Gentletouch Healthcare Inc., DAB CR5678 (2020)

DECISION

There is no basis to revoke the Medicare enrollment and billing privileges of Petitioner, Gentletouch Healthcare Inc., pursuant to 42 C.F.R. § 424.535(a)(1) or (2).

I.  Background

Petitioner was enrolled in Medicare as a home health agency with billing privileges.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 2.  Palmetto GBA, LLC, a Medicare administrative contractor (MAC) notified Petitioner by letter dated April 6, 2018, of its initial determination to revoke Petitioner's Medicare enrollment and billing privileges effective December 20, 2017.  CMS Ex. 1 at 10.  The MAC cited 42 C.F.R. § 424.535(a)(2)1 as authority to revoke Petitioner's Medicare enrollment and billing privileges.  The MAC cited as grounds that GO,2 who was listed in CMS records as a

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W‑2 managing employee and director of Petitioner, was excluded from participation in Medicare and all federal health care programs by the Department of Health and Human Services Inspector General (IG) effective December 20, 2017.  CMS Ex. 1 at 10.  The MAC imposed a three-year re-enrollment bar effective 30 days after the postmark of the revocation notice.  CMS Ex. 1 at 11.

In a letter dated June 6, 2018, Petitioner requested reconsideration of the revocation.  CMS Ex. 1 at 7-8.  A CMS hearing officer upheld the revocation pursuant to 42 C.F.R. § 424.535(a)(2) in a reconsidered determination dated September 10, 2018.  CMS Ex. 1 at 1-6.

On November 7, 2018, Petitioner timely filed a request for hearing before an administrative law judge (ALJ).  On November 15, 2018, the case was assigned to me for hearing and decision, and an Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction.

On December 17, 2018, CMS filed a combined prehearing brief and motion for summary judgment with CMS Exs. 1 and 2.  On January 14, 2019, Petitioner filed a response in opposition to CMS's motion for summary judgment with Petitioner's exhibit (P. Ex.) 1.  CMS filed a reply brief on January 29, 2019.  On February 7, 2019, I denied CMS's motion for summary judgment and set the case for hearing.

On March 26, 2019, just eight days before the hearing, CMS issued a reopened and revised reconsidered determination and filed a copy in this case marked as CMS Ex. 3.  CMS explained in the notice letter that the revised reconsideration was issued to add 42 C.F.R. § 424.535(a)(1) as an additional basis for revocation.  CMS Ex. 3 at 1.  CMS determined that revocation under 42 C.F.R. § 424.535(a)(1) was proper because Petitioner was not in compliance with the reporting requirements of 42 C.F.R. § 424.516.  Specifically, CMS cited Petitioner's failure to report a change in ownership within 30 days of GO's removal from ownership as required by 42 C.F.R. § 424.516(e)(1), and failure to report GO's exclusion by the IG within 90 days of the date of the exclusion as required by 42 C.F.R. § 424.516(e)(2).  CMS Ex. 3 at 5-6.

On April 3, 2019, a hearing was convened by video teleconference, and a transcript (Tr.) of the proceedings was prepared.  CMS Exs. 1 through 3 and P. Ex. 1 were admitted as evidence.  Tr. 22-35.  CMS did not call any witnesses and rested after admission of its documents as evidence.  Tr. 36.  Petitioner called Tonyon Boyo, Petitioner's owner and administrator, as a witness.

Following the hearing, both parties filed post-hearing briefs on May 24, 2019.  CMS waived its post-hearing reply on July 1, 2019.  Petitioner did not file a reply brief.

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II.  Discussion

A.  Applicable Law

Sections 1811 through 1821 of the Social Security Act (the Act) (42 U.S.C. §§ 1395c-1395i-5) establish the hospital insurance benefits program for the aged and disabled known as Medicare Part A.  Section 1831 of the 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 both the Part A and B programs is through the MACs.  Act §§ 1816, 1842(a) (42 U.S.C. §§ 1395h, 1395u(a)).  Payment under the programs for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.3  Act §§ 1815, 1817, 1834(j)(1) (42 U.S.C. §§ 1395g, 1395i, 1395m(j)(1)); 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioner, a home health agency, is a provider of services.

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 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 such as Petitioner must be enrolled in the Medicare program and be issued a billing number to have billing

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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 a MAC may revoke an enrolled provider's Medicare enrollment and billing privileges and provider agreement for any of the reasons listed in 42 C.F.R. § 424.535.  The two provisions upon which CMS relies in this case are 42 C.F.R. § 424.535(a)(1) and (2).  Pursuant to 42 C.F.R. § 424.535(a)(1), CMS may revoke a provider's enrollment and billing privileges if the provider is determined not to be in compliance with enrollment requirements, such as the reporting requirements specified in 42 C.F.R. § 424.516.  Pursuant to 42 C.F.R. § 424.535(a)(2), CMS may revoke a provider's enrollment and billing privileges if the provider or certain specified officers, owners, or employees are excluded, debarred, or suspended from participating in Medicare, Medicaid, or other federal health care programs.

Generally, when CMS revokes a provider'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 provider.  42 C.F.R. §§ 424.57(e)(1), 424.535(g).  However, when CMS revokes a provider's billing privileges based on a federal exclusion, the revocation is effective the date of exclusion.  42 C.F.R. § 424.535(g).  Under the regulations in effect at the time of the initial determination in this case, when a provider's Medicare enrollment and billing privileges were revoked, the provider was barred from re-enrolling in the Medicare program for one to three years.  42 C.F.R. § 424.535(c).

A provider whose enrollment and billing privileges have been revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. § 424.545(a).  A provider 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 provider, giving the reasons for its determination, specifying the conditions or requirements the provider failed to meet, and advising the provider of the right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the provider, the provider 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 provider bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c).

The Secretary's regulations do not address the allocation of the burden of proof or the standard of proof.  However, the Board has addressed the allocation of the burden of proof under 42 C.F.R. pt. 498 in many decisions.  The standard of proof is a

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preponderance of the evidence.  CMS has the burden of coming forward with the evidence and making a prima facie showing of a basis, in this case, for revocation of Petitioner's enrollment.  Petitioner bears the burden of persuasion to rebut CMS's prima facie showing by a preponderance of the evidence or to establish any affirmative defense.  Adora Healthcare Services, Inc., DAB No. 2714 at 4-5 (2016) (same allocation of burden of proof applies in provider and supplier enrollment appeals as in other cases subject to 42 C.F.R. pt. 498); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff'd, 129 F. App'x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998); Hillman Rehab. Ctr., DAB No. 1611 (1997) (remand), DAB No. 1663 (1998) (aft. remand), aff'd, Hillman Rehab. Ctr. v. United States, No. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999).

"Prima facie" means generally that the evidence is "[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted."  Black's Law Dictionary 1228 (8th ed. 2004).  Thus, CMS has the initial burden of coming forward with sufficient evidence to show that its decision to revoke Petitioner's Medicare participation and billing privileges is legally sufficient under the Act and regulations.  CMS makes a prima facie showing of a basis for revocation if the credible evidence CMS relies on is sufficient to support a decision in its favor absent an effective rebuttal by Petitioner.  One might conclude that if the preponderance of the evidence is required in these proceedings, that standard would also apply to the requirement for CMS to make a prima facie showing; that is, CMS should be burdened to present evidence sufficient to establish a fact as more likely true and to raise a presumption.  However, the Board has never ruled that CMS must establish its prima facie case by a preponderance of the evidence.  Indeed, it is unclear from prior Board decisions whether CMS can make a prima facie showing with little more than mere allegations or a scintilla of evidence.

B.  Issue

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

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

My conclusions of law are set forth in bold text followed by my findings of fact and analysis.  I have carefully considered all the evidence and the arguments of both parties, though not all may be specifically discussed in this decision.  I discuss in this decision the

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credible evidence given the greatest weight in my decision-making.4   I also discuss any evidence that I find is not credible or worthy of weight.  The fact that evidence is not specifically discussed should not be considered sufficient to rebut the presumption that I considered all the evidence and assigned such weight or probative value to the credible evidence that I determined appropriate within my discretion as an ALJ.  There is no requirement for me to discuss the weight given every piece of evidence considered in this case, nor would it be consistent with notions of judicial economy to do so.  Charles H. Koch, Jr., Admin. L. & Prac. § 5:64 (3d ed. 2013).

1.  There is no basis to revoke Petitioner's billing privileges pursuant to 42 C.F.R. § 424.535(a)(2) based on the IG's exclusion of GO because GO was not an owner, managing employee, authorized or delegated official, medical director, supervising physician, or other health care personnel of Petitioner when he was excluded by the IG on December 20, 2017.

2.  There is no basis to revoke Petitioner's billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) based on Petitioner's failure to report GO's exclusion by the IG as required by 42 C.F.R. § 424.516(e) because, when he was excluded, GO was not an owner, managing employee, authorized or delegated official, medical director, supervising physician, or other health care personnel of Petitioner.

3.  Petitioner timely reported a change in ownership within the meaning of 42 C.F.R. § 424.516(e).

4.  There is no basis to revoke Petitioner's billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) based on Petitioner's failure to report a change in ownership as required by 42 C.F.R. § 424.516(e).

a.  Facts

i.  November 2016 CMS-855A

On November 16, 2016, Tonyon Boyo signed a Medicare enrollment application (November 2016 CMS‑855A), which reported that, effective November 5, 2016:  GO acquired a 49 percent ownership interest in Petitioner; GO had 49 percent control as an

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officer of Petitioner; GO was Petitioner's alternate administrator; GO was a director; and GO was a W-2 managing employee with 49 percent operational and/or managerial control.  CMS Ex. 1 at 18-23.  The CMS-855A reported that effective November 5, 2016, Tonyon Boyo held the remaining 51 percent ownership interest and operational and/or managerial control with the title Director of Nursing.  CMS Ex. 1 at 13-17.  The CMS evidence includes an email dated November 2, 2016, which shows that the MAC previously received the application and requested more information or revisions.  The email included a document control number (DCN) 16286C21100069.  I have received no evidence that shows whether the DCN applies to the November 2016 CMS-855A, the November 2 email, or some other document.  CMS Ex. 1 at 66-67.  CMS has also not placed in evidence the CMS-855A that must have been signed by Petitioner's manager, owner, director, or other authorized official prior to the November 2, 2016 email.

On December 12, 2016, the MAC notified Petitioner that it had completed Petitioner's requested updates to its provider information.  The MAC notice letter refers to DCN 16286C21100069 which, based on the November 2, 2016 email, I infer must apply to the November 2016 CMS-855A.  The MAC notice shows it updated Petitioner's special payments address, added a medical record storage facility and, effective November 5, 2016, both Tonyon Boyo and GO were listed as management personnel.  CMS Ex. 1 at 68-69.  The letter says nothing about updating enrollment information related to the ownership of Petitioner.

I infer based on the December 12, 2016 MAC notice that processing of Petitioner's November 2016 CMS-855A was completed as of the date of that notice.  However, the fact that the December 12 notice does not mention changing ownership information in Petitioner's enrollment record lends credibility to Ms. Boyo's testimony (Tr. 46-50) that she thought the MAC was still processing the November 2016 CMS-855A when she spoke with a MAC representative in February 2017.

ii.  February 2017 CMS-855A

On February 20, 2017, Tonyon Boyo signed a CMS-855A (February 2017 CMS-855A) that shows she was the 100 percent owner of Petitioner effective February 20, 2017, with the title President/CEO and 100 percent operational and/or managerial control.  CMS Ex. 1 at 25-52; P. Ex. 1 at 1-13.

On April 27, 2017, the MAC acknowledged that it had received Petitioner's request to withdraw or cease processing the CMS 855-A submitted by Petitioner reporting a change of information.  The letter included the DCN 17060C24100167, but did not specify that it related to the February 2017 CMS-855A.  CMS Ex. 1 at 54.

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iii.  Boyo's Testimony and Corroborating Evidence

Tonyon Boyo testified that she is Petitioner's owner and administrator.  Tr. 40-41.  Ms. Boyo testified that she decided to take on GO as a partner in the business.  She notified CMS of that change by filing an application with the required information in November 2016.  Subsequently, she changed her mind and removed GO from ownership and any positions with Petitioner.  She advised CMS by an application reflecting the changes that she filed in February 2017.  Tr. 43-45.5   Ms. Boyo's testimony is consistent with and supported by the two CMS-855A applications in evidence (CMS Ex. 1 at 18-23, 25-52).

Ms. Boyo testified that after she filed the enrollment application in February 2017, a MAC representative called to ask what was going on because two application had been filed in a short-time.  Ms. Boyo testified that she understood the representative to say one application was being processed and the other had just been received by the MAC.  She testified that she told the MAC representative that she needed to inform the MAC and CMS that she was the 100 percent owner of Petitioner and its managing partner.  She testified that the MAC representative told her to submit a letter withdrawing the CMS-855A that added GO and gave her the DCN number to use in the letter.  Tr. 46-50.  Ms. Boyo's testimony is unrebutted.  I find Ms. Boyo's testimony credible, including her testimony as to her discussion with the MAC representative following the filing of the February 2017 CMS-855A.

The CMS evidence includes a Texas Franchise Tax Public Information Report (Texas Tax Report) for the year 2017 that Tonyon Boyo signed and dated September 30, 2017.  The report lists Tonyon Boyo as Petitioner's President and director, and the only officer, director, member, general partner, or manager of Petitioner.  CMS Ex. 1 at 63, 65.  The document is consistent with Ms. Boyo's testimony that GO was not an owner, officer, director, member, general partner, or manager of Petitioner, at least as of September 30, 2017, several months before GO's exclusion by the IG in December 2017.

iv.  GO's Exclusion

There is no dispute that on December 20, 2017, GO was excluded by the IG from participation in Medicare, Medicaid, and all federal health care programs.  CMS Ex. 1 at 64.

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v.  Initial and Reconsidered Determinations

On April 6, 2018, the MAC issued its initial determination revoking Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(2) effective December 20, 2017.  The basis for revocation was that GO, who was listed in CMS records as an owner and managing employee and director of Petitioner, was excluded by the IG on December 20, 2017.  A three-year re-enrollment bar was imposed.  CMS Ex. 1 at 10-11.

Petitioner requested reconsideration by letter dated June 6, 2018, signed by Tonyon Boyo as Administrator.  Ms. Boyo explained in the request for reconsideration that she did submit the November 2016 CMS-855A to add GO as an owner, manager, and director.  However, she subsequently developed the belief that adding GO within 36 months of Petitioner's Medicare enrollment could cause revocation of the enrollment.  Therefore, she filed the February 2017 CMS-855A to remove GO from ownership and management of Petitioner.  Ms. Boyo stated she received a call from a specific MAC employee on an unspecified date and it was suggested that Ms. Boyo could simply withdraw the application and she agreed.  She states that she understood that the application to be withdrawn was the November 2016 CMS-855A that added GO to ownership and management of Petitioner.  She believed that CMS records reflected that she had 100 percent ownership of Petitioner because she received the MAC's letter dated April 27, 2017, which stated that withdrawal of the application was accepted.  CMS Ex. 1 at 7-8.

A CMS hearing officer issued a reconsidered determination on September 10, 2018.  CMS Ex. 1 at 1-6.  She upheld revocation pursuant to 42 C.F.R. § 424.535(a)(2), based on the fact that Petitioner's Medicare enrollment record showed that GO was an officer, director, W-2 managing employee, and part-owner of Petitioner when the IG excluded him on December 20, 2017.  CMS Ex. 1 at 5.  The hearing officer rejected Ms. Boyo's statements and evidence that GO was no longer an officer, director, W-2 managing employee, or part-owner of Petitioner on December 20, 2017, when he was excluded by the IG.  Rather, the hearing officer elected to rely upon Medicare records, also rejecting evidence and Ms. Boyo's assertions that those records were erroneous because the MAC treated the February 2017 CMS-855A as withdrawn, when in fact, it was not.  CMS Ex. 1 at 4.

On March 26, 2019, CMS issued a reopened and revised reconsidered determination.  CMS Ex. 3.  The CMS hearing officer again upheld revocation of Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(2) on the same basis as the original reconsidered determination.  However, the hearing officer also concluded revocation was appropriate pursuant to 42 C.F.R. § 424.535(a)(1) based on Petitioner's failure to report GO's exclusion by the IG, and GO's removal as an owner, an officer, director, and W-2 managing employee of Petitioner.  Reporting of certain changes is required by 42 C.F.R. § 424.516.  The hearing officer admitted that Petitioner filed the

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February 2017 CMS-855A, but concluded the application was withdrawn and never processed to completion.  CMS Ex. 3 at 5-6.  The reopened and revised reconsideration did not advise Petitioner of the right to submit a plan of correction pursuant to 42 C.F.R. § 424.535(a)(1).

vi.  Additional Specific Findings of Fact

When GO was excluded by the IG on December 20, 2017, GO was not an owner, managing employee, authorized or delegated official, medical director, supervising physician, or other health care personnel of Petitioner within the meaning of 42 C.F.R. § 424.535(a)(2).

There is no dispute that Petitioner's February 2017 CMS-855A was received by the MAC.

Petitioner's February 2017 CMS-855A was withdrawn by Petitioner in error.

b.  Analysis related to 42 C.F.R. § 424.535(a)(2)

CMS is authorized to revoke a currently enrolled provider's Medicare enrollment and any corresponding provider agreement for any of the reasons specified by 42 C.F.R § 424.535(a), including:

(2)  Provider or supplier conduct.  The provider or supplier, or any owner, managing employee, authorized or delegated official, medical director, supervising physician, or other health care personnel of the provider or supplier is –

(i) Excluded from the Medicare, Medicaid, and any other Federal health care program, as defined in [42 C.F.R.] § 1001.2 of this chapter, in accordance with section 1128, 1128A, 1156, 1842, 1862, 1867 or 1892 of the Act.

42 C.F.R § 424.535(a)(2)(i).

The reopened and revised reconsidered determination vacated and superseded the prior reconsidered determination.  CMS Ex. 3 at 1.  Accordingly, the reopened and revised reconsidered determination is the only determination subject to my review.  Neb Group of Arizona LLC, DAB No. 2573 at 7 (2014) (in provider and supplier enrollment cases, the CMS determination subject to review is the reconsidered determination).

In the reopened and revised reconsidered determination, the CMS hearing officer found that Petitioner added GO to its enrollment file in November 2016 as a 49 percent owner,

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officer, director, and W-2 managing employee and that GO remained on file as management personnel through the date the IG excluded GO, December 20, 2017.  CMS Ex. 3 at 5-6.  CMS asserts it has made a prima facie showing of a basis for revocation of Petitioner's Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(2), based on the information in Petitioner's Medicare enrollment record as last updated by the November 2016 CMS-855A.  CMS Br. at 4-5.  There is no question that Petitioner's Medicare enrollment record listed GO as an owner, officer, director, and managing employee of Petitioner's business when he was excluded by the IG on December 20, 2017.  However, it is important to note that 42 C.F.R. § 424.535(a)(2) grants CMS authority to revoke if a provider has an owner, managing employee, or other personnel listed who are excluded and does not grant authority to revoke simply because a provider's enrollment record inaccurately reflects that an excluded person is an owner or in one of the specified positions.  CMS argues that Petitioner provided no evidence that GO was not an owner or otherwise associated with Petitioner at the time of his exclusion and that the "few references" to GO's status in Petitioner's pleadings and Ms. Boyo's testimony are "vague and do not provide corroborating detail sufficient to establish compliance with 42 C.F.R. § 424.535(a)(2)."  CMS Br. at 4-5.

To the extent the CMS evidence alone may be considered sufficient to establish a prima facie basis for revocation pursuant to 42 C.F.R. § 424.535(a)(2), I conclude that Petitioner has rebutted the prima facie case by a preponderance of the evidence.  Whether GO was a part owner, manager, director, or managing employee when he was excluded by the IG is a question of fact.  I conclude, based on the whole record, that the preponderance of the evidence shows GO was not an owner, managing employee, authorized or delegated official, medical director, supervising physician, or other health care personnel of Petitioner subject to 42 C.F.R. § 424.535(a)(2) at the time of his exclusion by the IG on December 20, 2017.  In fact, the preponderance of the evidence shows that GO was removed from any position with Petitioner not later than the filing of the February 2017 CMS-855A.

Ms. Boyo testified credibly that she initially added GO by filing the November 2016 CMS-855A, but then removed him from the business completely and so notified the MAC and CMS by filing the February 2017 CMS-855A.  Ms. Boyo testified that by early February 2017 GO was not involved with Petitioner.  Tr. 45.  Ms. Boyo's testimony is supported by the February 2017 CMS-855A and the Texas Tax Report (CMS Ex. 1 at 63, 65).  Ms. Boyo testified credibly that it was through a mistake or miscommunication with a MAC representative that the February 2017 CMS-855A was withdrawn, causing Petitioner's enrollment information to be inaccurate.  Tr. 50.  Ms. Boyo's testimony was unrebutted and supported by the evidence of record and I find that her testimony was credible.

CMS argues that the Texas Tax Report (CMS Ex. 1 at 63) does not include information regarding persons who are considered a W-2 managing employee.  CMS Ex. 3 at 5; CMS

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Br. at 2.  I note that 42 C.F.R. § 424.535(a)(2) also does not refer to a "W-2 managing employee" but, rather, refers to a "managing employee."  The regulation does not distinguish between one who might be employed making them a W-2 managing employee as opposed to a contract managing employee.  The regulations define "managing employee" as a general manager, business manager, administrator, director, or other individual that exercises operational or managerial control over, or who directly or indirectly conducts, the day-to-day operation of the provider or supplier, either under contract or through some other arrangement, whether or not the individual is a W-2 employee of the provider or supplier.  42 C.F.R. § 424.502.  The distinction in Medicare policy is between a "contracted employee" verses a "W-2 employee," and a W-2 managing employee is no less a manager than a contract manager.  W-2 and contract employment define the employment relationship not the job responsibility.  CMS Pub. 100-8, Medicare Program Integrity Manual, § 15.5.6 (rev. 765, eff. Jan. 1, 2018) (referring to "a W-2 employee (as opposed to a contracted employee)").  I conclude that the CMS argument challenging the weight to accord to the Texas Tax Report as corroboration of Ms. Boyo's testimony is without merit.  The fact is the Texas Tax Report does not list GO as a manager for Petitioner and corroborates Ms. Boyo's testimony.

A preponderance of the evidence shows that Petitioner in fact removed GO by February 2017, months before GO was excluded in December 2017.  Accordingly, there is no basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(2).  The fact that Medicare records reflected GO was associated with Petitioner in some ways on December 20, 2017, does not establish a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(2).

c.  Analysis related to 42 C.F.R. § 424.535(a)(1)

In the reopened and revised reconsidered determination, the CMS hearing officer also decided to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R § 424.535(a)(1) for non-compliance with the reporting requirements of 42 C.F.R § 424.516(e).  The hearing officer determined that Petitioner failed to report within 30 days that GO was no longer an owner of Petitioner and within 90 days that GO was excluded from Medicare.  The hearing officer recognized that Petitioner had filed the February 2017 CMS-855A but stated that it was withdrawn and not processed to completion.  CMS Ex. 3 at 1, 5-6.

Before considering whether Petitioner failed to meet any reporting requirements, it is appropriate to consider an error by CMS that invalidates the hearing officer's determination to revoke pursuant to 42 C.F.R. § 424.535(a)(1).  The regulation provides, in pertinent part, that CMS may revoke a currently enrolled provider's Medicare billing privileges and provider agreement if the provider is determined not to be in compliance with enrollment requirements and the provider "has not submitted a plan of corrective

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action" as provided for in 42 C.F.R. pt. 488.  The Board has recognized that the regulation requires that CMS give a provider or supplier an opportunity to correct noncompliance with program requirements before revocation becomes final.  Conchita Jackson, MD, DAB No. 2495 at 6 (2013); Main Street Pharmacy, LLC, DAB No. 2349 at 6 n.4 (2010).  The reopened and revised reconsidered determination did not inform Petitioner of a right to submit a plan of corrective action to return to compliance with Medicare enrollment requirements as required by 42 C.F.R. § 424.535(a)(1).  CMS Ex. 3 at 1, 5-6.  Accordingly, revocation pursuant to 42 C.F.R. § 424.535(a)(1) is not authorized.

Further, reporting requirements for providers and suppliers are established by 42 C.F.R. § 424.516(b) through (e).  The reporting requirements for providers, other than those provider and supplier types for whom specific reporting requirements are established by 42 C.F.R. § 424.516(b), (c), and (d), are established by 42 C.F.R. § 424.516(e).  A provider must report to CMS the following information within the specified periods that run from the date of the reportable events:

(1)  Within 30 days for a change of ownership or control, including changes in authorized official(s) or delegated official(s);

(2)  All other changes to enrollment must be reported within 90 days.

42 C.F.R § 424.516(e).

The hearing officer determined that Petitioner failed to report the IG's exclusion of GO within 90 days of December 20, 2017, the date GO was excluded by the IG.  CMS Ex. 3 at 6.  CMS argues Petitioner presented no evidence to prove that GO was not associated with Petitioner at the time of his exclusion.  CMS Br. at 4.  However, as I have found the preponderance of the evidence, including Ms. Boyo's credible testimony, the February 2017 CMS-855A, and other evidence, shows that GO no longer had an ownership interest in Petitioner, he was not a manager or employee and had no relationship to Petitioner on December 20, 2017.  Accordingly, there was no requirement for Petitioner to report to the MAC or CMS the IG exclusion of GO as a final adverse action or for any other reason.

Accordingly, there is no basis for CMS to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) based on Petitioner's failure to comply with 42 C.F.R. § 424.516(e)(2).

The record also shows that Petitioner did report its change in ownership within 30 days as required by 42 C.F.R. § 424.516(e)(1).  Ms. Boyo's testimony, supported by the other evidence of record, shows that Petitioner's relationship with GO ended in February 2017.

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There is no dispute that Ms. Boyo filed the February 2017 CMS-855A to report to the MAC and CMS that GO was no longer an owner, manager, or employee of Petitioner and that Ms. Boyo was the sole owner and manager.  There is no dispute that the changes in ownership and the relationship between Petitioner and GO were all reported to the MAC and CMS by the February 2017 CMS-855A within 30 days as required by 42 C.F.R. § 424.516(e)(1).  CMS does not present evidence to rebut the testimony of Ms. Boyo or that tends to show that the information in the February 2017 CMS-855A was incorrect.  CMS does not dispute that the MAC received the February 2017 CMS-855A.  Accordingly, Petitioner's timely submission and CMS's receipt of the February 2017 CMS-855A, which reported the change in ownership, met the reporting requirement of 42 C.F.R. § 424.516(e)(1).

The gist of the CMS argument is that the mistaken withdrawal of the February 2017 CMS-855A rendered the report by Petitioner a nullity.  CMS reasons that, as a result of the withdrawal, the MAC did not complete the processing of the application or validate it for accuracy as required by 42 C.F.R. § 424.510.  CMS Br. at 5-6.  CMS offered no record of the conversation between the MAC representative and Ms. Boyo – the conversation that triggered the withdrawal, or what the MAC construed to be the withdrawal, of the February 2017 CMS-855A rather than the November 2016 CMS-855A.  Ms. Boyo testified credibly about her conversation with the MAC representative and that it was her intent to withdraw the November 2016 CMS-855A, not the February 2017 CMS-855A.  Tr. 46-50.  Although recognizing that Petitioner's withdrawal may have been a mistake, CMS nevertheless argues that it "is not in the position to interpret the motivations or intentions behind a request to withdraw."  CMS Br. at 6-7.  Finally, CMS argues that, even if the mistake was caused by a MAC representative's erroneous instructions, Petitioner is seeking equitable relief, which an ALJ does not have the authority to provide, and that estoppel will not lie against the government.  CMS Br. at 6-7.

CMS's arguments are unpersuasive.  In its revised reconsidered determination, which is the only determination subject to my review, CMS cited Petitioner's failure to comply with 42 C.F.R § 424.516(e)(1), which states that providers "must report to CMS . . . a change of ownership or control."  CMS Ex. 3 at 5-6.  The plain text of the regulation speaks of reporting to CMS only, not of processing or validating an application, as CMS argues.  The fact is that Petitioner met its reporting requirement under 42 C.F.R. § 424.516(e)(1) by filing the February 2017 CMS-855A.  CMS cites no authority for the proposition that the mistaken withdrawal, whether the mistake was Petitioner's or the MAC's, rendered the notice provided by the February 2017 CMS-855A a nullity.  Because Petitioner completed its reporting when the MAC received the February 2017 CMS-855A, it is immaterial for purposes of evaluating Petitioner's compliance with 42 C.F.R. § 424.516(e)(1) that Petitioner later mistakenly withdrew that application.  Because Petitioner had already satisfied its reporting requirement before the withdrawal took place, any arguments regarding the withdrawal are irrelevant.  It is well-settled that I

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do not have the authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  Furthermore, 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).  But Petitioner requests neither equitable relief nor estoppel of the government.  Rather, the issue of whether Petitioner properly reported its change in ownership within meaning of 42 C.F.R. § 424.516(e)(1) is an issue of law that must be resolved based on what the regulation requires.  Based on the undisputed evidence that Petitioner submitted and CMS received the February 2017 CMS-855A, I conclude that Petitioner met the requirement of 42 C.F.R. § 424.516(e)(1) to report to the MAC and CMS.

I conclude that CMS has no basis to revoke Petitioner's Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(1) for failing to comply with 42 C.F.R. § 424.516(e)(1).

III.  Conclusion

For the foregoing reasons, Petitioner removed GO and timely reported that change in ownership to CMS, all before GO was excluded by the IG.  I conclude that there was no basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) or (2).

1. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.) that was in effect at the time of the initial determination, unless otherwise stated.
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2. GO's full name is not disclosed for confidentiality because he is not a party to these proceedings.
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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. In the case of Medicare-eligible beneficiaries not enrolled in Medicare Part B, home health services are paid under Part A subject to the limitations specified in section 1812(a)(3) of the Act.  Home health services are also covered under Medicare Part B for those enrolled.  Act § 1832(a)(2)(A).  Thus, home health agencies, which are defined as providers by section 1861(u) of the Act, may be reimbursed under Part A or Part B depending upon the facts of the particular case.
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4. "Credible evidence" is evidence that is worthy of belief.  Black's Law Dictionary 596 (8th ed. 2004).  The "weight of evidence" is the persuasiveness of some evidence compared to other evidence.  Id. at 16
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5. The transcript shows Ms. Boyo testified she removed GO at "the beginning of February of 2007."  However, based on all the evidence of record, it is clear that the year was 2017 and not 2007.  Tr. 45; CMS Ex. 1 at 44, 46-47, 52; P. Ex. 1.
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