Wheelchair City Inc., DAB CR6374 (2023)

DECISION

Wheelchair City Inc. (Wheelchair City or Petitioner) appeals the reconsidered determination revoking its Medicare enrollment and billing privileges and placement on the Centers for Medicare & Medicaid Services (CMS) preclusion list.  For the reasons explained below, I find that there was a legitimate basis for CMS to revoke Petitioner’s Medicare enrollment and billing privileges, based on 42 C.F.R. § 424.535(a)(8)(i) (Abuse of billing privileges), and for inclusion on the CMS preclusion list, based on 42 C.F.R. §§ 422.2 and 422.222.

I.    Background and Procedural History

Petitioner was enrolled in the Medicare program as a supplier of Durable Medical Equipment/Orthotics and Supplies (DMEPOS).  CMS Exhibit (Ex.) 2.  In an initial determination dated September 24, 2021, Wheelchair City was notified that its Medicare privileges were being revoked, pursuant to 42 C.F.R. § 424.535(a)(8)(i), for abuse of billing privileges.  CMS Ex. 3.  Specifically, Petitioner was notified that it had submitted claims for services that were allegedly provided to multiple Medicare beneficiaries who were deceased on the purported dates of service.  Id. at 1.  A 10‑year reenrollment bar

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was also imposed.  CMS Ex. 3 at 1, 4.  Petitioner was also notified at that time that because of the revocation, it was being added to the CMS preclusion list.  Id. at 2.  Petitioner filed a request for reconsideration on October 12, 2021, asserting that its billing was outsourced and because of complications from the COVID-19 pandemic and resulting staff losses, the necessary “stop billing” messages when a Medicare beneficiary died were not sent in a timely manner.  CMS Ex. 4.  Petitioner also presented specific arguments with respect to several individual claim denials.  Id. at 2-3.  However, in a notice dated January 12, 2022, CMS upheld the revocation of Petitioner’s Medicare enrollment and billing privileges under the provisions of 42 C.F.R. § 424.535(a)(8)(i).  CMS Ex. 2.  CMS also upheld the determination to include Petitioner on the preclusion list and the 10-year reenrollment bar.¹  Id.

Petitioner timely filed a request for hearing (RFH) on March 12, 2022.  The case was assigned to Judge Leslie Weyn, who issued a Standing Prehearing Order (Order) on March 14, 2022.²  In its prehearing exchange, CMS filed the Centers for Medicare & Medicaid Services’ Motion for Summary Judgment and Incorporated Memorandum (CMS PH Br.) and eight proposed exhibits.  Petitioner filed the Wheelchair City Inc. Pre-Hearing Brief (P. PH Br.) and 11 proposed exhibits.  Neither party submitted a proposed witness.  There were no objections to either party’s proposed exhibits.  As a result, CMS Exhibits (Exs.) 1-8 and Petitioner’s (P.) Exs. 1-11 are admitted into the record.

According to the Order, an in-person hearing to cross-examine witnesses is necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross examine.  Order at 6 ¶ 10.  Neither party has offered the written direct testimony of any witness as part of its prehearing exchange.  As a result, an in-person hearing is not necessary, and I issue this decision based on the written record.³  Order at 7 ¶ 12.

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II.    Issues

1. Whether CMS had a legitimate basis for revoking Petitioner’s enrollment and billing privileges, pursuant to the provisions of 42 C.F.R. § 424.535(a)(8)(i); and
2. Whether CMS had a legitimate basis for including Petitioner on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 422.222. 

III.    Jurisdiction

I have jurisdiction to decide this case.  42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 498.3(b)(17)(i), 498.5(l)(2).

IV.    Findings of Fact, Conclusions of Law, and Analysis⁴

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to establish regulations for enrolling providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  Suppliers must enroll in the Medicare program and receive a billing number in order to obtain payment for services rendered to Medicare beneficiaries.  42 C.F.R. § 424.505.  The regulations delegate to CMS the authority to revoke the enrollment and billing privileges of suppliers.  42 C.F.R. § 424.535.  CMS or a Medicare contractor may revoke a supplier’s Medicare enrollment and billing privileges for a number of specified reasons, including, as relevant here, abuse of billing privileges. 42 C.F.R. § 424.535(a)(8).  After CMS revokes a supplier’s enrollment and billing privileges, CMS bars the supplier from reenrolling in the Medicare program for a minimum of one year but not greater than 10 years.  42 C.F.R. § 424.535(c)(1)(i).  CMS may also include a supplier on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 422.222.

A.  The evidence establishes that there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(8).

42 C.F.R. § 424.535(a) provides that CMS may revoke a currently enrolled supplier’s Medicare enrollment and any corresponding supplier agreement for reasons, which include, as relevant herein, abuse of billing privileges.  Under the provisions of 42 C.F.R. § 424.535(a)(8)(i)(A), abuse of billing privileges includes instances in which the supplier submits a claim or claims for services that could not have been furnished to a specific individual on the dates of services, including when the beneficiary is deceased.

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The facts in this matter are not in dispute.  Petitioner submitted 43 claims for 10 Medicare beneficiaries, as detailed below:

1.  Beneficiary A.G. died on February 22, 2020.  CMS Ex. 1 at 1; CMS Ex. 6 at 1.  Petitioner submitted claim number 120064833632000 on March 4, 2020 for services allegedly provided to A.G. on March 3, 2020.  CMS Ex. 1 at 1; CMS Ex. 5 at 1.   Wheelchair City was notified of A.G.’s death in the remittance notice from March 2020, which was denied with code CO-13, the code used when the claim is denied because the beneficiary for whom it was billed was deceased.  CMS Ex. 2 at 5.  It went on to submit claims numbered 120094857965000 on April 3, 2020 for services allegedly provided on April 3, 2020; 120125860506000 on May 4, 2020 for services allegedly provided on May 3, 2020; 120155836445000 on June 3, 2020 for services allegedly provided on June 3, 2020; 120188825871000 on July 6, 2020 for services allegedly provided on July 3, 2020; 120218835124000 on August 5, 2020 for services allegedly provided on August 3, 2020; and 120247834041000 on September 3, 2020 for services allegedly provided on September 3, 2020.  CMS Ex. 1 at 1; CMS Ex. 5 at 1-4.

2.  Beneficiary B.G. died on April 25, 2020.  CMS Ex. 1 at 2; CMS Ex. 6 at 5.  Petitioner submitted claim number 120134836710000 on May 13, 2020 for services allegedly provided to B.G. on May 12, 2020.  CMS Ex. 1 at 2; CMS Ex. 5 at 20.  Wheelchair City was notified of B.G.’s death in the remittance notice from May 2020, which was denied with code CO-13.  CMS Ex. 2 at 5.  It went on to submit claims numbered 120164825735000 on June 12, 2020 for services allegedly provided on June 12, 2020; 120195859229000 on July 13, 2020 for services allegedly provided on July 12, 2020; 120225841423000 on August 12, 2020 for services allegedly provided on August 12, 2020; and 120258856495000 on September 14, 2020 for services allegedly provided on September 12, 2020.   CMS Ex. 1 at 2; CMS Ex. 5 at 20-22.

3.  Beneficiary E.A. died on March 11, 2020.  CMS Ex. 1 at 1; CMS Ex. 6 at 1.  Petitioner filed claim number 120097854295000 on April 6, 2020 for services allegedly provided to E.A. on April 4, 2020.  CMS Ex. 1 at 1; CMS Ex. 5 at 4.  Wheelchair City was notified of E.A.’s death in the remittance notice from April 2020 because the claim was denied with code CO-13.  CMS Ex. 2 at 6.  Petitioner went on to submit claims numbered 120125860453000 on May 4, 2020 for services allegedly provided on May 4, 2020; 120157833925000 on June 5, 2020 2020 for services allegedly provided on June 4, 2020; 120188881865000 on July 6, 2020 for services allegedly provided on July 4, 2020; 120218835087000 on August 5, 2020 for services allegedly provided on August 4, 2020; and 120248837529000 on September 4, 2020 for services allegedly provided on September 4, 2020.  CMS Ex. 1 at 1; CMS Ex. 5 at 4-7.

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4.  Beneficiary E.A. died on April 21, 2020.  CMS Ex. 1 at 1; CMS Ex. 6 at 3.  Petitioner submitted claim number 120148843871000 on May 27, 2020 for services allegedly provided to E.A. on May 26, 2020.  CMS Ex. 1 at 1; CMS Ex. 5 at 11.  Wheelchair City was notified of E.A.’s death in the remittance notice from May 2020 because the claim was denied with code CO-13.  CMS Ex. 2 at 6.  Petitioner went on to submit claims numbered 120178832070000 on June 26, 2020 for services allegedly provided on June 26, 2020; and 120209861699000 on July 27, 2020 for services allegedly provided on July 26, 2020.  CMS Ex. 1 at 1-2; CMS Ex. 5 at 11-12.

5.  Beneficiary G.D. died on February 20, 2020.  CMS Ex. 1 at 1; CMS Ex. 6 at 2.  Petitioner submitted claim number 120090864928000 on March 30, 2020 for services allegedly provided to G.D. on March 30, 2020.  CMS Ex. 1 at 1; CMS Ex. 5 at 8.  Wheelchair City was notified of G.D.’s death in the remittance notice from March 2020 because the claim was denied with code CO-13.  CMS Ex. 2 at 6.  Petitioner went on to submit claims numbered 120122827276000 on May 1, 2020 for services allegedly provided on April 30, 2020; 120153850158000 on June 1, 2020 for services allegedly provided on May 30, 2020; 120183829276000 on July 1, 2020 for services allegedly provided on June 30, 2020; 120213834508000 on July 31, 2020 for services allegedly provided on July 30, 2020; and 120244857533000 on August 31, 2020 for services allegedly provided on August 30, 2020.  CMS Ex. 1 at 1; CMS Ex. 5 at 8-11.

6.  Beneficiary H.C. died on June 12, 2020.  CMS Ex. 1 at 1; CMS Ex. 6 at 2.  Petitioner submitted claim number 120209861719000 on July 27, 2020 for services allegedly provided to H.C. on July 27, 2020.  CMS Ex. 1 at 1; CMS Ex. 5 at 7.  Wheelchair City was notified of H.C.’s death in the remittance notice from July 2020 because the claim was denied with code CO-13.  CMS Ex. 2 at 6.  Petitioner went on to submit claim number 120241829898000 on August 28, 2020 for services allegedly provided on August 27, 2020.  CMS Ex. 1 at 1; CMS Ex. 5 at 7-8.

7.  Beneficiary J.S. died on December 22, 2019.  CMS Ex. 1 at 2; CMS Ex. 6 at 4.  Petitioner submitted claim number 120015832816000 on January 15, 2020 for services allegedly provided to J.S. on January 15, 2020.  CMS Ex. 1 at 2; CMS Ex. 5 at 14.  Wheelchair City was notified of J.S.’s death in the remittance notice from January 2020 because the claim was denied with code CO-13.  CMS Ex. 2 at 6.  Petitioner went on to file claims numbered 120048863840000 on February 15, 2020 for services allegedly provided on February 15, 2020; and 120076858879000 on March 15, 2020 for services allegedly provided on March 15, 2020.  CMS Ex. 1 at 2; CMS Ex. 5 at 14-15.

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8.  Beneficiary K.N. died on March 25, 2020.  CMS Ex. 1 at 2; CMS Ex. 6 at 4.  Petitioner submitted claim number 120115834151000 on April 24, 2020 for services allegedly provided to K.N. on April 24, 2020.  CMS Ex. 1 at 2; CMS Ex. 5 at 16.  Wheelchair City was notified of K.N.’s death in the remittance notice from April 2020 because the claim was denied with code CO-13.  CMS Ex. 2 at 7.  Petitioner went on to file claims numbered 120148843937000 on May 27, 2020 for services allegedly provided on May 24, 2020; 120176835919000 on June 24, 2020 for services allegedly provided on June 24, 2020; and 120206837532000 on July 24, 2020 for services allegedly provided on July 24, 2020.  CMS Ex. 1 at 2; CMS Ex. 5 at 16-17.

9.  Beneficiary N.L. died on April 25, 2020.  CMS Ex. 1 at 2; CMS Ex. 6 at 5.  Petitioner submitted claim number 120148843920000 on May 27, 2020 for services allegedly provided to N.L. on May 26, 2020.  CMS Ex. 1 at 2; CMS Ex. 5 at 18.  Wheelchair City was notified of N.L.’s death in the remittance notice from May 2020 because the claim was denied with code CO-13.  CMS Ex. 2 at 7.  Petitioner went on to file claims numbered 120178832087000 on June 26, 2020 for services allegedly provided on June 26, 2020; 120209861756000 on July 27, 2020 for services allegedly provided on July 26, 2020; and 120239842154000 on August 26, 2020 for services allegedly provided on August 26, 2020.  CMS Ex. 1 at 2; CMS Ex. 5 at 18-19.

10.  Beneficiary R.S. died on December 19, 2019.  CMS Ex. 1 at 2; CMS Ex. 6 at 3.  Petitioner submitted claim number 120020861989000 on January 20, 2020 for services allegedly provided to R.S. on January 19, 2020.  CMS Ex. 1 at 2; CMS Ex. 5 at 13.  Wheelchair City was notified of R.S.’s death in the remittance notice from January 2020 because the claim was denied with code CO-13.  CMS Ex. 2 at 7.  Petitioner went on to file claims numbered 120050836255000 on February 19, 2020 for services allegedly provided on February 19, 2020; and 120080833756000 on March 20, 2020 for services allegedly provided on March 19, 2020.  CMS Ex. 1 at 2; CMS Ex. 5 at 13-14.

Petitioner does not deny the above facts, which document that Medicare was billed for services allegedly provided to these beneficiaries after their death.  Instead, it argues that all the cited beneficiaries received the durable medical equipment for which they were eligible at the time of delivery and it was because of the pandemic that the billing problems occurred.  P. PH Br. at 5.  It alleges that all equipment was on a 13-month rental agreement and the “primary issue arose when beneficiaries passed during the pandemic and billing was continued for the remaining months” of the contract.  Id.  Petitioner explained it had contracted with ASAP Medical Billing (ASAP) to process its claims for over 15 years.  CMS Ex. 4 at 2.  It noted that, in the past, when explanation of benefits (EOB’s) with a CO-13 (Date of Death) were received, its staff would fax ASAP to “stop billing,” but during the pandemic, it lost its long‑time office manager and three

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other employees and, as a result, the “stop billing” faxes were not sent in a timely manner.  Id.  It also asserted that the untimely “stop billing” faxes to ASAP were the result of “Executive Order NM-33-20, in which residents of California were ordered to stay at home.”  P. PH Br. at 5.

Petitioner provided a timeline of the claims submitted for the above beneficiaries, as follows:

WCI receives an order from the physician

WCI verifies eligibility

Beneficiary receives wheelchair

Claim was sent to ASAP to bill Medicare

Beneficiary deceased.  Due to the pandemic, WCI never received wheelchair back and there was no attempt to pick up wheelchair due to shortage in staff and COVID-19.

P. PH Br. at 5-10.

I have no reason to doubt the veracity of these statements from Petitioner regarding its procedures.  However, they provide no defense for the fact that Petitioner submitted ongoing claims to Medicare for 10 beneficiaries after having been notified that they had died.

Petitioner cites Executive Order N-33-20 (P. Ex. 11), dated March 19, 2020, and the coronavirus pandemic as “a notable circumstance that CMS failed to take into account when considering their decision of revocation.”  P. PH Br. at 4.  Presumably, this is an argument that I should consider this “notable circumstance” when deciding this case.  It is not immediately clear how the executive order would result in authorization to bill for services provided to deceased Medicare beneficiaries.⁵  Even assuming that an executive order from a state governor could stay federal regulations, a highly questionable position, the order itself contains exceptions to the “no travel” provisions for the industries involved in the health care supply chain, which, presumably, would include Petitioner.  P. Ex. 11 at 1-2.  Petitioner has provided no evidence that its employees were prevented from working in some capacity, even from home, as a result of this order.  In fact,

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Petitioner’s records indicate it continued to rent and deliver wheelchairs after this order was issued.  P. Ex. 9 at 2.  It reports that Beneficiary N.L. received and signed for a wheelchair on March 26, 2020 and the claim was then sent to ASAP to bill Medicare.  P. PH Br. at 9.  It appears then that Wheelchair City continued to do business, in spite of the executive order.

Wheelchair City then appears to justify the ongoing billing after the deaths of the beneficiaries on the inability to pick up the wheelchairs after the deaths because of the pandemic.  P. PH Br. at 5-10.  While of dubious relevance with respect to the issue of billing for equipment for dead beneficiaries, this argument also fails because if Petitioner could deliver wheelchairs after the executive order, there is no apparent reason why it could not pick up wheelchairs after the executive order.  Again, however, Petitioner has not presented any authority to support the apparent proposition that its alleged inability to pick up the wheelchairs justified ongoing bills submitted to Medicare on behalf of deceased Medicare beneficiaries.  Nor could there be any authority for such a proposition.  42 C.F.R. § 424.535(a)(8)(i)(A) provides no exceptions to allow billing for services to deceased beneficiaries under certain circumstances, such as those described by Wheelchair City.  The regulation is quite clear.  A supplier may not bill Medicare for services provided to beneficiaries who are deceased.  As a result, I find that Wheelchair City’s continued submission of claims for services after receiving actual notice of the beneficiaries’ deaths was abuse of its billing privileges.

Petitioner next argues that it has made “vast changes” to its billing system and protocols.  CMS Ex. 4 at 2.  I have no reason to doubt this statement.  However, a plan to reduce improper billing in the future does not preclude CMS from taking action over improper claims already submitted.  John P. McDonough III, Ph.D., Geriatric Psychological Specialists, and GPS II, LLC, DAB No. 2728 at 8 (2016).

Finally, Petitioner asserts that the billing errors were the result of “an oversight on our behalf due to shortage in staff” and it would never “intentionally bill for a deceased patient or try to defraud medicare.”  CMS Ex. 4 at 3.  While I have no reason to believe otherwise, the Departmental Appeals Board (Board) has repeatedly rejected the contention that a supplier who has submitted claims for “services that could not have been furnished to a specific individual on the date of service” under section 424.535(a)(8) must also be proven to have done so intentionally.  Patrick Brueggeman, D.P.M., DAB No. 2725 at 8-9 (2016).  The Board has noted that “the ‘operative language’ of the regulation ‘does not require that CMS demonstrate that Petitioner intended to defraud Medicare before it may revoke Petitioner’s billing privileges’” and instead concluded that the regulation “simply authorizes revocation where the supplier submits ‘a claim or claims for services that could not have been furnished to a specific individual on the date of service,’ including, as is particularly applicable here, ‘where the beneficiary is deceased.’”  Howard B. Reife, D.P.M., DAB No. 2527 at 5 (2013).  The Board has long held that the regulation’s plain language does not require CMS to establish fraudulent or

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dishonest intent to revoke a supplier’s billing privileges under this section and that “[t]he regulatory language also does not provide any exception for inadvertent or accidental billing errors.”  Louis J. Gaefke, D.P.M., DAB No. 2554 at 7 (2013).  As a result, Petitioner’s argument on this issue is without merit.  As such, I find there was a legitimate basis for revocation of Petitioner’s enrollment and billing privileges, pursuant to the provisions of 42 C.F.R. § 424.535(a)(8)(i).

B.  I have no jurisdiction to adjudicate the 10-year reenrollment bar.

Petitioner has argued that the 10‑year reenrollment bar is “excessive” and was imposed without consideration of the regulatory provisions of 42 C.F.R. § 1003.140.  P. PH Br. at 10.  While I will address its argument about the failure to consider the cited regulatory factors in the consideration of the preclusion list issue, I am unable to consider any request to reduce the length of the reenrollment bar or eliminate it.  The only CMS actions subject to appeal under 42 C.F.R. part 498 are the types of initial determinations specified in 42 C.F.R. § 498.3(b).  The Board has held that CMS’s determination of the length of the reenrollment bar under section 498.535(c) is not subject to review, explaining as follows:

Although the [reenrollment] bar is a direct and legally mandated consequence of an appealable revocation determination, nothing in Part 498 authorizes the Board to review the length of the bar despite that relationship between a revocation and a reenrollment bar.  Given section 498.3(b)’s precise and exclusive enumeration of appealable determinations, we cannot find a CMS action to be appealable under Part 498 unless section 498.3(b) describes the subject matter of that action.  See North Ridge Care Ctr., DAB No. 1857 at 8 (2002) (stating that “[b]y its very terms, Part 498 provides appeal rights only for these listed actions”).  On its face, section 498.3(b) does not describe any matter related to a post-revocation [reenrollment] bar.

Vijendra Dave, M.D., DAB No. 2672 at 10 (2016).  Petitioner cites no contrary authority. Given this holding by the Board, I have no regulatory authority to review the length of the reenrollment bar.

C.  The evidence establishes that CMS had a legitimate basis to include Petitioner on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 422.222.

As noted above, CMS made a determination to include Petitioner on the CMS preclusion list, effective January 12, 2022.  CMS Ex. 2 at 9.  Petitioner argues that this

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determination was not made with consideration of the factors identified in 42 C.F.R. § 1003.140.  P. PH Br. at 10-12.  However, the regulation it cited governs cases brought by the Office of the Inspector General, which does not apply in this case.

“Preclusion list” is defined in 42 C.F.R. § 422.2 as follows:  [A] CMS compiled list of individuals and entities that – (1) Meet all of the following requirements:

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in § 424.535(a)(3) of this chapter.

(ii) The individual or entity is currently under a reenrollment bar under § 424.535(c).

(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.

In making the determination under paragraph (1)(iii), CMS considers the following factors:

(A) The seriousness of the conduct underlying the individual’s or entity’s revocation.

(B) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program.

(C) Any other evidence that CMS deems relevant to its determination.

CMS cites as a basis for placing Petitioner on the preclusion list the repeated acts of abuse of its Medicare billing privileges by submitting 43 claims for 10 distinct beneficiaries that could not have been furnished on the alleged dates of service because the beneficiaries were dead.  CMS Ex. 2 at 8.  Petitioner argues that it has been serving its community honestly and consistently since 1999 and it finds itself in the current condition “due to a pandemic that led to a public health emergency that was out of its control.”  P. PH Br. at 12.

In considering the regulatory criteria for placement on the preclusion list, I find that Petitioner has met the first two factors for its inclusion on the list:  Petitioner’s enrollment is revoked under the provisions of 42 C.F.R. § 424.535(a)(8)(i), and Petitioner is subject to a 10-year reenrollment bar under § 424.535(c).

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In considering whether the underlying conduct of Wheelchair City is detrimental to the best interests of the Medicare program, I cannot ignore the undisputed fact that it received notice of the deaths of the Medicare beneficiaries it was serving and yet did nothing to stop the ongoing billing for these individuals.  Certainly, Petitioner’s business, like all businesses, was negatively impacted by the pandemic.  However, to seek funds for itself during this time from the Medicare program on behalf of beneficiaries it knew were deceased would clearly have a negative impact on funds available for other living Medicare beneficiaries.  Such behavior demonstrates at least a negligent disregard for the integrity of the Medicare program.  Therefore, I conclude that CMS was warranted in concluding that Petitioner’s conduct was detrimental to the best interests of the Medicare program and that CMS had a legitimate basis for placing Petitioner on the preclusion list.

V.    Conclusion

For the foregoing reasons, I affirm CMS’s revocation of Petitioner’s enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(8)(i), and affirm CMS’s placement of Petitioner on the preclusion list, pursuant to 42 C.F.R. §§ 422.2 and 422.222.

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Endnotes

¹  The initial determination identified 64 claims for services for 13 beneficiaries who were deceased on the date of the alleged services as the basis for the revocation.  CMS Ex. 3 at 5-7.  Upon reconsideration, CMS considered additional evidence provided by Wheelchair City and concluded that only 43 of those claims for 10 beneficiaries were submitted for payment for services that could not have been furnished on the alleged dates of service because the beneficiaries were deceased.  CMS Ex. 2 at 5.  Only these remaining 43 claims that served as the basis for revocation under 42 C.F.R. § 424.535(a)(8)(i) are considered in this decision.

²  This case was reassigned to me on August 3, 2023.

³  Because a hearing is not necessary, I need not decide whether summary judgment is appropriate.

⁴  My findings of fact and conclusions of law are set forth in bold italics below.

⁵  It is noted that Petitioner was notified that at least two of the beneficiaries identified above had died before the executive order was issued.  Wheelchair City was notified through remittance notices with denial code CO-13 in January 2020 of the deaths of R.S. and J.S.  CMS Ex. 2 at 6-7.