Opal Joiner, CRNA, DAB CR5118 (2018)

DECISION

The Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor, Novitas Solutions (Novitas), denied Petitioner Opal Joiner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(4).  Petitioner challenges the enrollment denial.  For the reasons discussed below, I affirm CMS’ denial of Petitioner’s enrollment application.

I. Background

Petitioner is a certified registered nurse anesthetist (CRNA) who was licensed to practice in Texas and Florida.  On January 17, 2013, the Texas Board of Nursing suspended Petitioner’s nursing license, stayed the suspension, and subjected Petitioner to a two-year probationary period for use of controlled substances or chemical dependency.  P. Ex. 5 at 4-14.  On January 3, 2014, the Florida Board of Nursing, relying on the adverse action taken by Texas, suspended Petitioner’s license to practice in Florida.  CMS Ex. 11 at 13-16; P. Ex. 7.  The Florida Board of Nursing reinstated Petitioner’s license on August 25,

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2015.  CMS Ex. 11 at 6; P. Ex. 8.  The Texas Board of Nursing notified Petitioner on August 1, 2016 that she had met the terms of her probationary period and was eligible to apply for reinstatement.  CMS Ex. 2 at 30. 

On January 19, 2017, Petitioner submitted an application to reactivate her enrollment as a supplier in the Medicare program.  Id. at 28, 45.  In Section 3 of the application, Petitioner marked the box “Yes” in response to the question “Have you, under any current or former name or business identity, ever had a final adverse legal action listed on page 12 of this application imposed against you?”  Id. at 15.  That section also provided a table for applicants to report “each final adverse legal action, when it occurred, the Federal or State agency . . . that imposed the action, and the resolution, if any.”  Id.  Petitioner reported the Texas Board of Nursing had suspended her license, and that she resolved the matter by completing the terms of the suspension.  Id.  Petitioner also indicated she had attached details, which were appended to her application.  Id. at 30-44.  She made no mention of the suspension imposed by the Florida Board of Nursing. 

On July 7, 2017, Novitas notified Petitioner by letter that it denied her Medicare enrollment application because she had provided false or misleading information by failing to report an adverse action against her, in violation of 42 C.F.R. § 424.530(a)(4).  CMS Ex. 1 at 20.  Petitioner timely requested reconsideration, see CMS Ex. 9 at 5, which Novitas denied on October 24, 2017.  CMS Ex. 13.

Petitioner, through counsel, timely requested a hearing before an administrative law judge (ALJ), and I was designated to hear and decide this case.  On December 22, 2017, I issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing Order) setting forth a briefing schedule.  CMS submitted its pre-hearing exchange consisting of a motion for summary judgment (CMS Br.), thirteen exhibits, and its exhibit list, on February 1, 2018.  On March 1, 2018, Petitioner filed her pre-hearing exchange consisting of her motion for summary judgment (P. Br.), fifteen exhibits, and witness and exhibit lists. 

II. Admission of Exhibits and Decision on the Record

There being no objection from Petitioner, I admit CMS Exhibits 1 through 13 into the record.  Similarly, with no objection from CMS as to Petitioner’s exhibits, I admit Petitioner Exhibits 1 through 15 into the record. 

Petitioner has proposed four witnesses, but failed to submit their direct written testimony as explicitly required in my initial acknowledgment order.  Pre-hearing Order at 5.  Even if she had provided this testimony in writing, CMS has not identified witnesses to testify in this matter or requested cross‑examination of Petitioner’s witnesses.  Consequently, I

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will not hold an in-person hearing in this matter, and I issue this decision based on the written record.1 CRDP § 19(d).

III. Issues

Whether CMS has a legitimate basis under 42 C.F.R. § 424.530(a)(4) to deny Petitioner’s enrollment application seeking Medicare billing privileges for submitting false or misleading information on the enrollment application.

IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2).

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

A. Applicable Law.

As a CRNA, Petitioner is a supplier of health care services for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 410.69(b).  In order to participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may deny a supplier’s enrollment for any reason stated in 42 C.F.R. § 424.530, which includes providing false or misleading information:

(4)  False or misleading information.  The provider or supplier has submitted false or misleading information on the enrollment application to gain enrollment in the Medicare program.  (Offenders may be referred to the Office of Inspector General for investigation and possible criminal, civil, or administrative sanctions.)

42 C.F.R. § 424.530(a)(4). 

B. CMS properly denied Petitioner’s enrollment application because she submitted false or misleading information in that application.

The relevant and dispositive facts are not in dispute.  The Texas Board of Nursing took adverse action against Petitioner in January 2013, suspending her nursing license and then staying that suspension while imposing a two-year probationary period to address Petitioner’s chemical dependency issues.  P. Ex. 5 at 4-14.  The state of Florida, where

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Petitioner was also licensed, took its own disciplinary action as a result and suspended Petitioner’s nursing license in January 2014.  CMS Ex. 11 at 13-16.  The application for enrollment Petitioner submitted in January 2017 clearly asked her to identify any adverse legal actions imposed against her, and further defined such actions to include “any revocation or suspension of a license to provide health care by any State licensing authority.”  CMS Ex. 2 at 14.  That application also required Petitioner to certify that her answers were “true, correct, and complete.”  CMS Ex. 2 at 27.  Petitioner clearly identified her suspension and probation in Texas as an adverse action against her, but failed to disclose the related Florida suspension.  CMS Ex. 2 at 15.  Accordingly, the record demonstrates a legitimate basis for CMS to deny Petitioner’s enrollment application.  42 C.F.R. § 424.530(a)(4).

In response, Petitioner does not deny the existence of the Florida suspension or her failure to report it in her application.  Instead, she first argues she was not required to disclose the Florida suspension because Florida’s action was improper, given the expired status of her license at the time.  P. Br. at 5-9.  Petitioner’s argument kicks up an impressive cloud of dust, but fails to obscure the unavoidable outcome here.  Even if she believed at the time of her enrollment application that Florida had improperly suspended her license (an assumption for which there is no evidentiary support), the plain terms of the application required Petitioner to disclose the suspension, even if her attorney later discovered a reason to attack its validity.  Her argument is therefore without merit.

Petitioner also confusingly cites 42 C.F.R. § 424.516 for the proposition that she retains the right to correct her application, well after the fact.  P. Br. at 9.  That regulation obliges applicants to update their pending applications upon discovery of information that would render any part of the application untrue, incomplete, or incorrect.  P. Ex. 13 at 26.  But Petitioner obviously knew of her suspension in Florida prior to the submission of this application for enrollment.  In any case, the regulation in question requires applicants to report adverse legal actions (the provision to which Petitioner presumably refers) within 30 days of that action.  42 C.F.R. § 424.516(d)(1)(ii). 

Petitioner also asserts CMS violated her due process rights by citing a different omission from her application in its brief before me than that found in its reconsidered determination.  P. Br. at 10-11.  Specifically, she believes CMS improperly relies on her failure to disclose her revocation of billing privileges by CMS administrative contractor First Coast Services.  P. Br. at 5-6, citing CMS Br. at 4.  This argument is something of a red herring; even if true that CMS could not properly cite that omission in its brief before me, it is clear CMS’ contractor Novitas relied solely on her failure to report the suspension of her Florida license, at both the initial and reconsidered levels, to deny her enrollment.  CMS’ reference to the billing revocation in its summary judgment motion, even if improper, is irrelevant to the outcome before me.  I rely solely on Petitioner’s failure to report her license suspension by the state of Florida in her application to determine CMS was authorized to deny her enrollment.  Petitioner has received adequate

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notice of the basis for denial of her enrollment application and has been afforded sufficient opportunity to contest that decision at several levels of administrative decision-making, including formal adjudication before me.  Her due process claim is without merit. 

Finally, Petitioner argues in passing that her failure to disclose her suspension in her application was not deliberate and at worst, a mistake.  P. Br. at 11.  But even if I credit Petitioner with entirely benign motives in her failure to identify one of two license suspensions imposed against her, the Departmental Appeals Board has consistently observed in a similar context that where false or misleading information was submitted on an application, CMS need not show evidence of intent to mislead or to misrepresent.  Instead, CMS must show an applicant submitted false or misleading information certified to be true in his or her application.  Sandra E. Johnson, CRNA, DAB No. 2708 at 15 (2016), (quoting Mark Koch, D.O., DAB No. 2610 at 4-5 (2014)); Patrick Brueggeman, D.P.M., DAB No. 2725 (2016).  As I have explained, the record clearly supports such a finding. 

VI. Conclusion

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