Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Elaine Leong Eng, M.D.,
Centers for Medicare & Medicaid Services.
Docket No. C-17-1183
Decision No. CR5077
Petitioner’s Medicare billing privileges were deactivated on November 15, 2016, as a result of her failure to timely comply with a request that she revalidate her Medicare enrollment. For the reasons discussed below, I conclude that the effective date of Petitioner’s reactivated Medicare billing privileges remains May 17, 2017.
I. Background and Procedural History
On June 17, 2016, National Government Services (NGS), a Medicare administrative contractor, sent a letter to Petitioner, a psychiatrist, requesting that she revalidate her Medicare enrollment no later than August 31, 2016. See Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 2 at 1. NGS instructed Petitioner to “update or confirm all the information in [her] record, including [her] practice locations and reassignments.” CMS Ex. 2 at 1. NGS cautioned Petitioner that a “[f]ailure to respond to this notice will result in a hold on [her] payments, and possible deactivation of [her] Medicare enrollment,” and further warned that in the event of deactivation, “[Petitioner]
will not be paid for services rendered during the period of deactivation” which “will cause a gap in [her] reimbursement.” CMS Ex. 2 at 1. NGS provided two telephone numbers that Petitioner could call if she needed assistance, and also provided various public websites that she could reference. CMS Ex. 2 at 1-2.
Petitioner submitted a revalidation application, Form CMS-855I, that NGS received on September 1, 2016. CMS Ex. 3. In Section 13 of the application, Petitioner listed RuthAnn Kirschen as “the person [she] would like [NGS] to contact regarding this application.” CMS Ex. 3 at 26. Petitioner provided Ms. Kirschen’s contact information, to include her mailing address, telephone number, facsimile number, and email address. CMS Ex. 3 at 26.
On October 12, 2016, NGS sent correspondence to the email address Petitioner provided in her September 2016 Form CMS-855I. CMS Ex. at 4 at 1 (NGS “Case 360” notes (October 12, 2016 entries)); see CMS Ex. 1 at 2-3 (declaration of Gamble Stevenson, Senior Representative, NGS Provider Enrollment); CMS Ex. 3 at 26. NGS’s email message included an attachment, which was a letter informing Petitioner that her application was incomplete and that she needed to submit additional information within 30 days. CMS Ex. 5; see CMS Ex. 4 at 1. In particular, NGS requested that Petitioner provide complete responses to Sections 2, 3, 4, and 15 of the enrollment application. CMS Exs. 4 at 1; 5. The letter cautioned that NGS may reject the revalidation application if Petitioner did not provide complete information within 30 days. CMS Ex. 5 at 1. Petitioner did not submit a response to NGS’s request for additional information. CMS Ex. 1 at 3.
Based on her failure to complete the revalidation request, to include her “failure to respond to a request for additional information,” NGS sent Petitioner a letter, via email, in which it notified her that it had deactivated her Medicare enrollment, effective November 15, 2016. CMS Ex. 6 at 1 (emphasis omitted); see CMS Exs. 1 at 3; 4 at 1. Mr. Stevenson’s testimony reports that “[l]ess than 20 minutes later . . . NGS received a phone call from Ms. Kirsch[e]n,” and that “Ms. Kirsch[e]n called NGS two additional times on this date.” CMS Ex. 1 at 3; see CMS Ex. 4 at 1. Mr. Stevenson reported that Ms. Kirschen complained that she was not receiving email notices from NGS. CMS Ex. 1 at 3; see CMS Ex. 4 at 1.
NGS received Petitioner’s Medicare enrollment application for purposes of revalidation and reactivation on May 23, 2017.1 CMS Ex. 7 at 1. On June 9, 2017, NGS reactivated
Petitioner’s Medicare enrollment, effective May 17, 2017.2 CMS Ex. 9 at 1. The letter advised Petitioner that she could request reconsideration if she disagreed with the effective date assigned for her reactivation, stating, in pertinent part:
You may submit the additional information with the reconsideration request that you believe may have a bearing on the decision. However, if you have additional information that you would like a hearing officer to consider during the reconsideration or, if necessary, an administrative law judge to consider during a hearing, you must submit that information with your request for reconsideration. This is your only opportunity to submit information during the administrative appeals process; you will not have another opportunity to do so unless an administrative law judge specifically allows you to do so under 42 CFR § 498.56(e).
CMS Ex. 9 at 2-3. On July 24, 2017, NGS received Petitioner’s request for reconsideration that disputed the effective date assigned for her reactivated billing privileges. CMS Ex. 10. Petitioner argued that her deactivation “has now caused a financial hardship for our patients that pay in advance and await reimbursement from NGS/Medicare.” CMS Ex. 10 at 5. Petitioner also contended that she had submitted an earlier application for purposes of reactivation “in February 2017,” although she did not submit evidence that she filed an earlier application. CMS Ex. 10 at 4.
NGS issued a reconsidered determination on July 31, 2017, in which it maintained the May 17, 2017 effective date of Petitioner’s reactivated billing privileges. CMS Ex. 11. NGS explained that it had received the following documentation with respect to Petitioner’s request for reconsideration:
- Reconsideration Form Signed by RuthAnn Kirschen of 07/19/2017
- Reconsideration Request Letter Signed by Elaine Eng of 07/19/2017
- 855I Cover Letter of 05/17/2017
- Approval Initial Part B Letter of 06/09/2017
- Development Request Letter of 10/12/2016
CMS Ex. 11 at 2. The letter explained that the October 12, 2016 development request and November 15, 2016 deactivation notice had been sent to “the email address listed on the application” that Petitioner filed in September 2016. CMS Ex. 11 at 2. NGS also
discussed that, on the same day it sent the application rejection notice via email, Ms. Kirschen called NGS. CMS Ex. 11 at 2. NGS reported that it received an enrollment application for purposes of reactivation on May 23, 2017. CMS Ex. 11 at 3.
Petitioner submitted a request for an administrative law judge (ALJ) hearing that was dated August 30, 2017, and mailed on September 1, 2017. I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on September 28, 2017, in which I, inter alia, cautioned that “Petitioner may not offer new documentary evidence in this case absent a showing of good cause for failing to present that evidence previously to CMS.” Pre-Hearing Order, § 6. CMS filed a Pre-Hearing Brief and Motion for Summary Judgment (CMS Br.), along with 11 proposed exhibits (CMS Exs. 1-11). Petitioner, through counsel, filed a pre-hearing brief, along with four proposed exhibits (P. Exs. 1-4). As I explain below, I will not admit P. Ex. 1 (Form CMS-855I Medicare enrollment application, dated January 18, 2017), P. Ex. 2 (cover letter, dated January 24, 2017), and P. Ex. 3 (U.S. Postal Service Form 3817, showing a postmark date of January 24, 2017) because Petitioner has not shown good cause for the untimely submission of these documents. I admit the remaining exhibits, CMS Exs. 1-11 and P. Ex. 4, into the evidentiary record.
Both parties have submitted written direct testimony. CMS Ex. 1; P. Ex. 4. Neither party has requested a hearing for purposes of cross-examination of any witnesses, and a hearing for the purpose of cross‑examination is therefore unnecessary. See Pre-Hearing Order, §§ 8, 9, and 10. I consider the record in this case to be closed, and the matter is ready for a decision on the merits.3
Whether CMS had a legitimate basis to assign Petitioner a May 17, 2017 effective date for her reactivated billing privileges.
I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).
IV. Findings of Fact, Conclusions of Law, and Analysis
1. Petitioner has not shown good cause for submitting new documentary evidence, and there is no basis to admit this evidence into the record.
Petitioner submitted three proposed documentary exhibits (P. Exs. 1, 2, 3) that she did not submit prior to filing her request for an ALJ hearing. These three proposed exhibits will not be admitted into the record.
Petitioner’s three exhibits involve a purported January 2017 Medicare enrollment application (P. Exs. 1-3), to include a certification of mailing document that she argues evidences the mailing of this application on January 24, 2017. P. Br. at 4, citing P. Ex. 3. Petitioner did not submit any of these documents when she submitted her reconsideration request, and Petitioner has not shown good cause for failing to do so, as required by 42 C.F.R. § 498.56(e). See CMS Ex. 9 at 2 (explaining that Petitioner “will not have another opportunity” to submit evidence unless permitted by an ALJ). In fact, Petitioner’s request for reconsideration does not make any reference to a January 2017 enrollment application, nor does it include supporting evidence, to include a January 24, 2017 certification of mailing by the U.S. Postal Service. CMS Ex. 10.
I must examine new documentary evidence that is offered by a provider or supplier and determine whether good cause exists for submitting that evidence for the first time at the ALJ level. 42 C.F.R. § 498.56(e)(1). I must exclude any new documentary evidence at the ALJ level of appeal if I do not find good cause for a petitioner’s failure to previously submit that evidence. 42 C.F.R. § 498.56(e)(2)(ii) (stating that “if the ALJ determines that there was not good cause for submitting the evidence for the first time at the ALJ level, the ALJ must exclude the evidence from the proceeding and may not consider it in reaching a decision”); Care Pro Home Health, Inc., DAB No. 2723 at 11 (2016) (“In enrollment revocation cases, an ALJ must exclude ‘new documentary evidence’ – that is, documentary evidence that a provider did not previously submit to CMS at the reconsideration stage (or earlier) – unless the ALJ determines that ‘the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.’ 42 C.F.R. § 498.56(e)(1).”). While “good cause” is not defined in the regulations, the Departmental Appeals Board (DAB) has explained that, in showing good cause in such a situation, a party must explain its “failure to submit [evidence] at the reconsideration stage (or earlier).” Care Pro, DAB No. 2723 at 14.
NGS clearly explained, when it notified Petitioner that she could request a hearing regarding the effective date of her reactivated billing privileges, that “if [she had] additional information that [she] would like a hearing officer to consider during the reconsideration or, if necessary, an administrative law judge to consider during a hearing, [she] must submit that information with [her] request for reconsideration.” CMS Ex. 9 at 2-3. In fact, NGS, citing section 498.56(e), stressed that the reconsideration request
would be the “only opportunity” to submit this information. CMS Ex. 9 at 2-3. Likewise, I reminded Petitioner of the good cause requirement in my Pre-Hearing Order when I instructed that she “may not offer new documentary evidence in this case absent a showing of good cause for failing to present that evidence previously to CMS.” Order, § 6, citing 42 C.F.R. § 498.56(e).
Despite these warnings, Petitioner, who is currently represented by counsel, did not address the good cause requirement, even though much of her arguments are premised on P. Ex. 3, which is new evidence that she claims demonstrates that she mailed a Form CMS-855I in January 2017. P. Br. at 4-5 (“Due to the loss of the January 18 Application, Petitioner was forced to submit an additional CMS 855I, dated May 7, 2017, which was ultimately processed to completion.”). Petitioner disregarded the requirements of section 498.56(e), along with my clear directive that “[i]f Petitioner offers such [new] evidence, the evidence must be specifically identified as new, and Petitioner’s brief must explain why good cause exists for me to receive it.” Order, § 6. Petitioner’s documentary evidence was in existence at the time of her request for reconsideration and she did not submit the evidence at that time nor offer a showing of good cause to present the evidence at this level.
Section 498.56(e)(1) explicitly states that an ALJ will determine whether good cause exists for the submission of new documentary evidence “[a]fter a hearing is requested but before it is held . . . .” Section 498.56(e) further states, unambiguously, that “the ALJ will examine any new documentary evidence submitted to the ALJ by a provider or supplier to determine whether the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.” 42 C.F.R. § 498.56(e) (emphasis added). As Petitioner has not asserted good cause for the untimely submission of P. Exs. 1, 2, and 3, I may not admit this evidence. 42 C.F.R. § 498.56(e)(2)(ii).4
2. On June 17, 2016, NGS requested that Petitioner revalidate her Medicare enrollment no later than August 31, 2016.
3. On September 1, 2016, NGS received an enrollment application that listed a designated point of contact and email address for that point of contact.
4. On October 12, 2016, NGS sent Petitioner, via the email address she provided in September 2016, a development request in which it directed Petitioner to provide additional information.
5. Petitioner did not submit a response to NGS’s development request, and NGS rejected Petitioner’s revalidation application on November 15, 2016, at which time it provided written notice of the deactivation to the same email address Petitioner provided in September 2016.
6. NGS received Petitioner’s enrollment application for purposes of revalidation and reactivation on May 23, 2017, and NGS ultimately processed that application to approval.
7. An effective date earlier than May 17, 2017, is not warranted for the reactivation of Petitioner’s Medicare enrollment and billing privileges.
Petitioner is a “supplier” for purposes of the Medicare program. See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 410.20(b)(1); see also 42 C.F.R. § 498.2. A “supplier” furnishes services under Medicare and the term applies to physicians or other practitioners that are not included within the definition of the phrase “provider of services.” 42 U.S.C. § 1395x(d). A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services. 42 C.F.R. § 424.505. The regulations at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program. 42 C.F.R. §§ 424.510 - 424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program). A supplier that seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.” 42 C.F.R. § 424.510(a)(1). “Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.” 42 C.F.R. § 424.510(a)(1); see also 42 C.F.R. § 424.510(d) (listing enrollment requirements). Thereafter, “[t]o maintain Medicare billing privileges, a . . . supplier . . . must resubmit and recertify the accuracy of its enrollment information every 5 years.” 42 C.F.R. § 424.515.
CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days of a request for such information. 42 C.F.R. § 424.540(a)(3). If CMS deactivates a supplier’s Medicare billing privileges, “[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary.” 42 C.F.R. § 424.555(b). Further, and quite significantly, the DAB has unambiguously stated that “[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.” Willie Goffney, Jr., M.D.,DAB No. 2763 at 6; see Urology Group of NJ, LLC,DAB No. 2860 at 11 (2018) (“Taking these unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive
Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider’s or supplier’s ability to participate.”). The regulation authorizing deactivation explains that “[d]eactivation of Medicare billing privileges is considered an action to protect the provider or supplier from misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments.” 42 C.F.R. § 424.540(c).
On June 17, 2016, NGS mailed a letter to Petitioner directing her to revalidate her Medicare enrollment record no later than August 31, 2016, and NGS warned that Petitioner’s failure to revalidate could result in deactivation of her Medicare enrollment and billing privileges, with a resulting gap in reimbursement. CMS Ex. 2 at 1. After Petitioner submitted an incomplete enrollment application in response to the revalidation request, NGS, on October 12, 2016, informed Petitioner that she needed to provide additional information. CMS Exs. 4 at 1; 5 at 1. After Petitioner did not provide the requested information within 30 days, NGS deactivated Petitioner’s billing privileges. CMS Ex. 6. Petitioner submitted a revalidation application that was received on May 23, 2017, and NGS favorably granted an effective date of reactivated billing privileges of May 17, 2017. CMS Exs. 8, 9.
The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d). Urology Group, DAB No. 2860 at 9 (“The governing authority to determine the effective date for reactivation of Petitioner’s Medicare billing privileges is 42 C.F.R. § 424.520(d).”). Section 424.520(d) states that “[t]he effective date for billing privileges for physicians . . . is the later of – (1) [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) [t]he date that the supplier first began furnishing services at a new practice location.” The DAB has explained that the “date of filing” is the date “that an application, however sent to a contractor, is actually received.” Alexander C. Gatzimos, MD, JD, LLC,DAB No. 2730 at 5 (2016) (emphasis omitted). NGS deactivated Petitioner’s billing privileges “due to the failure to respond to a request for additional information . . .”). CMS Ex. 6 at 1 (emphasis omitted). Petitioner filed the application for purposes of revalidation and reactivation that was processed to approval on May 23, 2017. CMS Ex. 7 at 1. Based on the May 23, 2017 receipt date of the enrollment application that was processed to approval, NGS did not err in assigning a May 17, 2017 effective date for reactivated billing privileges. See Urology Group, DAB No. 2860 at 9 (“Moreover, the fact that a supplier must file a new enrollment application in order to reactivate its billing privileges is consistent with the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations.”); Willie Goffney,DAB No. 2763 at 6 (“It is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.”); 42 C.F.R. § 424.520(d).
Petitioner is challenging the assignment of a May 17, 2017 effective date of her reactivated billing privileges, which resulted in more than a six-month gap in her billing
privileges from the date of her deactivation on November 15, 2016, through her reactivation on May 17, 2017. Petitioner was required to timely respond to the revalidation request to avoid the prospect of deactivation pursuant to 42 C.F.R. § 424.540(a)(3), and NGS deactivated her billing privileges after it rejected her revalidation application due to her failure to comply with the development request. CMS Ex. 9 at 6-10; see also 42 C.F.R. § 424.525(d) (CMS “may reject . . . an enrollment application” if the supplier “fails to furnish complete information . . . within 30 calendar days from the date of the contractor request for missing information.”). The DAB has explained that a deactivation action is not reviewable, and “[t]he only action in the reconsidered determination which is appealable is . . . the initial determination of the effective date of the enrollment application reinstating [the petitioner].”5 Willie Goffney,DAB No. 2763 at 3-5. NGS correctly deactivated Petitioner’s billing privileges because it rejected, pursuant to 42 C.F.R. § 424.525(d), Petitioner’s incomplete application in response to the revalidation request. Because Petitioner did not comply with the revalidation request in accordance with the time period prescribed by 42 C.F.R. § 424.540(a)(3), NGS had a legitimate basis to assign an effective date of May 17, 2017, for Petitioner’s reactivated billing privileges based on a correct application of 42 C.F.R. § 424.520(d).
Petitioner has argued on multiple occasions that the deactivation of her Medicare billing privileges is causing financial harm to her patients who paid her for services during the period of deactivation. CMS Ex. 10 (“This has now created financial hardship for our patients that pay in advance and await reimbursement from NGS/Medicare.”); Request for Hearing (“[I]t represents a great financial hardship to my patients who have not been reimbursed during that period.”); P. Br. at 4 (“NGS’s failure to acknowledge and record the January 18 Application has caused significant financial hardship for Petitioner and Petitioner’s patients, who have been unable to receive reimbursement for services provided by Petitioner during the Gap Period.”). Petitioner’s statements raise a serious concern about whether Petitioner has been compliant with 42 C.F.R. § 424.555(b), which directs the following:
(b) No payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary by a provider or supplier if the billing privileges of the provider or supplier are deactivated, denied, or revoked. The Medicare beneficiary has no financial responsibility for expenses, and the provider or supplier must refund on a timely basis to the Medicare beneficiary any amounts collected from the Medicare beneficiary for these otherwise Medicare covered items or services.
Although CMS is seemingly indifferent to Petitioner’s claims that her patients have incurred financial hardship (presumably due to her failure to “refund on a timely basis” the “amounts collected . . . for these otherwise Medicare covered items or services” during her period of deactivation, as required by section 424.555(b)), I nonetheless voice my own concerns about Petitioner’s practice of taking payments from Medicare beneficiaries during her period of deactivation. See CMS Br. at 15 (“Petitioner’s assertions that her patients were inconvenienced and that they suffered financial harm as a result of NGS’ actions or inactions are also essentially equitable . . . .”); but see Urology Group, DAB No. 2860 at 15 (“Petitioner chose to provide services to Medicare beneficiaries during a period when it knew or should have known it would have no right to bill for any services provided.”). Petitioner was aware of her deactivation on the date of deactivation, November 15, 2016, as evidenced by documentation of Ms. Kirschen’s telephone conversations with NGS that same day (CMS Ex. 4 at 1) and her admissions in her brief (P. Br. at 3-4), and she was similarly aware that she was not entitled to reimbursement during her deactivation. CMS Ex. 2 (informing Petitioner that, if she did not comply with the revalidation request, that she “will not be paid for services rendered during the period of deactivation.”). Petitioner’s complaints that her patients have been financially harmed are not persuasive, in that Petitioner continued to collect fees for non-reimbursable services that she provided when she knew that Medicare reimbursement would be precluded during the period of deactivation of her billing number. Pursuant to section 424.555(b), the appropriate remedy is for Petitioner to reimburse her patients the fees they paid her for non-reimbursable services.
Further, Petitioner is not entitled to equitable relief, and to the extent that Petitioner is requesting equitable relief in the form of an earlier effective date of reactivated billing privileges, I am unable to grant equitable relief. US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”). I do not have the authority to “[f]ind invalid or refuse to follow Federal statutes or regulations or secretarial delegations of authority.” See, e.g., 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground, even a constitutional one.”).
In the absence of any basis to grant an earlier date for the reactivation of billing privileges, the May 17, 2017 effective date for the reactivation of Petitioner’s billing privileges must stand.
For the foregoing reasons, I uphold the May 17, 2017 effective date of Petitioner’s reactivated billing privileges.
Leslie C. Rogall Administrative Law Judge
1. Petitioner had previously submitted an application via facsimile on May 9, 2017. CMS Ex. 8. Mr. Stevenson testified that pursuant to sections 188.8.131.52 and 184.108.40.206 of the Medicare Program Integrity Manual, Medicare administrative contractors do not accept applications via facsimile because the certification statement lacks an “original” signature. CMS Ex. 1 at 4 n.1; see CMS Br. at 11 n.6.
- back to note 1 2. CMS acknowledges that the effective date of reactivation is incorrect, but that any error is in Petitioner’s favor. CMS Br. at 6 n.3. (“Although NGS should have set the effective date as May 23, 2017, the reactivation date of Petitioner’s billing privileges was actually set six days earlier than it should have been and CMS does not intend to re-open or revise its effective date determination.”). NGS explained that it assigned the May 17, 2017 effective date based on the date of receipt of a congressional inquiry. CMS Ex. 11 at 3.
- back to note 2 3. CMS argues that summary disposition is appropriate. It is unnecessary in this instance to address the issue of summary disposition, as neither party has requested an in-person hearing.
- back to note 3 4. Relying on this evidence, Petitioner argues she submitted an application on January 24, 2017, that was lost. P. Br. at 4, citing P. Ex. 3. Because I have not admitted the evidence that is the basis for this argument, I will not consider this factual argument.
- back to note 4 5. The DAB explained: “Moreover, neither [42 C.F.R. §] 424.545(b) nor any other regulation provides appeal rights from the contractor’s deactivation determination or any rebuttal determination.” Willie Goffney, DAB No. 2763 at 5; see also Arkady B. Stern, M.D., DAB No. 2417 at 3 n.4 (2011) (Petitioner argues on appeal that deactivation was improper, but the DAB “does not have the authority to review” deactivation under circumstances of this case, citing 42 C.F.R. §§ 424.545(b) and 498.3(b)); Andrew J. Elliott, M.D., DAB No. 2334 at 4 n.4 (2010) (DAB “does not have authority to review” a deactivation). Therefore, I may not consider Petitioner’s arguments challenging her deactivation. See P. Br. at 3 (“NGS states that it emailed a copy of the October 12, 2016 letter to Ms. Kirschen’s email address, however Ms. Kirschen never received the email transmission.”).
- back to note 5