Marlene Henze, M.D., DAB CR5650 (2020)

DECISION

Petitioner, Marlene Henze, M.D., is an Illinois physician who participated in the Medicare program until June 2, 2017, when the Centers for Medicare & Medicaid Services (CMS) revoked her enrollment, citing 42 C.F.R. § 424.535(a)(4).  CMS took this action because Petitioner Henze did not report, on her Medicare enrollment application, that her medical license had been suspended.

Petitioner now appeals the revocation.

I find that, pursuant to 42 C.F.R. § 424.535(a)(4), CMS appropriately revoked Petitioner Henze’s Medicare enrollment because she submitted false or misleading information on her Medicare enrollment application.

Background

In a revocation notice, dated May 3, 2017, the Medicare contractor, National Government Services, revoked Petitioner Henze’s Medicare enrollment, effective June 2, 2017.  As the notice letter explains, the contractor acted pursuant to 42 C.F.R. § 424.535(a)(4)

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because, when her enrollment application asked whether she had any adverse legal history, she responded “no.”  In fact, her medical license had been suspended from July 1 until August 10, 2016.  CMS Ex. 2.

Petitioner requested reconsideration.  CMS Ex. 3.  In a reconsidered determination, dated September 11, 2017, a CMS hearing officer affirmed the revocation, noting that the Illinois Department of Financial and Professional Regulation suspended Petitioner’s medical license from July 1 until August 10, 2016.  Yet, on her March 28, 2017 enrollment application, Petitioner answered “no” to the question of whether she had “ever had a final adverse legal action . . . posed against [her].”  CMS Ex. 1 at 2.  The hearing officer rejected her arguments that the error was unintentional, that the license suspension was based on an inadvertent unpaid tax, and that the revocation was too harsh.  CMS Ex. 1 at 2-3.

Petitioner again appealed.  CMS has filed a prehearing brief and motion for summary judgment (CMS Br.), with seven exhibits (CMS Exs. 1-7).  Petitioner filed, as her brief, her request for ALJ review, along with nine exhibits (P. Exs. 1-9).  In the absence of any objections, I admit into evidence CMS Exs. 1-7 and P. Exs. 1-9.

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed each party to submit the written direct testimony of any proposed witnesses and, if it wished to cross-examine an opposing witness, to state so affirmatively.  Acknowledgment and Pre-hearing Order at 5 (¶¶ 8, 9) (December 7, 2017).  Neither party has any witnesses.  An in-person hearing would therefore serve no purpose, and I may decide this case based on the written record.  See Acknowledgment at 5 (¶ 10).

Discussion

Pursuant to 42 C.F.R. § 424.535(a)(4), CMS properly revoked Petitioner Henze’s Medicare enrollment because she submitted false or misleading information on her Medicare enrollment application.1

Statute and regulations.  CMS regulates the Medicare enrollment of providers and suppliers.  Social Security Act (Act) § 1866(j)(1)(A).  It may revoke a supplier’s enrollment in the program if, on her Medicare enrollment application, she certified as “true” misleading or false information.  42 C.F.R. § 424.535(a)(4).

As discussed below, Medicare enrollment applications direct the applicant to disclose any “final adverse legal action.”  See, e.g., CMS Ex. 7 at 14-15.  Suspension by a state

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licensing authority of a license to provide health care is among the adverse actions listed in the regulations and on the application.  42 C.F.R. § 424.502; see CMS Ex. 7 at 14.

Revocation of Petitioner’s Medicare enrollment.  Petitioner concedes that the Illinois medical licensing authority (Illinois Department of Financial and Professional Regulation) suspended her medical license from July 1 until August 10, 2016, because she had not paid a tax penalty.  CMS Ex. 3 at 2; P. Br. at 1.  Nevertheless, in a Medicare enrollment application (CMS 855I), filed on March 28, 2017, Petitioner Henze falsely answered “no” to the question about whether she had any final adverse legal action taken against her.  CMS Ex. 7 at 15.  Petitioner attributes the misstatement to a “clerical error,” made by hospital staff, who completed the form on her behalf.  She claims that she was not even aware that the application contained false information because she signed the document without reviewing it.  CMS Ex. 3 at 1-2.

Acknowledging that the merits of her license suspension are not at issue, Petitioner nevertheless claims that she did not receive notice of the proposed suspension; had she known, she could have corrected the deficiency and avoided the suspension altogether.  CMS Ex. 3 at 3.

Finally, Petitioner argues that the circumstances of her false statement, as well as those underlying the license suspension, do not justify the harsh result of the revocation or three-year bar to reenrollment.  CMS Ex. 3 at 4.

The Departmental Appeals Board has repeatedly observed that a Medicare applicant is responsible for the contents of her application.  Section 424.535(a)(4) “does not require proof that [the applicant] subjectively intended to provide false information, only proof that he in fact provided misleading  or false information that he certified as true.”  Sandra E. Johnson, CRNA, DAB No. 2708 at 15 (2016), quoting Mark Koch, D.O., DAB No. 2610 at 4 (2014).  As in Johnson and Koch, Petitioner here was not without fault.  She admits that, contrary to her signed certification that she had done so, she did not read the completed application before signing and submitting it.  Failing to do so “was certainly negligent and exhibited indifference to Medicare requirements.”  Koch, DAB No. 2610 at 4-5.

Conclusion

I affirm CMS’s determination.  CMS may revoke Petitioner Henze’s Medicare enrollment because she submitted false and misleading information on her application.  42 C.F.R. § 424.535(a)(4).

1. I make this one finding of fact/conclusion of law to support my decision.
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