Richard Ranicke, D.C., DAB CR5557 (2020)

DECISION

The Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor, National Government Services (NGS), revoked the Medicare enrollment and billing privileges of Petitioner, Richard Ranicke, D.C., pursuant to 42 C.F.R. § 424.535(a)(4).  Petitioner challenges the revocation.  For the reasons discussed below, I affirm CMS's revocation of Petitioner's Medicare enrollment and billing privileges.

I.  Background

Petitioner is a chiropractor licensed to practice in Wisconsin.  On May 24, 2012, the Wisconsin Chiropractic Examining Board found that Petitioner had engaged in unprofessional conduct and suspended his license for 30 days.  CMS Exhibit (Ex). 1 at 2‑5.  That board further restricted Petitioner's license by requiring completion of educational programs and compliance with monitoring by a mentor for at least two years following the termination of his suspension.  On March 9, 2015, the Wisconsin board

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removed the limitations on Petitioner's license, returning him to full and unrestricted status.  Id. at 6.

On March 29, 2017, Petitioner electronically submitted an application via the Provider Enrollment, Chain, and Ownership System (PECOS) to revalidate his enrollment as a supplier in the Medicare program.  CMS Ex. 3.  In Section 3 of the application, entitled "FINAL ADVERSE LEGAL ACTIONS," Petitioner answered "No" in response to the question "Has a final adverse action ever been imposed against an applicant under any current or former name or business entity?"  Id. at 3.  Petitioner made no mention of his 2012 license suspension by the Wisconsin Chiropractic Examining Board.  Petitioner signed the certification statement attesting to the accuracy of the information provided in the application.  Id. at 1.

On April 5, 2017, CMS asked Petitioner by email to "update" the Adverse Legal Actions section "accordingly and completely," attach documentation of any adverse legal actions, and sign a new certification statement.  CMS Ex. 6 at 1.  Petitioner submitted corrections on April 26, 2017.  CMS Ex. 4.  In the "FINAL ADVERSE LEGAL ACTIONS" section, Petitioner reported an action occurred on May 24, 2012.  Id. at 3.  Under the heading of "Adverse Legal Action," Petitioner stated "Chiropractic license limited."  Id.  Petitioner indicated that the Wisconsin Chiropractic Examining Board had taken the action.  Id.  Under the heading of "Resolution," Petitioner stated "I, Dr. Richard Ranicke, [c]ompleted the requirements of the order and on 03/09/2015 was granted a removal of all limitations of my Chiropractic License to practice."  Id.  Petitioner again submitted a certification statement with his updated application.  Id. at 1.

On June 20, 2017, NGS notified Petitioner by letter that it had revoked his Medicare enrollment and billing privileges, effective July 20, 2017.  CMS Ex. 7.  NGS explained Petitioner had provided false or misleading information on his enrollment application by failing to report an adverse legal action against him, in violation of 42 C.F.R. § 424.535(a)(4).  CMS Ex. 7 at 1.  NGS informed Petitioner he would be barred from re-enrolling in the Medicare program for three years, effective 30 days from the date of postmark of the letter.  Id. at 2.  Petitioner timely requested reconsideration.  CMS Ex. 8.  On October 10, 2017, NGS issued a reconsidered determination upholding its revocation action.  CMS Ex. 5.

Petitioner timely requested a hearing (Hearing Request) before an administrative law judge (ALJ), and I was designated to hear and decide this case.  On November 9, 2017, I issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing Order) setting forth a briefing schedule.  CMS filed a motion for summary judgment and brief (CMS Br.), as well as eight proposed exhibits (CMS Exs. 1-8), on December 14, 2017.  Petitioner filed a brief opposing summary judgment, identified three witnesses, and offered three proposed exhibits (P. Exs. 1-3) on January 16, 2018.

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II.  Admission of Exhibits and Decision on the Record

Neither party has objected to exhibits proposed by the opposing party.  I therefore admit CMS Exs. 1-8 and P. Exs. 1-3 into the record.  Petitioner identified three witnesses and offered their written direct testimony.  CMS did not request to cross-examine Petitioner's witnesses.  Consequently, I will not hold an in-person hearing in this matter, and I issue this decision based on the written record.  Civ. Remedies Div. P. § 19(d).

III.  Issues

Whether CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(4) for submitting false or misleading information on the revalidation enrollment application.

IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2).

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

A. Applicable Law

As a chiropractor, Petitioner is a supplier of health care services for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.20(b)(5), 498.2.  In order to participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R §§ 424.505, 424.510.

To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time.  42 C.F.R. § 424.515.  When CMS notifies suppliers that it is time to revalidate, the suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS' notification.  42 C.F.R. § 424.515(a)(2).

CMS may revoke a supplier's Medicare enrollment and billing privileges for any reason stated in 42 C.F.R § 424.535(a), which includes providing false or misleading information:

(4)  False or misleading information.  The provider or supplier certified as "true" misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.  (Offenders may be subject to either

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fines or imprisonment, or both, in accordance with current law and regulations.)

42 C.F.R. § 424.535(a)(4).

B.  CMS properly revoked Petitioner's Medicare enrollment and billing privileges because he submitted false or misleading information in his revalidation enrollment application.

The relevant and dispositive facts are not in dispute.  The Wisconsin Chiropractic Examining Board took adverse action against Petitioner in May 2012, suspending his chiropractic license for 30 days and placing other limitations on his license.  CMS Ex. 1. In March 2015, the Wisconsin Chiropractic Examining Board restored Petitioner's license to practice on an unrestricted basis.  Id. at 6.

The enrollment application Petitioner electronically submitted in March 2017 to revalidate his enrollment information explicitly asked him whether any final adverse actions had been imposed against him.  CMS Ex. 3 at 3.  Petitioner responded "No" to this question.  Even after NGS gave Petitioner another opportunity to correct his application in April 2017, he again failed to disclose his 2012 license suspension, choosing only to report that his license had been "limited."  CMS Ex. 4 at 3.  By signing the certification statements on his applications, Petitioner certified that all the information he had provided was true.  CMS Ex. 3 at 1; 42 C.F.R. §§ 424.510(d)(2)(i), (d)(3).1

The regulations define a "final adverse action" to include "[s]uspension . . . of a license to provide health care by any State licensing authority."  42 C.F.R. § 424.502.  The suspension of Petitioner's chiropractic license by the Wisconsin Chiropractic Examining Board clearly meets this definition.  Yet Petitioner did not report his 2012 license suspension as a final adverse action in either his initial or revised application.  As a result, the application he certified as truthful did not contain "[c]omplete, accurate, and truthful responses," but rather was incomplete, false, and misleading.  See 42 C.F.R. § 424.510(d)(2)(i).  The record clearly demonstrates CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4).

In response, Petitioner does not deny his license suspension or his failure to report it on his application.  He instead argues that he inadvertently omitted his license suspension from the application due to his "lack of understanding" of the application process.  P. Br. at 3-4, 6-7; see Hearing Request.  According to Petitioner, the Wisconsin Chiropractic Examining Board imposed numerous limitations against his license, including

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suspension, and the application was unclear as to whether he needed to disclose "one or all" of them in the "final adverse legal actions" section.  Petitioner argues he relied on NGS to assist him, and that NGS should have given him another opportunity to correct any errors.  Petitioner further posits that his signature cannot serve as a true certification of his application before he has had a chance to submit a corrected application.  Id.

Petitioner's arguments are ultimately without merit.  While he may not have intended to mislead CMS with his failure to disclose his suspension on his application, his lack of intent to do so is irrelevant.  The regulation at 42 C.F.R. § 424.535(a)(4) contains no requirement that CMS show evidence of intent to mislead or to misrepresent.  Instead, it only requires an applicant to submit information that is false or misleading that he certified to be true.  Sandra E. Johnson, CRNA, DAB No. 2708 at 15 (2016), citing Mark Koch, D.O., DAB No. 2610 at 4-5 (2014); Patrick Brueggeman, D.P.M., DAB No. 2725 (2016).  The record clearly supports such a finding.

Further, the applicable regulations contain no requirement for CMS to give a supplier the opportunity to correct errors on an enrollment application in order to avoid a revocation action.  Care Pro Home Health, Inc., DAB No. 2723 at 9 (2016).  Even so, CMS gave Petitioner a second chance to submit corrections.  Unlike many similarly situated suppliers, CMS's contractor alerted Petitioner to revise the "Adverse Legal Actions" section of his application, attach necessary documentation, and sign a new certification statement.  CMS Ex. 6 at 1.

In reviewing his initial response to that question, I find it difficult to believe that a licensed professional would not realize he had inadvertently omitted the fact of his suspension.2   Rather than provide a "[c]omplete, accurate, and truthful response" as required by the regulations, see 42 C.F.R. § 424.510(d)(2)(i), Petitioner chose to report only that his license had been "limited," and again failed to disclose his license suspension.  The failure to disclose a 30-day suspension would clearly have misled CMS or its contractor in the attempt to assess Petitioner's qualification to be revalidated as a biller to the Medicare program.

There is also no statutory or regulatory support for Petitioner's contention that his signature could not have served as a true certification while he was still making changes to his application.  The regulation at 42 C.F.R. § 424.510(d)(3) explicitly states that "[t]he [certification statement] signature attests that the information submitted is accurate and that the provider or supplier is aware of, and abides by, all applicable statutes, regulations, and program instructions."  The record establishes that by failing to report

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his license suspension and then signing the certification statement on the application, Petitioner clearly certified as "true" information on his application that was misleading or false.

Petitioner also complains that the online revalidation application process is "complicated" and "confusing" and that he has been advised to use the paper revalidation process in the future.  He states that his error could have been resolved through a "dialogue" with NGS and suggests that other physicians have been permitted to make corrections and resubmit their applications.  Hearing Request; P. Br. at 3-4, 6-7; see P. Ex. 2.

But Petitioner had the option to revalidate his Medicare enrollment either through PECOS or by submitting a paper application.  If Petitioner found the electronic format of PECOS confusing, he could have submitted a paper application to CMS instead to revalidate.  Moreover, Petitioner's own statements that he "consulted with several people at NGS" belie his claim that he did not have a "dialogue" with NGS.  CMS Ex. 8 at 1.

Finally, even if I agreed with Petitioner that the application process was unreasonably complicated or confusing, I have no authority to review CMS' revalidation process or otherwise grant Petitioner any form of equitable relief.  See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements."); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements).

VI.  Conclusion

For the foregoing reasons, I affirm CMS' revocation of Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4).

1. While not in the record before me, Petitioner's electronically filed March 2017 application reflects he certified his application with a paper certification statement.  CMS Ex. 3 at 1.  Petitioner electronically signed the certification statement for his April 2017 application.  CMS Ex. 4 at 1.
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2. Though it does not affect my analysis, I find it far more likely that Petitioner sought to minimize the nature of the adverse action against him than that he twice failed to recognize the need to mention a 30-days suspension of his license to practice as an adverse action.  Any reasonable person who believed he was obliged to report the restrictions imposed by a licensing board after his suspension would surely have also recognized his obligation to report the suspension itself.
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