Lois K. Sanders, APRN, CPNP, DAB CR5193 (2018)

DECISION

The Medicare enrollment application of Petitioner, Lois K. Sanders, APRN, CPNP, is denied pursuant to 42 C.F.R. § 424.530(a)(1).Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.

I. Background

Novitas Solutions, a Medicare administrative contractor (MAC) for the Centers for Medicare & Medicaid Services (CMS), notified Petitioner by letter dated September 22, 2017, that her revalidation application to enroll in Medicare as a nurse practitioner was denied. The MAC cited 42 C.F.R. § 410.75(b), stating that Petitioner did not meet all the requirements of the regulation. The MAC did not state the basis for denial under

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42 C.F.R. § 424.530(a).The CMS evidence shows that Petitioner filed a revalidation application on June 18, 2017. The application and the fact Petitioner was requesting revalidation shows that she was already enrolled in Medicare and simply seeking to reactivate her enrollment. CMS Ex. 1 at 42-49, 72-74; CMS Ex. 2 at 4-6. 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 Doctor of Nursing Practice (DNP) degree. The MAC advised Petitioner that she could file a corrective action plan or a request for reconsideration. CMS Exhibit (Ex.) 1 at 13, 15, 56-57.

Petitioner requested reconsideration on November 17, 2017. CMS Ex. 1 at 11, 39, 60-71. On February 6, 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 was not in compliance with Medicare requirements. CMS Ex. 1 at 1-2.

On April 4, 2018, Petitioner filed a request for hearing before an administrative law judge (ALJ). On April 10, 2018, the case was assigned to me for hearing and decision, and I issued an Acknowledgment and Prehearing Order (Prehearing Order).

On May 10, 2018, CMS filed a motion for summary judgment and prehearing briefand CMS Exs. 1 and 2. On June 7 and 13, 2018, Petitioner filed a prehearing brief and response in opposition to the CMS motion for summary judgment (P. Br.), and an unmarked document that I treat as if marked Petitioner's exhibit (P. Ex.) 1. On July 27, 2018, CMS waived reply.

Petitioner does not object to my consideration of CMS Exs. 1 and 2 and they are admitted as evidence. CMS does not object to my consideration of P. Ex. 1. P. Ex. 1 is a document titled "Consensus Model for APRN Regulation: Licensure, Accreditation, Certification & Education." It provides background information on the different types of Advanced Practice Registered Nurses, including nurse practitioners such as Petitioner, as well as educational and certification requirements that apply to them. However, Petitioner does not appear to have submitted this document when requesting reconsideration; therefore, pursuant to 42 C.F.R. § 498.56(e), I must determine whether good cause exists to admit new documentary evidence not considered on reconsideration. CMS Ex. 1 at 1-2. If I conclude good cause does not exist, I "must exclude" the evidence. 42 C.F.R. § 498.56(e)(2)(ii). CMS does not object that the document is not authentic or relevant, and those objections are waived. Petitioner offers the document to demonstrate that she is eligible for licensure, and as a result, CMS's denial determination

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"violates [her] right to practice." P. Br. at 1. For reasons discussed below, my jurisdiction in this case is limited to reviewing whether CMS had the authority to deny Petitioner's Medicare enrollment application. Any arguments related to ancillary effects of the CMS action, such as the impact of the denial of Medicare enrollment on Petitioner's Texas Medicaid participation, amount to equitable arguments, which I have no authority to consider. Accordingly, I conclude there is no good cause to admit P. Ex. 1 and I must exclude it from 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 suppliers.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. Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). Petitioner filed an enrollment application to revalidate her Medicare enrollment as a nurse practitioner, a supplier under the Act. CMS Ex. 1 at 42-45; CMS Br. at 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 providers and 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)).

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

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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(b). A nurse practitioner must meet the following requirements 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.

(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).

The Secretary has delegated the authority to accept or deny enrollment applications to CMS. Pursuant to the Secretary's regulations, CMS may deny a provider's or supplier's enrollment application for any of the reasons set out in 42 C.F.R. § 424.530(a). In this case, CMS has denied Petitioner's application under 42 C.F.R. § 424.530(a)(1) because CMS determined that Petitioner did not meet the requirements to enroll as a Medicare supplier.The initial determination cites 42 C.F.R. § 410.75(b) as the basis for the MAC's decision to deny Petitioner's enrollment application. It quotes the regulation in its entirety and concludes that "[b]ased on the requirements above, [Petitioner does] not meet all of the qualifications to enroll in the Medicare program." CMS Ex. 1 at 56. The reconsidered determination recites the basis and conclusion listed in the initial determination. CMS Ex. 1 at 1. The reconsidered determination again quotes 42 C.F.R. § 410.75(b) in its entirety and concludes that "[s]ince [Petitioner does] not possess a master's degree in nursing or Doctor of Nursing Practice (DNP) degree, [her] application was denied." CMS Ex. 1 at 2. Yet, for reasons CMS has not clarified, the reconsidered determination also cites 42 C.F.R. § 410.76 as a basis for denial, since Petitioner "does not possess a master's degree in a defined clinical area of nursing from an accredited educational institution or a Doctor of Nursing Practice (DNP) doctoral degree." CMS Ex. 1 at 3. This provision applies to clinical nurse specialists, rather than nurse practitioners, such as Petitioner. CMS Ex. 1 at 42 43; CMS Br. at 1. I find the unexplained conflict in these decisions to be concerning. Nevertheless, there is no dispute that Petitioner does not meet the requirements of either provision, as she possesses neither a master's degree of any kind nor a DNP degree. Therefore, there would be little purpose in remanding this case to the MAC for clarification.

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A prospective supplier whose enrollment application has been denied may request reconsideration and review as provided by 42 C.F.R. pt. 498. 42 C.F.R. § 424.545(a). A prospective supplier submits a written request for reconsideration to CMS or its contractor. 42 C.F.R. § 498.22(a), (b). CMS or its contractor must give notice of its reconsidered determination to the prospective supplier, giving the reasons for its determination, specifying the conditions or requirements the prospective supplier failed to meet, and advising of the right to an ALJ hearing. 42 C.F.R. § 498.25. If the decision on reconsideration is unfavorable to the prospective supplier, the prospective 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. Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004). The prospective supplier bears the burden to demonstrate that the supplier 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.

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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 enrollment in Medicare 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, 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. Petitioner has not waived oral hearing.

CMS has filed a motion for summary judgment. Summary judgment is not automatic but is limited to certain specific conditions. The procedures applicable to the adjudication of this case are at 42 C.F.R. pt. 498. The regulations do not establish or recognize a summary judgment 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 has also 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. 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. & 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 Hosp. Reg'l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled

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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. 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 F. App'x 181 (6th Cir. 2005).

In this case, I conclude that Petitioner has failed to show that there is genuine dispute as to any material fact pertinent to denial of enrollment under 42 C.F.R. § 424.530(a)(1) that requires a trial. Petitioner has failed to offer evidence from which I might draw the favorable inference that she: 1) was enrolled in Medicare prior to January 1, 2001, so that she is not subject to the requirements of 42 C.F.R. § 410.75(b)(1); or 2) was enrolled prior to January 1, 2003, and meets the requirements of 42 C.F.R. § 410.75(b)(1)(i); or 3) was enrolled after January 1, 2003, and meets the requirements of 42 C.F.R. § 410.75(b)(1)(i) and (ii). The undisputed material facts establish a basis for the denial of Petitioner's enrollment in Medicare under 42 C.F.R. § 424.530(a)(1) as a matter of law. Accordingly, I conclude that summary judgment is appropriate.

2. Petitioner does not to meet the qualifications for Medicare Part B coverage as a nurse practitioner under 42 C.F.R. § 410.75(b).

3. There is a basis for denial of Petitioner's enrollment in Medicare pursuant to 42 C.F.R. § 424.530(a)(1) because Petitioner does not meet the requirements of 42 C.F.R. § 410.75(b).

4. 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, my jurisdiction does not extend to review whether CMS

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properly exercised its discretion to deny Petitioner's Medicare enrollment application.

a. Facts

The material facts are undisputed. Petitioner is a licensed, certified pediatric nurse practitioner who first enrolled in Medicare in 2012. CMS Ex. 1 at 11, 29, 31, 43-44, 62‑68, 72; CMS Ex. 2. In a letter dated June 12, 2017, the MAC notified Petitioner that she was required to revalidate her Medicare enrollment no later than August 31, 2017. CMS Ex. 1 at 46. On August 18, 2017, Petitioner submitted a revalidation enrollment application via the Provider Enrollment, Chain, and Ownership System (PECOS). In Section 2 of the application, in the field for "Medical/Other Professional School," Petitioner listed "University of Florida College of Medicine" with a graduation year of "1980." CMS Ex. 1 at 42. Petitioner did not list any additional degrees or medical or professional schooling in her application. In a written statement that Petitioner submitted when requesting reconsideration, Petitioner stated she had earned a "Bachelor of Science in Nursing in 1980," and she "did not have to have [a] Master's degree," which is otherwise a requirement to be certified as a nurse practitioner, because she became certified before having a master's degree was a requirement. CMS Ex. 1 at 27. Nowhere has Petitioner stated that she possesses either a master's degree in nursing or a DNP degree. There is no dispute that Petitioner was first enrolled in Medicare after January 1, 2003. There is also no dispute that Petitioner does not have a master's degree in nursing or a DNP.

b. Analysis

In order to enroll in Medicare and have his or her services covered under Medicare Part B, a nurse practitioner must meet certain requirements. A nurse practitioner must be a registered professional nurse in accordance with state law. If a nurse practitioner first obtained Medicare billing privileges prior to January 1, 2001, he or she can obtain coverage for services on those two bases alone. If a nurse practitioner did not obtain billing privileges prior to January 1, 2001, but did obtain billing privileges prior to January 1, 2003, a nurse practitioner can obtain Medicare coverage for services if he or she is certified as a nurse practitioner by a recognized national certifying body. If a nurse practitioner first obtained Medicare billing privileges after January 1, 2003, he or she must both be certified by a recognized national certifying body and possess a master's degree in nursing or a DNP degree. 42 C.F.R. § 410.75(b).

There is no dispute that Petitioner first obtained Medicare billing privileges in 2012. Therefore, in order to enroll in Medicare and obtain Medicare Part B coverage for services she provides, Petitioner must be certified by a recognized national certifying body andpossess a master's degree in nursing or a DNP degree. There is no dispute that Petitioner does not possess a master's degree in nursing or a DNP degree. Accordingly, I

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conclude Petitioner does not meet the requirements of 42 C.F.R. § 410.75(b), and CMS was authorized to deny her Medicare revalidation application pursuant to 42 C.F.R. § 424.530(a)(1) since she did not meet the applicable enrollment requirements for her supplier type.

I have concluded that there is a basis for CMS to deny Petitioner Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.530(a)(1). I have no authority to review the exercise of discretion by CMS or its contractor to deny Petitioner enrollment where there is a basis for denial. 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); Letantia Bussell, M.D., DAB No. 2196 at 12-13 (2008). The scope of my authority is limited to determining whether there is a legal basis for denial of Petitioner's Medicare enrollment and billing privileges.

Petitioner does not argue that she meets the requirements of 42 C.F.R. § 410.75(b) or that CMS lacked a basis for denying her revalidation application. Rather, she explains that she has practiced as a Pediatric Nurse Practitioner for many years and did not enroll in Medicare prior to 2012 because it was unnecessary that she do so in her prior positions. In 2011, Petitioner accepted a position in Texas, where, in order to be "fully credentialed as a Medicaid provider," she must be enrolled in Medicare if others at her practice are also enrolled in Medicare, as they apparently are. P. Br. at 1. Petitioner further argues that she meets the grandfathering provisions of the Consensus Model for APRN Regulation, which makes her eligible for licensure as a nurse practitioner, and that she is in fact licensed as a nurse practitioner in Texas. Therefore, she argues, CMS's decision to deny her enrollment in Medicare "violates her right to practice" in Texas. P. Br. at 1.

Whether Petitioner is entitled to be enrolled in Texas Medicaid is not at issue in this case. Any requirements Texas imposes for participation in Medicaid are immaterial. The issue I must resolve is solely whether CMS had a legal basis to deny Petitioner's revalidation application and, thereby, her enrollment as a Medicare supplier. Petitioner has not presented any evidence to show that CMS's decision to deny Petitioner Medicare enrollment and billing privileges violates her right to practice in Texas. Denial of Petitioner's enrollment in Medicare simply restricts her ability to receive reimbursement for Medicare Part B services she provides to Medicare beneficiaries.

There is no dispute that Petitioner was enrolled in Medicare with billing privileges in 2012. However, Petitioner's prior enrollment is not a basis for concluding that CMS is estopped from revoking or denying Petitioner's enrollment based on subsequent review of whether Petitioner meets regulatory requirements to enroll in Medicare. 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.

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Petitioner's arguments may also be viewed as tantamount to requests 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).