Hector Morales, DAB CR6202 (2022)

DECISION

I sustain the determination of a Medicare contractor, as affirmed on reconsideration, to deny Medicare enrollment as a clinical nurse specialist to Petitioner, Hector Morales. 

I. Background

The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment.  Petitioner opposed the motion.¹  Although the facts of this case appear to be undisputed, I find it unnecessary to decide whether the criteria for summary judgment are satisfied, as neither Petitioner nor CMS filed the written direct testimony of a witness and neither party objected to my receiving any exhibits into evidence.  Consequently, I decide this case based on the parties’ written submissions. 

CMS filed five exhibits, identified as CMS Ex. 1-CMS Ex. 5.  Petitioner filed two unidentified exhibits.  One of these is a copy of Petitioner’s license to practice as a nurse in the State of Texas.  The second exhibit is a report from the Texas Board of Nursing. 

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I identify these two exhibits, respectively, as P. Ex. 1 and P. Ex. 2.  I receive the parties’ exhibits into the record. 

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a Medicare contractor, acting on CMS’s behalf, is authorized to deny Petitioner’s application for Medicare enrollment as a clinical nurse specialist.

B. Findings of Fact and Conclusions of Law

On February 23, 2022, Petitioner filed an application with a Medicare contractor for enrollment as a certified clinical nurse specialist in the Medicare program.  CMS Ex. 1 at 1-5; CMS Ex. 2 at 1-2.  On March 9, 2022, the contractor denied Petitioner’s application.  CMS Ex. 3 at 1-6.  Petitioner requested reconsideration of this adverse determination.  On July 7, 2022, the contractor denied Petitioner’s reconsideration request.  CMS Ex. 5 at 1-5. 

The reason provided by the contractor for denying Petitioner’s application is that Petitioner failed to provide proof of certification as a clinical nurse specialist from a recognized national certifying body.  CMS Ex. 3 at 1-6.  The contractor provided the same reason for enrollment denial with its denial of Petitioner’s reconsideration request.  CMS Ex. 5 at 1-5. 

The governing law is clear.  CMS or a contractor acting on its behalf may deny an application for Medicare enrollment where the applicant fails to prove compliance with any enrollment requirement.  42 C.F.R. § 424.530(a)(1).  The enrollment requirements for a clinical nurse specialist include the requirement that he or she be certified as a clinical nurse specialist by a national certifying body that has established standards for clinical nurse specialists and that is approved by the Secretary of the United States Department of Health and Human Services.  42 C.F.R. § 410.76(b)(3). 

There is no dispute that Petitioner failed to offer proof that he is certified by a national certifying body.  Absent such proof CMS is authorized to deny Petitioner’s enrollment.  The denial in this case, initially and on reconsideration, comports with the requirements of the law. 

Petitioner concedes that he is not certified by a national certifying body.  He avers that he is certified to practice as a clinical nurse specialist by the State of Texas.  He argues, alternatively, that this state certification should suffice to qualify him for Medicare enrollment or that as a matter of fairness, he should be enrolled given that the state where he practices recognizes his credentials.

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These arguments fail.  First, the governing regulation is categorical.  One may not be enrolled absent the requisite certification by a national certifying body.  No substitute credentials are permitted.  Consequently, Petitioner fails to meet qualifying requirements even if the State of Texas permits him to practice there.

Second, I lack the authority to compel CMS to accept as qualifying credentials something that does not comport with regulatory requirements.  Ronald Paul Belin, DPM, DAB No. 2629 at 5 (2015).  Not only do I lack authority to compel CMS to waive regulatory requirements, but I also lack authority to order CMS to enroll Petitioner based on principles of fairness and equity.  US Ultrasound, DAB No. 2302 at 8 (2010).

Endnotes

¹ Petitioner filed his pre-hearing exchange untimely.  I accept this exchange.