Dimples Hospice, LLC, DAB CR6517 (2024)

DECISION

The Medicare enrollment and billing privileges of Petitioner, Dimples Hospice, LLC, are revoked pursuant to 42 C.F.R. § 424.535(a)(9) based on the violation of the reporting requirement of 42 C.F.R. § 424.516(e)(2).¹ The effective date of revocation is May 5, 2023, 30 days after the date of the notice of the initial determination to revoke. 42 C.F.R. § 424.535(g).

Partial summary judgment is granted for the Centers for Medicare & Medicaid Services (CMS) because there is a basis for revocation under 42 C.F.R. § 424.535(a)(9) based on the undisputed facts. However, summary judgment is not possible for revocation pursuant to 42 C.F.R. § 424.535(a)(5)(i) because there are genuine disputes of material

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facts that would require a hearing at which testimony would be received. CMS may revoke for any of the reasons listed in 42 C.F.R. § 424.535(a). It is not necessary for CMS to have more than one reason or basis for revocation. Health Connect at Home, DAB No. 2419 at 7 (2011). Therefore, it is appropriate to decide this case based on 42 C.F.R. § 424.535(a)(9) alone. I note however, that if it could be shown that Petitioner was subject to revocation pursuant to 42 C.F.R. § 424.535(a)(5)(i), the effective date of revocation would be December 30, 2022, the date Petitioner was found by CMS to be no longer operational, rather than May 5, 2023, the effective date for revocation under 42 C.F.R. § 424.535(a)(9). 42 C.F.R. § 424.535(g). If CMS wishes to attempt to prove that Petitioner was not operational on December 30, 2022, CMS may, within 30 days, file a motion before me requesting that this case be reopened to permit a hearing for receipt of testimony. If CMS files a motion to reopen, Petitioner may file a response in opposition within 15 days. Petitioner and CMS are cautioned, that my willingness to consider a motion to reopen does not toll the time for requesting review of this decision by the Departmental Appeals Board (the Board).

I. Procedural History and Jurisdiction

On April 5, 2023, Palmetto GBA, a Medicare administrative contractor (MAC), notified Petitioner of its initial determination to revoke Petitioner’s Medicare enrollment and billing privileges effective December 30, 2022, and to impose a three-year reenrollment bar effective 30 days from the postmark date of the notice.² The MAC cited 42 C.F.R. §§ 424.535(a)(5) and (9) as authority for the revocation and alleged it was determined, based on two on-site reviews, that Petitioner was no longer operating at 8700 Commerce Park Drive, Suite 208, Houston, TX 77036, and that Petitioner failed to notify CMS of a change of practice location as required by 42 C.F.R. § 424.516. CMS Exhibit (Ex.) 1 at 73-75.

Petitioner requested reconsideration by letter dated April 19, 2023. CMS Ex. 1 at 8-9. A CMS hearing officer issued a reconsidered determination on September 27, 2023. CMS Ex. 1 at 1-7. The hearing officer upheld the revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(5) and (9), concluding that Petitioner was no longer operational at the address on file with CMS and Petitioner did not report its change of practice location to CMS as required by 42 C.F.R. § 424.516(e)(2). The hearing officer also concluded that the duration of the three-year bar to reenrollment was appropriate. CMS Ex. 1 at 3-4.

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Petitioner requested a hearing before an administrative law judge (ALJ) on November 27, 2023 (RFH). The case was assigned to me, and an Acknowledgment Letter and Standing Order were issued on November 28, 2023.

On December 26, 2023, CMS filed a motion for summary judgment and prehearing brief (CMS Br.) with CMS Ex. 1. On February 2, 2024, Petitioner filed a response to the CMS motion (P. Br.), with a copy of the reconsidered determination and a notice appointing a representative. Petitioner did not object to my consideration of CMS Ex. 1, and it is admitted as evidence. On February 12, 2024, CMS waived filing a reply brief.

II. Discussion

A. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B. Administration of the Part B program is through the MACs. Act § 1842(a) (42 U.S.C. § 1395u(a)). Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.³ Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). Petitioner, a home health agency operating as a hospice, is a provider under the Act. Act § 1861(m), (u), (dd)(2) (42 U.S.C. § 1395x(m), (u), (dd)(2)); 42 C.F.R. § 424.502.

The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for enrolling providers and suppliers in Medicare, including the requirement to provide the right to a hearing and judicial review of certain enrollment determinations, such as revocation of enrollment and billing privileges. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505, providers such as Petitioner must be issued a National Provider Identifier (NPI) and be enrolled in the Medicare program and granted billing privileges to be eligible to receive payment for

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services rendered to a Medicare-eligible beneficiary from either Medicare or directly from the beneficiary.⁴

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS. 42 C.F.R. § 424.535. CMS or a MAC may revoke an enrolled provider or supplier’s Medicare enrollment and billing privileges and any related provider or supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535. The MAC cited 42 C.F.R. §§ 424.535(a)(5) and (9) as authority for revocation in this case. CMS Ex. 1 at 3-4, 73.

Pursuant to 42 C.F.R. § 424.535(a)(5)(i), CMS may revoke a provider’s enrollment and billing privileges if CMS determines, upon on-site review, that the supplier is no longer operational to furnish Medicare-covered items or services. Pursuant to 42 C.F.R. § 424.535(a)(5)(ii), CMS may revoke if a provider has otherwise failed to satisfy any of the Medicare enrollment requirements. Pursuant to 42 C.F.R. § 424.535(a)(9), CMS may revoke a provider’s enrollment and billing privileges if the provider did not comply with

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the reporting requirements specified in 42 C.F.R. § 424.516(e)(2), which require that providers like Petitioner report to CMS within 90 days any change such as a change in practice location.⁵

Generally, when CMS revokes a provider’s Medicare billing privileges for not complying with enrollment requirements, the revocation is effective 30 days after CMS or its contractor mails notice of its determination to the supplier. 42 C.F.R. § 424.535(g). However, when CMS revokes a provider’s billing privileges because the provider’s “practice location” is not operational, the revocation is effective as of the date the provider’s practice location was no longer operational. 42 C.F.R. § 424.535(g). After a provider’s Medicare enrollment and billing privileges are revoked, the provider is generally barred from reenrolling in the Medicare program for one to ten years. 42 C.F.R. § 424.535(c).

A provider whose enrollment and billing privileges have been revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498. A provider submits a written request for reconsideration to CMS or its contractor. 42 C.F.R. § 498.22(a). CMS or its contractor must give notice of its reconsidered determination to the provider, giving the reasons for its determination and specifying the conditions or requirements the provider failed to meet, and advising the provider of its right to an ALJ hearing. 42 C.F.R. § 498.25. If the decision on reconsideration is unfavorable to the provider, the provider has the right to request a hearing by an ALJ and further review by the Board. Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), 498.5(l)(2). CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied. 42 C.F.R. § 498.5(l)(2). A hearing on the record, also known as an oral hearing, is required under the Act. Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004). The provider bears the burden to demonstrate that it meets enrollment requirements with documents and records. 42 C.F.R. § 424.545(c). The reconsidered determination is the determination subject to my review. Neb Grp. of Ariz. LLC, DAB No. 2573 at 7.

B. Issues

Whether there was a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges.

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

My conclusions of law are set forth in bold followed by the pertinent findings of undisputed fact and analysis.

1. Decision in this case on partial summary judgment is appropriate.

A provider or supplier denied enrollment in Medicare or whose enrollment has been revoked has a right to a hearing and judicial review pursuant to section 1866(h)(1) and (j) of the Act and 42 C.F.R. §§ 498.3(b)(1), (5), (6), (8), (15), (17); 498.5. A hearing on the record, also known as an oral hearing, is required under the Act. Act §§ 205(b), 1866 (h)(1), (j)(8); Crestview, 373 F.3d at 748-51. A party may waive appearance at an oral hearing but must do so affirmatively in writing. 42 C.F.R. § 498.66. In this case, Petitioner has not waived the right to oral hearing or otherwise consented to a decision based only upon the documentary evidence or pleadings. Accordingly, disposition on the written record alone is not permissible, unless the CMS motion for summary judgment has merit.

Summary judgment is not automatic upon request but is limited to certain specific conditions. The Secretary’s regulations at 42 C.F.R. pt. 498 that establish the procedure to be followed in adjudicating Petitioner’s case do not establish a summary judgment procedure or recognize such a procedure. However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. See, e.g., Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997). The Board also has recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. Pro. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Standing Order ¶¶ D and G. The parties were given notice by my Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. Pro. 56 will be applied. The parties were also advised that when I consider a motion for summary judgment, a fact alleged and not specifically denied may be accepted as true and any evidence will be considered admissible and true, unless specific objection is made to the admissibility or accuracy of the evidence. Standing Order ¶ G.

Summary judgment is appropriate when there is no genuine dispute as to any material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all

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reasonable inferences in that party’s favor. The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven. Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 4 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 4 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differ from that used in resolving a case after a hearing. On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record. Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true. Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009). The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden. Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010). The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden. However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498. Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 Fed. App’x 181 (6th Cir. 2005).

My review is limited to determining whether CMS or the MAC had a basis for revocation of Petitioner’s Medicare enrollment and billing privileges. If I conclude that there was a basis for revocation, I may not review the exercise of discretion by CMS or the MAC to revoke. Dinesh Patel, M.D., DAB No. 2551 at 11 (2013); Fady Fayad, M.D., DAB No. 2266 at 16 (2009), aff'd, Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 16-17, 19 (2009), aff'd, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010). The effective date of revocation is determined pursuant to 42 C.F.R. § 424.535(g) and is controlled by the basis for revocation. If there is a basis for revocation and revocation is imposed, CMS or the MAC must impose a reenrollment bar for a minimum period of one year. 42 C.F.R. § 424.535(c)(1)(i). If CMS or the MAC impose a reenrollment bar of more than one year, the duration of reenrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and not subject to ALJ review. Vijendra Dave, M.D., DAB No. 2672 at 10-11 (2016).

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In this case, the MAC revoked Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(5)(i) because the MAC concluded Petitioner was not operational on December 30, 2022, when a site inspection was attempted. CMS Ex. 1 at 3, 73. The MAC also revoked pursuant to 42 C.F.R. § 424.535(a)(9) because Petitioner failed to report a change of address within 90 days of the changes as required by 42 C.F.R. § 424.516(e)(2). CMS Ex. 1 at 3-4, 73. Whether there were bases for revocation under 42 C.F.R. § 424.535(a)(5)(i) or (9), is subject to my review. Whether there is a basis for revocation is the only issue I may decide. I may not review whether CMS and the MAC properly exercised their discretion to revoke if there is a basis for revocation; whether there should be a reenrollment bar if there was a basis for the revocation; and whether the duration of the reenrollment bar is correct or reasonable. If I conclude that there was a basis for revocation, the effective date of revocation is dictated by 42 C.F.R. § 424.535(g).

There is no genuine dispute as to any material fact related to the existence of a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(9). Petitioner does not dispute that CMS was not notified of Petitioner’s change of address within 90 days of the change. RFH; P. Br.; CMS Ex. 1 at 8-9. Therefore, I conclude that summary judgment for CMS is appropriate regarding revocation pursuant to 42 C.F.R. § 424.535(a)(9). However, CMS is entitled to only partial summary judgment. I cannot conclude on summary judgment that there is a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(5)(i) because, as discussed in the analysis section of this decision, there are genuine disputes of material fact regarding whether Petitioner was operational on December 30, 2022 and January 3, 2023, when site inspections were attempted. Because I conclude that there is a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(9), I must uphold the revocation. The effective date of the revocation under 42 C.F.R. § 424.535(g) is May 5, 2023, 30 days after the date of the postmark of the MAC’s April 5, 2023 initial determination to revoke.⁶ Because there is a basis for revocation, a reenrollment bar of a minimum of one year is required by the regulation and the MAC determination to extend that reenrollment bar to three years is not subject to my review. 42 C.F.R. § 424.535(c)(1)(i); Vijendra Dave, DAB No. 2672 at 10-11.

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2. Petitioner was required to report to CMS any change in practice location within 90 days of the change. 42 C.F.R. § 424.516(e)(2).
3. There is a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) because Petitioner failed to report a change of practice location to CMS within 90 days as required by 42 C.F.R. § 424.516(e)(2).
4. Revocation of Petitioner’s Medicare enrollment and billing privileges was effective May 5, 2023, 30 days after the postmark date of the April 5, 2023 MAC notice of the initial determination to revoke. 42 C.F.R. § 424.535(g).
5. I have no authority to review the duration of the bar to reenrollment.

a. Undisputed Facts

The material facts relevant to revocation pursuant to 42 C.F.R. § 424.535(a)(9) for violation of 42 C.F.R. § 424.516(e)(2) are not disputed.

1. Petitioner’s Enrollment Record Summary generated on January 24, 2023, shows that in 2021 Petitioner enrolled in Medicare as a home health agency providing hospice services. Petitioner’s practice location was 8700 Commerce Park Drive, Suite 208, Houston, Texas with an effective date of March 29, 2021. CMS Ex. 1 at 82-84.

2. On December 30, 2022 and January 3, 2023, a site inspector attempted to conduct an inspection of Petitioner’s practice location at 8700 Commerce Park Drive, Suite 208, Houston, Texas. The inspector reported that he found on both visits that Petitioner was not open for business, no staff were present, no customers were present, and Petitioner did not appear to be operating at that location. CMS Ex. 1 at 76-77. Photographs taken by the inspector show the exterior of the building and a closed door with a sign listing Petitioner as the occupant of Suite 208C. CMS Ex. 1 at 78-81. The inspector stated that the door was locked and that he knocked several times with no answer. CMS Ex. 1 at 79.

3. Petitioner does not dispute that when the site inspections occurred on December 30, 2022 and January 3, 2023, it was not open or accessible at 8700 Commerce Park Dr., Suite 208, Houston, Texas. RFH; P. Br.; CMS Ex. 1 at 8-9.

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4. Petitioner asserts in its reconsideration request that it changed its practice location from Suite 208 to Suite 135 in the same building located at 8700 Commerce Park Drive in Houston, Texas. CMS Ex. 1 at 8. Petitioner submitted with its reconsideration request a copy of its lease agreement that shows that Petitioner leased 8700 Commerce Park Drive, Suite 135, Houston, Texas for a one-year term with a lease commencement date of January 1, 2023. The lease was signed by Petitioner’s owner on January 5, 2023, and by the landlord on January 6, 2023. CMS Ex. 1 at 10. I note that the first attempt to inspect occurred on December 30, 2022, which was a Friday. The second attempt to inspect occurred on January 3, 2023, which was a Tuesday. CMS Ex. 1 at 76. Accepting Petitioner’s assertions of fact and the evidence as true and drawing all favorable inferences for Petitioner on summary judgment as I must, there is a genuine dispute of fact regarding whether Petitioner had moved or was in process of moving from 8700 Commerce Park Drive, Suite 208 to 8700 Commerce Park Drive, Suite 135 and was operational in Suite 135 by December 30, 2022 and on January 3, 2023. The potential conflict between the lease inception date and the first inspection date cannot be resolved on summary judgment. Rather a hearing would be necessary to receive testimony followed by weighing the credibility of the testimony and the documentary evidence.

5. For purposes of summary judgment, I accept as true the assertion of Petitioner’s owner that Petitioner moved its operation to 8700 Commerce Park Drive, Suite 135, and I infer favorably for Petitioner that the move occurred on or about December 30, 2022.

6. The 90th day after December 30, 2022, was March 30, 2023. The 90th day after the second inspection on January 3, 2023, was April 3, 2023.

7. Petitioner concedes that it failed to give CMS or the MAC timely notice of its change of address from 8700 Commerce Park Drive, Suite 208 to 8700 Commerce Park Drive, Suite 135. CMS Ex. 1 at 8; RFH; P. Br.

b. Analysis

I conclude based on the undisputed facts, drawing all favorable inferences for Petitioner, that Petitioner moved its business operation from 8700 Commerce Park Drive, Suite 208 (the address on file with CMS) to 8700 Commerce Park Drive, Suite 135. The move occurred on or about December 30, 2022. Petitioner was required by 42 C.F.R. § 424.516(e)(2) to notify CMS of the change of address within 90 days of the change. Petitioner failed to give CMS the required notice. Accordingly, there was a basis for revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9).

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I conclude that there are genuine disputes of material fact related to whether Petitioner was operational at 8700 Commerce Park Drive, Suite 208 (the address on file with CMS) to 8700 Commerce Park Drive, Suite 135 (the new address) at the time of the attempted site inspections on December 30, 2022 and January 3, 2023. In OC Housecalls, Inc., an appellate panel of the Board opined that it is immaterial that a provider or supplier may be operating at a location other than that on file with CMS when a site inspection is conducted, finding the ALJ in that case erred by denying summary judgment because the ALJ concluded there was a dispute as to whether that petitioner was operational at another location. DAB No. 2893 at 10-11 (2018). In this case, Petitioner’s defense is that it was operating at a location other than that on file with CMS, i.e., its new address for which it was not yet required to give notice to CMS. Petitioner also argues that it provides hospice services at patients’ residences rather than in an office setting. RFH; P. Br. at 1.

The term “operational” is defined by regulation to mean “the provider or supplier has a qualified physical practice location, is open to the public for the purpose of providing health care related services, is prepared to submit valid Medicare claims, and is properly staffed, equipped, and stocked (as applicable, based on the type of facility or organization, provider or supplier specialty, or the services or items being rendered), to furnish these items or services.” 42 C.F.R. § 424.502. This case illustrates that not all elements of the definition need be satisfied; for example, I accept as true for purposes of summary judgment that Petitioner provides hospice services to individuals at their residence rather than Petitioner’s office. While Petitioner must have a physical practice location to satisfy the operational requirement, Petitioner does not provide health care related services at its physical practice location. There is no allegation by CMS that Petitioner was not prepared to submit valid Medicare claims or that Petitioner did not have the staff and equipment necessary to provide hospice services, whether that staff and equipment was at Petitioner’s physical practice location or out on assignment at patient’s residences. The regulation does not specify that a supplier can be operational only at a practice location on file with CMS. But the Board has interpreted the regulation as establishing such a requirement. OC Housecalls, DAB No. 2893 at 10. According to the Board, “a Medicare provider or supplier must be operational at its practice location of record upon onsite review, even where the supplier is mobile,” and “[i]t is no defense that a provider or supplier may be operating elsewhere other than at their qualified physical practice location at the time of onsite review . . . .” Id. The Board’s approach to interpreting 42 C.F.R. § 424.502’s definition of “operational” and adding a requirement to the definition that the practice location be one on file with CMS without notice and comment rulemaking is questionable. The Supreme Court has clarified that under sections 1871(a)(1)-(2) and (b) of the Act (42 U.S.C. § 1395hh(a)(1)-(2), (b)), the Secretary must use notice and comment rulemaking under the Administrative Procedure Act, 5 U.S.C. § 553, in order to impose substantive requirements upon regulated entities that are intended to have the force and effect of law. Act § 1871(a)(2); Azar v. Allina Health Servs., 587 U.S. 566, 139 S. Ct. 1804 (2019). The Board’s additional requirement

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that a provider or supplier must be operational at the place on file with CMS appears to be a substantive requirement rather than being merely interpretive. CMS has shown itself capable of promulgating regulations that explicitly detail specific requirements for physical practice locations of certain types of suppliers. For example, Supplier Standard 7 for suppliers of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) lists precise and exacting standards for physical facilities of DMEPOS suppliers. 42 C.F.R. § 424.57(c)(7).⁷ CMS has not imposed such specific requirements for other provider and supplier types not subject to the supplier standards.

According to the Board’s decision in OC Housecalls, the fact that a provider or supplier is operational, whether in some physical office space, a mobile unit, or at patient’s residence, is insufficient to satisfy the definition of operational unless the provider or supplier is operational at an address on record with CMS. However, a different appellate panel of the Board in Adora Healthcare Servs., Inc., DAB No. 2714 (2016) recognized that the fact a provider or supplier is not operational at the site on record with CMS, is insufficient alone to constitute a prima facie showing the provider or supplier is not operational. The Board in Adora commented that the regulations are not reasonably read to provide that a provider or supplier “ceases to be operational simply because it moves its practice location.” Id. at 7. The Board concluded that CMS could not make a prima facie showing that a provider or supplier was not operational and that there was a basis for revocation under 42 C.F.R. § 424.535(a)(5)(i), based only on a site inspection conducted during the period when the provider or supplier could report a change of address. Id. at 5. In this case like Adora, CMS relies on the site inspections conducted on December 30, 2022 and January 3, 2023. I accept as true for purposes of summary judgment Petitioner’s assertions the site inspections occurred during the 90-day period Petitioner had to report its change of address. Therefore, at this stage in the proceedings, applying the Board’s decision and rationale in Adora, CMS cannot make a prima facie showing Petitioner was not operational at its new address when the site inspections occurred based only on the site inspections. A hearing would be required to permit the presentation of evidence to determine whether Petitioner was operational at its new

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practice location. Judging the credibility of the evidence cannot occur on summary judgment. Accordingly, summary judgment related to 42 C.F.R. § 424.535(a)(5)(i) is simply not appropriate.

However, there is no dispute that Petitioner failed to provide CMS notice of its change of address of its practice location within 90 days as required by 42 C.F.R. § 424.516(e)(2). A similar situation was presented in Health Connect at Home, DAB No. 2419. In that case, CMS had also revoked because it determined the petitioner was not operational based on a site inspection and failed to report a change of address of its practice location. The Board stated it would not reach the issue of “whether a provider must always be operational at the addresses on file with CMS.”Health Connect, DAB No. 2419 at 7. Rather the Board, commenting that CMS needs only one basis for revocation, upheld revocation based on the provider’s failure to timely report the change in its practice location. Id.

CMS needs only one basis for revocation. There is no dispute Petitioner failed to report its change of practice location within 90 days. Accordingly, there is a basis for revocation of Petitioner Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) based on violation of the reporting requirement of 42 C.F.R. § 424.516(e)(2). Having found that there is a basis for revocation, I have no authority to review the exercise of discretion by CMS to revoke Petitioner’s Medicare enrollment and billing privileges. Dinesh Patel, M.D., DAB No. 2551 at 11; Fady Fayad, M.D., DAB No. 2266 at 16; Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 16-17, 19.

The effective date of revocation is directed by 42 C.F.R. § 424.535(g). For revocation under 42 C.F.R. § 424.535(a)(9), revocation is effective May 5, 2023, 30 days from the April 5, 2023 postmark date of the MAC’s notice of the initial determination to revoke. 42 C.F.R. § 424.535(g).

When a provider’s Medicare enrollment and billing privileges are revoked, the provider is barred from reenrolling in the Medicare program for one to 10 years. 42 C.F.R. § 424.535(c). There is no statutory or regulatory language establishing a right to review of the duration of the reenrollment bar CMS imposes. Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.535(c), 424.545, 498.3(b), 498.5. The Board has held that the duration of a revoked provider’s reenrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and not subject to ALJ review. Vijendra Dave, DAB No. 2672 at 10-11.

To the extent that Petitioner’s arguments may be construed as a request for equitable relief, I have no authority to grant such relief. US Ultrasound, DAB No. 2302 at 8 (2010). I am also required to follow the Act and regulations and have no authority to declare statutes or regulations invalid. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

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III. Conclusion

For the foregoing reasons, Petitioner’s Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(9). The effective date of revocation is May 5, 2023.

Endnotes

¹ Citations are to the 2022 revision of the Code of Federal Regulation (C.F.R.), which were in effect at the time of the initial determination, unless otherwise stated. Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018). Only the reconsidered determination is subject to my review in a provider supplier enrollment case such as this. Neb Grp. of Ariz. LLC, DAB No. 2573 at 9 (2014).

² Petitioner has not disputed that the date of the notice and the postmark date are April 5, 2023.

³ A “supplier” furnishes items or services under Medicare and includes physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.” Act § 1861(d) (42 U.S.C. § 1395x(d)). A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) (42 U.S.C. § 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(e)) of the Act. Act § 1861(u) (42 U.S.C. § 1395x(u)). The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.

⁴ The NPI is a unique 10-digit identifier obtained by providers and suppliers to identify themselves in the Medicare system. 42 C.F.R. § 424.502; 45 C.F.R. §§ 162.404-.414; 69 Fed. Reg. 3434 (Jan. 23, 2004). A single NPI is issued to a health care provider or supplier. 45 C.F.R. § 162.408(a).

CMS Pub. 100-08, Medicare Program Integrity Manual (MPIM), chap. 10, § 10.1.2 provides that the Provider Transaction Access Number (PTAN) is the Medicare identification number issued to providers and suppliers. A PTAN is assigned by a MAC. A provider or supplier may be issued more than one PTAN, but the MAC only assigns the minimum number of PTANs to ensure proper payment is made by Medicare. MPIM, chap. 10, § 10.6.10B. The PTAN is not a Medicare billing number but reflects that a provider or supplier has been granted Medicare billing privileges for care and services rendered within the jurisdiction of a MAC.

The NPI must be listed on all Medicare claims. The PTAN is used to authenticate the provider or supplier when communicating with Medicare. A provider or supplier should have only one NPI but multiple PTANs may be issued based on the provider’s or supplier’s relationships with more than one medical group or practice or based on the delivery of care and services in the jurisdictions of multiple MACs. MLN (Medicare Learning Network) Matters, No. SE1216 (rev.) Sep. 5, 2014, available at https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/SE1216.pdf. This MLN article is not substantive evidence that effects the decision in this case and is cited only to provide explanatory information.

⁵ The regulation was amended effective January 1, 2024, to require that a change in practice location be reported within 30 days. 88 Fed. Reg. 78,818, 79,275, 79,541 (Nov. 16, 2023). The change has no impact on this case.

⁶ I characterize the ruling on summary judgment as only partial summary judgment because the decision on summary judgment is not fully favorable to CMS. The decision is not fully favorable because the effective date of revocation by operation of 42 C.F.R. § 424.535(g) is May 5, 2023, rather than December 30, 2022, as it would be if I concluded that there was a basis for revocation under 42 C.F.R. § 424.535(a)(5)(i).

⁷ The Board’s broad definition of operational also does not seem to recognize that providers and suppliers need not be open and accessible 24 hours each day, seven days per week, and 365 days per year. Providers such as Petitioner are not required by any regulation to be open certain hours or days. Posted hours of operation are not required for most provider and supplier types. No regulation prevents the provider from closing for lunch, opening late, closing early, or being closed for the day or week, with no notice to the public posted on the door, website or elsewhere. More specifically, the regulations do not specify that a practice or business location be open and accessible the day and time an inspector shows up.