Barbara Eloisa Mai, Ph.D., APRN, BC-P, DAB CR5378 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative contractor, revoked the Medicare enrollment and billing privileges of Barbara Eloisa Mai, Ph.D., APRN, BC-P (Dr. Mai or Petitioner) for noncompliance with enrollment requirements and a failure to report an adverse action.  42 C.F.R. § 424.535(a)(1), (9).  Dr. Mai requested a hearing to dispute the revocation.  The record shows that Dr. Mai’s state nursing license was expired for approximately a year; therefore, I affirm CMS’s revocation because Dr. Mai was not in compliance with enrollment requirements.

I.  Case Background and Procedural History

Petitioner is a clinical nurse specialist who was enrolled to provide health care services to Medicare beneficiaries and receive reimbursement from the Medicare program.  On November 16, 2017, a CMS administrative contractor revoked Petitioner’s Medicare enrollment and billing privileges, effective December 16, 2017, for the following reasons:

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42 CFR § 424.535(a)(1) – Not in Compliance with Medicare Requirements
The Maryland Board of Nursing placed your license in an expired status on November 28, 2016 and you continued to bill for services with an expired license.  By reason of this status, you are in noncompliance with the enrollment requirements for not being properly licensed.

42 CFR § 424.535(a)(9) – Failure to Report Changes
You failed to comply with the reporting requirement specified in 42 CFR 424.516(d)(1)(ii), which pertains to the reporting of changes in adverse actions, within 30 days of the reportable event.

CMS Exhibit (Ex.) 2 at 1.  The notice stated that the CMS contractor imposed a three-year re-enrollment bar beginning “30 days after the postmark date of this letter.”  CMS Ex. 2 at 2.  Finally, the notice advised Petitioner that she had 30 days to file a Corrective Action Plan (CAP) and 60 days to file a request for reconsideration.  CMS Ex. 2 at 1.

In December 2017, Petitioner timely requested reconsideration.  Representing herself, Dr. Mai stated that she had attempted to renew her license and received a document on October 23, 2016, stating she had successfully renewed her license.  Dr. Mai indicated that she believed that her license was active at all times, and when informed otherwise she immediately corrected the problem.  CMS Ex. 1 at 7-9.

On March 5, 2018, the CMS administrative contractor issued a reconsidered determination upholding the revocation of Petitioner’s billing privileges, which stated:

Barbara Mai, Ph.D., APRN, BD-P has not provided evidence to show full compliance with the standards for which you were revoked.  According to the Maryland Board of Nursing, your license expired November 28, 2016 and was not renewed until December 8, 2017.

CMS Ex. 1 at 2.  The reconsidered determination did not affirm 42 C.F.R. § 424.535(a)(9) as a basis for revocation.

Petitioner timely requested a hearing to dispute the revocation.  Judge Keith W. Sickendick was assigned to this case and, on March 29, 2018, issued an Acknowledgment and Prehearing Order (Prehearing Order).  In conformance with the Prehearing Order, CMS filed a brief and motion for summary judgment (CMS Br.), along with three proposed exhibits (CMS Exs. 1-3).  CMS did not submit a witness list or otherwise

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indicate that it intended to offer any witness testimony.  CMS noted in its brief that the initial determination identified 42 C.F.R. § 424.535(a)(9) as one of the bases for revocation, but that CMS no longer would pursue revocation on that basis.  CMS Br. at 1 n.1.

Petitioner also filed a prehearing brief (P. Br.).  Although Petitioner indicated that she was not affirmatively waiving her right to an oral hearing (P. Br. at 3), Petitioner did not submit a witness list or otherwise indicate that she intended to offer any witness testimony.  Petitioner also did not submit any proposed exhibits.

On June 4, 2018, CMS filed a notice declining to exercise its option to file a reply brief.

On November 20, 2018, I was assigned to hear and decide this case.

II.  Decision on the Record

I admit all of CMS’s proposed exhibits into the record because Petitioner did not object to any of them.

The Prehearing Order required each party to include with its prehearing exchange a list of any witnesses that it proposed to call at an oral hearing.  Prehearing Order § II(D)(1), (2); Civil Remedies Division Procedures (CRDP) § 16(a).  Neither party submitted witness lists.  Therefore, I issue this decision based on the written record because “the parties d[id] not identify any proposed witnesses.”  CRDP § 19(d).

III.  Issue

Whether CMS had a legitimate basis to revoke Petitioner’s billing privileges under 42 C.F.R. § 424.535(a)(1).

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

My findings of fact and conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

In order to participate in the Medicare program as a supplier, individuals must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510, and 424.516.  CMS may revoke the Medicare billing privileges of suppliers for any of the reasons stated in 42 C.F.R. § 424.535(a).

1. Effective November 28, 2016, Petitioner’s nursing license, issued by the Maryland Board of Nursing, expired and remained expired until renewed on December 8, 2017.

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The Maryland Board of Nursing issued a nursing license to Petitioner in 1995.  CMS Ex. 1 at 24.  On October 23, 2016, Petitioner renewed her nursing license.  CMS Ex. 1 at 15, 18.  However, while applying to be a member of the Optum network in November 2017, Petitioner learned from an Optum credentialing coordinator that the Maryland Board of Nursing considered Petitioner’s nursing license to have expired on November 28, 2016.  CMS Ex. 1 at 10-17.  Petitioner contacted the Maryland Board of Nursing and confirmed that her license was expired because Petitioner had not provided fingerprints and a background check.  CMS Ex. 1 at 8.  Petitioner then quickly complied with those requirements.  CMS Ex. 1 at 8, 19.  Petitioner’s nursing license with the Maryland Board of Nursing was renewed as of December 8, 2017, and Petitioner was placed in “Active” status.  CMS Ex. 1 at 24.

2. CMS had a legitimate basis to revoke Petitioner’s enrollment and billing privileges in the Medicare program under 42 C.F.R. § 424.535(a)(1), because Petitioner fell out of compliance with enrollment requirements once her Maryland nursing license expired.

Petitioner was enrolled in the Medicare program as a clinical nurse specialist.  CMS Ex. 3 at 1-2.
   
Clinical nurse specialists who participate in the Medicare program are considered “suppliers.”  See 42 U.S.C. § 1395x(d).  CMS may revoke a currently enrolled supplier’s billing privileges if the supplier no longer meets the enrollment requirements for its supplier type, subject to an opportunity for the supplier to make corrections before revocation.  42 C.F.R. § 424.535(a)(1).  One enrollment requirement is to maintain applicable federal and state licensure.  42 C.F.R. § 424.516(a)(2).  Relevant to this case, a “clinical nurse specialist” for Medicare program purposes is “a registered nurse and is licensed to practice nursing in the State in which the clinical nurse specialist services are performed . . . .”  42 U.S.C. § 1395x(aa)(5)(B)(i); see also 42 U.S.C. § 1395x(s)(K)(ii); 42 C.F.R.§ 410.76(b)(1).  A supplier must be able to show that the supplier is in compliance with enrollment requirements.  42 C.F.R. § 424.545(c).

In order to maintain Medicare enrollment and billing privileges, Petitioner needed to maintain her nursing license in Maryland, the state where she practiced as a clinical nurse specialist.  CMS Ex. 3 at 2.  Petitioner does not dispute that the Maryland Board of Nursing considered her nursing license to be expired from November 28, 2016 to December 8, 2017.  When the Maryland Board of Nursing changed Petitioner’s license status to expired, Petitioner no longer met the enrollment requirement of 42 C.F.R. §§ 410.76(b) and 424.516(a)(2).

Petitioner argues that the Maryland Board of Nursing indicated that she successfully renewed her license in 2016 and never informed her that she had not in fact renewed her license.  P. Br. at 2; CMS Ex. 1 at 18.  Petitioner asserts that this situation is not one that

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should support revocation.  CMS responds that Petitioner’s misunderstanding as to her license renewal is not relevant because factually, Petitioner was not licensed to practice from November 2016 to December 2017.  CMS Br. at 6.

CMS is correct that it can prevail in this matter based on the fact that Petitioner was not licensed for a period of time while enrolled as a Medicare supplier.  As stated by the Departmental Appeals Board in relation to a medical license that was suspended pending disciplinary proceedings:

Even if [the state licensing authority] were to reinstate Dr. Ismail’s authorization to practice medicine at the conclusion of its disciplinary proceedings, Dr. Ismail is, as discussed above, unauthorized to practice medicine legally while the suspension is in effect.  Dr. Ismail’s inability to practice medicine for any length of time due to the disciplinary actions imposed against him triggered his noncompliance with the Medicare enrollment requirements and authorized revocation of his billing privileges.

Akram A. Ismail, M.D., DAB No. 2429 at 8 (2011).

Therefore, CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(1).

3. I do not have jurisdiction to review the length of the re-enrollment bar imposed in this case, but CMS should consider ending the re-enrollment bar as soon as possible and allow Petitioner to apply for re-enrollment immediately.

Whenever CMS has properly imposed revocation on a supplier, CMS must also determine how long the supplier will be barred from seeking re-enrollment as a supplier.  The regulations at 42 C.F.R. § 424.535(c)(1) provide that “[t]he re-enrollment bar begins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 3 years, depending on the severity of the basis for revocation.”

In the initial determination, the CMS contractor imposed a three-year re-enrollment bar on Petitioner.  CMS Ex. 2 at 2.  Neither the initial nor the reconsidered determinations stated why the severity of the bases for revocation warranted the maximum re-enrollment bar.

Petitioner argues that the re-enrollment bar in this case should be reduced to a year given the facts related to the license expiration.  P. Br. at 3.

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I am unable to consider Petitioner’s arguments.  The length of the re-enrollment bar CMS imposes is not a determination subject to review by an administrative law judge.  Vijendra Dave, M.D., DAB No. 2675 at 9 (2016) (“our authority in a revocation case does not extend to reviewing the length of the reenrollment bar imposed by CMS.”).

However, given that Petitioner’s failure to renew her license was based on her reasonable belief that she had in fact successfully renewed her license (CMS Ex. 1 at 18), and Petitioner acted quickly to correct that problem once she was subsequently made aware of it (CMS Ex. 1 at 7-8, 14-16, 19, 24), I strongly encourage CMS to act as soon as possible to reduce the re-enrollment bar on Petitioner and permit her to seek re-enrollment immediately.  In further support of a reduction in the enrollment bar is the fact that the reconsidered determination did not affirm one of the two bases for revocation in the initial determination, and CMS abandoned that second basis for revocation in this proceeding.  CMS Br. at 1 n.1.  Therefore, the severity of Petitioner’s offense has been reduced and can no longer support imposition of the maximum re-enrollment bar permitted under the regulations.

V.  Conclusion

I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges.