corrective action. CMS Ex. 1 at 17-19. Because revocation in this case is pursuant to 42 C.F.R. § 424.535(a)(5) there is no provision for the submission of a plan of corrective action as there is in the case of revocation pursuant to 42 C.F.R. § 424.535(a)(1). A to Z DME, LLC, DAB No. 2303 at 9-10 (2010). Therefore, MAC action on the plan of corrective action is not subject to review.
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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.
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