Angela Johnson, DAB CR5774 (2020)

DECISION

The Centers for Medicare & Medicaid Services (CMS), acting through its Medicare administrative contractor, Palmetto GBA (Palmetto), denied Angela Johnson’s (Petitioner’s) Medicare enrollment application pursuant to 42 C.F.R. § 424.530(a)(1).  Palmetto denied Petitioner’s enrollment application because Petitioner, a licensed cosmetologist and phlebotomist, does not qualify to enroll in Medicare as a provider or as a supplier of medical and other health services.  Petitioner challenges the enrollment denial.  For the reasons set forth below, I affirm that CMS had a legal basis to deny Petitioner’s application for enrollment as a supplier in the Medicare program.

I.  Background and Procedural History

Petitioner describes herself as a “Home Health Professional . . . caring for disabled persons and elderly . . . .”  See CMS Exhibit (Ex.) 1 at 29.  In February 2020, Petitioner mailed Palmetto a completed Form CMS‑855I, the Medicare Enrollment Application for Physicians and Non-Physician Practitioners (enrollment application), to request enrollment as a Medicare supplier.  Id. at 1, 36.  Petitioner checked a number of boxes under the heading “Physician Specialty,” although she does not claim to be a physician.  Id. at 8.  Petitioner added the following note:  “Home Health Services include help [with]

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all these, legal issues, occupational therapy, sanitation (design services billed separately) [illegible] nutritional services for home health to heart patient.”  Id.  Petitioner also checked boxes to indicate that she is a non-physician practitioner with the following specialties:  occupational therapist in private practice (Petitioner added “unlicensed” next to this check box); registered dietician or nutrition professional (Petitioner underlined “Nutrition Professional”); and undefined non-physician practitioner specialty (Petitioner added “licensed cosmetologist (for proof of professional skilled sanitation home health [services])”.  Id. at 9.  Petitioner attached to her application a copy of her current Tennessee Cosmetology License.  Id. at 31.

By letter dated March 5, 2020 (notice), Palmetto denied Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(1).  CMS Ex. 2.  Palmetto explained that, as a cosmetologist, Petitioner does not qualify as a provider of services or a supplier of medical and health services.  Id. at 1.  The notice informed Petitioner of her right to request reconsideration.  Id. at 1-2.  In a letter dated March 12, 2020, Petitioner requested reconsideration.  CMS Ex. 3.  In her reconsideration request, Petitioner argued that her cosmetology license qualifies her to provide home health care to a disabled Medicare patient.  Id. at 1.  She further represented that she is licensed and certified in venipuncture and phlebotomy.  Id.  By letter dated May 22, 2020, Palmetto issued a reconsidered determination finding the enrollment denial proper pursuant to 42 C.F.R. § 424.530(a)(1).  CMS Ex. 4.

Petitioner timely requested a hearing.  See Docket Entry #1 in the Departmental Appeals Board (DAB) Electronic Filing System (E-File).  The case was assigned to me and, on July 27, 2020, my office acknowledged Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  Pursuant to the Prehearing Order, CMS submitted a Motion for Summary Judgment (CMS Br.) and four exhibits (CMS Exs. 1‑4).  Petitioner filed a Response to CMS’s Motion for Summary Judgment (P. Br.).  Petitioner additionally filed a number of letters and emails that are not labeled as exhibits.  See, e.g., Docket Entries #9, 9a, 10, 11 in DAB E-File.  On October 27, 2020, I issued an order closing the record.  Docket Entry #15 in DAB E-File.  On December 2, 2020, in disregard of my October 27 Order, Petitioner submitted an email to my office containing attachments that she requested be made a part of the record.  See Docket Entries #16, 16a, and 16b in DAB E-File.  I do not consider these submissions because they were offered after the record was closed.  I have considered the remainder of Petitioner’s submissions in reaching this decision.

Petitioner did not object to the exhibits offered by CMS.  Therefore, in the absence of objection, I admit CMS Exs. 1‑4 into the record.  My Prehearing Order advised the parties that they must submit written direct testimony for any proposed witness and that an in-person hearing would only be necessary if the opposing party requested an opportunity to cross-examine a witness.  Prehearing Order ¶¶ 8-10; Civil Remedies

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Division Procedures (CRDP) §§ 16(b), 19(b); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross‑examine those witnesses).  Neither party submitted the written direct testimony of any witness.  Consequently, an in‑person hearing is not required, and I issue this decision based on the written record, without regard to whether the standards for summary judgment are met.  Prehearing Order ¶¶ 8-11; CRDP § 19(d).  I deny CMS’s motion for summary judgment as moot.

II.  Issue

The issue in this case is whether CMS had a legal basis to deny Petitioner’s application for enrollment as a supplier in the Medicare program.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2); see also Social Security Act (Act), § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

IV.  Discussion

A.  Statutory and Regulatory Background

The Act authorizes the Secretary of Health and Human Services (Secretary) to establish regulations for enrolling providers and suppliers in the Medicare program.  Act, § 1866(j)(1)(A) (42 U.S.C. § 1395cc(j)(1)(A)).  Petitioner is a prospective supplier of health care services for purposes of the Medicare program.  See Act, § 1861(d) (42 U.S.C. § 1395x(d)); 42 C.F.R. § 400.202 (definition of supplier).  In order to enroll in the Medicare program and receive billing privileges, suppliers must meet certain criteria.  42 C.F.R §§ 424.505, 424.510, 424.516.  The regulations define enrollment as “the process that Medicare uses to establish eligibility to submit claims for Medicare‑covered items and services . . . .”  42 C.F.R. § 424.502.  As applicable here, section 424.516(a)(2) provides that a supplier must be in “[c]ompliance with Federal and State licensure, certification, and regulatory requirements, as required, based on the type of services or supplies the . . . supplier . . . will furnish and bill Medicare.”

Pursuant to 42 C.F.R. § 424.530(a)(1), CMS may deny a prospective supplier’s enrollment application if CMS determines that the supplier fails to comply with any enrollment requirements.  Specifically, the regulation authorizes denial of enrollment under the following circumstances:

The provider or supplier is determined to not be in compliance with the enrollment requirements in this subpart P

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or in the enrollment application applicable for its provider or supplier type, and has not submitted a plan of corrective action as outlined in part 488 of this chapter.

42 C.F.R. § 424.530(a)(1).

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

1.  The services of an independent home health caregiver do not qualify as home health services under Medicare Part A or as medical and other health services under Medicare Part B.

2.  An individual may only enroll in Medicare to supply covered medical and health services.

I have read Petitioner’s submissions and considered her arguments.  Petitioner’s position that she should be enrolled as a Medicare supplier reflects a basic misunderstanding of the Medicare program.  Medicare is a statutory health benefit program for elderly and disabled individuals (beneficiaries).  This means that, even though an item or service may be helpful to a beneficiary, if that item or service does not fall within the definition of a Medicare benefit, that item or service is not covered by Medicare.  The Medicare statute also defines the term “supplier” as an individual or entity that “furnishes items or services under [Medicare].”  Act, § 1861(d) (42 U.S.C. § 1395x(d)); see also US Ultrasound, DAB No. 2302 at 5 (2010).  Thus, if Petitioner did not or does not furnish items or services that are covered by Medicare, she does not meet the statutory definition of a Medicare supplier.  See US Ultrasound, DAB No. 2302 at 5-6.

In the present case, Petitioner represents that she furnishes home health services to two Medicare beneficiaries, B.J. and D.J.1   See CMS Ex. 1 at 26; see also Docket Entry #4 in DAB E-File.  However, Petitioner failed to present any evidence that she furnishes or has furnished home health services that are covered by Medicare.  Home health benefits are covered under Medicare Part A.  To be payable under the Medicare Part A home health benefit, all of the following conditions must be satisfied:

• The beneficiary must be under the care of a physician who must certify (and periodically recertify) that home health services are required;
• the beneficiary must be confined to his or her home;
• the beneficiary must need a skilled service such as intermittent skilled nursing care or physical or speech therapy; and

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• a physician must establish and periodically review a plan for furnishing such services to the beneficiary.

Act, §§ 1814(a)(2)(C); 1861(m).  Further, payment for home health services under Medicare Part A is made to home health agencies (HHAs), which are providers of services.  Act, §§ 1835(a); 1861(o), (u).  An individual, such as Petitioner, does not qualify to enroll in Medicare as an HHA, as Petitioner appears to acknowledge.  See Docket Entry #12 in DAB E-File at 4.  Nor does Petitioner contend that she is employed by a Medicare-participating HHA.2

In addition, health care items or services that do not qualify as home health benefits under Medicare Part A are not eligible for Medicare coverage and payment unless they meet the definition of medical and other health services under Medicare Part B.  See Act, § 1861(s); see also 42 C.F.R. Part 410.  The majority of medical and other health services covered by Medicare Part B consist of physician services and medical devices and supplies.  Id.  The services of certain licensed non‑physician practitioners qualify for coverage under Medicare Part B, but those practitioners are specified in the statute and regulations.  See, e.g., 42 C.F.R. § 410.12(a)(2) (Part B services must be furnished by facilities or entities specified in the regulations); 42 C.F.R. § 424.5(a)(2) (services must be furnished by a qualified supplier).  The statute and regulations recognize the following licensed non‑physician practitioners, among others: 

• physical and occupational therapists (Act, § 1861(s)(2)(D); see also Act, § 1861(g), (p); 42 C.F.R. §§ 410.59, 410.60);
• physician assistants (Act, § 1861(s)(2)(K)(i); 42 C.F.R. § 410.74);
• nurse practitioners and clinical nurse specialists (Act, § 1861(s)(2)(K)(ii); 42 C.F.R. §§ 410.75, 410.76);
• clinical psychologists (Act, § 1861(s)(2)(M); 42 C.F.R. § 410.71);
• clinical social workers (Act, § 1861(s)(2)(N); 42 C.F.R. § 410.73);
• certified registered nurse anesthetists (Act, § 1861(s)(11); 42 C.F.R. § 410.69); and
• speech-language pathologists (Act, § 1861(ll); 42 C.F.R. § 410.62).

In summary, Medicare Part B does not cover the services of “freelance” home health providers because they are not among the licensed health care practitioners specified in the statute and regulations.  This is so even if Petitioner is licensed as a cosmetologist or phlebotomist.  Enrollment as a Medicare supplier is only available to practitioners and entities that are eligible to submit claims for Medicare-covered items and services.  See 42 C.F.R. § 424.502 (definition of Enroll/Enrollment).  The record is devoid of evidence

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that Petitioner furnished home health services covered under Medicare Part A to B.J., D.J., or to any other Medicare beneficiary.  Nor has Petitioner established that she is licensed to furnish any service covered by Medicare Part B.  Because Petitioner did not and could not furnish home health services covered by Medicare Part A or medical and other health services covered by Medicare Part B to an eligible beneficiary, there is no basis to enroll her as a Medicare supplier.

3.  CMS had a legal basis to deny Petitioner’s Medicare enrollment application under 42 C.F.R. § 424.530(a)(1) because Petitioner does not qualify as a non-physician practitioner eligible for enrollment.

CMS may deny a supplier’s enrollment in the Medicare program if the “supplier is determined to not be in compliance with the enrollment requirements in this subpart P or in the enrollment application applicable for its . . . supplier type, and has not submitted a plan of corrective action as outlined in part 488 of this chapter.”  42 C.F.R. § 424.530(a)(1).  To qualify for Medicare enrollment, suppliers must provide documentation concerning “[a]ll applicable Federal and State licenses” and “[d]ocumentation associated with regulatory and statutory requirements necessary to establish a . . . supplier’s eligibility to furnish Medicare covered items or services to beneficiaries in the Medicare program.”  42 C.F.R. § 424.510(d)(2)(iii).  Suppliers must be in compliance with Title XVIII of the Act and applicable Medicare regulations as well as federal and state licensure, certification, and regulatory requirements, based on the type of services or supplies the supplier will furnish and bill Medicare.  42 C.F.R. § 424.516(a)(1)-(2).

Based on these authorities, CMS may deny a prospective supplier enrollment if Medicare Part B does not authorize payment for the supplier’s services.  Erin Wells, IBCLC, DAB CR4734 at 4 (2016) (citing Peter McCambridge, C.F.A., DAB CR1961 (2009), aff’d, DAB No. 2290 (2009)).  As I have explained above, Petitioner is not among the specified licensed non-physician practitioners who are eligible to furnish items or services covered by Medicare Part B.  Therefore, she has not furnished the documentation “necessary to establish [her] eligibility to furnish Medicare covered items or services to beneficiaries in the Medicare program.”  42 C.F.R. § 424.510(d)(2)(iii).  Accordingly, CMS and its contractor had a legal basis to deny Petitioner’s application to enroll as a Medicare supplier.

4.  I lack authority to grant Petitioner’s additional requests for relief.

In addition to her request to be enrolled as a Medicare supplier, Petitioner also requests “deposit of . . . funds that are past due into [her] personal [account],” and to have certain Palmetto employees removed from their positions based on what Petitioner characterizes as unethical actions.  See, e.g., Docket Entry #10 in DAB E-File at 3.

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Regarding Petitioner’s request for payment, I do not have jurisdiction to consider whether Medicare claims are covered and payable.  Claims appeals are heard by administrative law judges of the Office of Medicare Hearings and Appeals.  See 42 C.F.R. Part 405, Subpart I.

Regarding Petitioner’s complaints about the actions of Palmetto employees, based on the record before me, I see no evidence of improper actions by such employees.  However, even if some impropriety occurred, that would be a matter between CMS and its contractor.  The only matter properly before me is whether CMS had a lawful basis to deny Petitioner’s enrollment application.  42 C.F.R. § 498.3(b)(17).  I therefore lack jurisdiction over Petitioner’s additional requests for relief.

V.  Conclusion

For the foregoing reasons, I affirm CMS’s determination to deny Petitioner’s application for Medicare enrollment and billing privileges.

1. I refer to the beneficiaries by their initials to protect their privacy.
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2. If she were providing services to Medicare beneficiaries as an employee of a HHA, Petitioner would be paid by the HHA and not by Medicare directly.
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