Angela Johnson, DAB CR6584 (2024)

DECISION

The “Order Dismissing Case for Abandonment” issued August 30, 2024, is vacated and this decision on the merits is issued. 

The Medicare enrollment application of Petitioner, Angela Johnson, is denied pursuant to 42 C.F.R. § 424.530(a)(1).¹

I. Background

Palmetto GBA, a Medicare administrative contractor (MAC) for the Centers for Medicare & Medicaid Services (CMS), notified Petitioner by letter dated February 16, 2024, that her² application to enroll in Medicare was denied pursuant to 42 C.F.R. § 424.530(a)(1).  

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The MAC advised Petitioner that she did not qualify as a provider of services or a supplier of medical and health services as there is no statutory or regulatory authority for a phlebotomist to enroll in and receive payments from the Medicare program.  The MAC advised Petitioner that she could file a corrective action plan or request reconsideration.  CMS Exhibit (Ex.) 1 at 17-22.  

Petitioner requested reconsideration on April 2, 2024.  CMS Ex. 1 at 5-16.  On April 15, 2024, the MAC issued a reconsidered determination upholding the denial of Petitioner’s enrollment pursuant to 42 C.F.R. § 424.530(a)(1).  The MAC stated that Petitioner did not meet requirements to enroll in Medicare and that there was no error in the February 16, 2024 initial determination denying Petitioner’s enrollment.  CMS Ex. 1 at 1-4. 

On June 15, 2024, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ).  On June 17, 2024, the case was assigned to me for hearing and decision, and an Acknowledgment Letter and Standing Order (Standing Order) were issued. 

On July 17, 2024, CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 4.  Petitioner failed to file her prehearing exchange on August 16, 2024, as required by the Standing Order.  Therefore, on August 19, 2024, I ordered Petitioner to show cause no later than August 29, 2024, why this case should not be dismissed for abandonment.  I dismissed Petitioner’s case on August 30, 2024, because Petitioner failed to respond to the order to show cause.  On September 23, 2024, I learned from Departmental Appeals Board (Board) managers that prior to the dismissal Petitioner sent several emails to an email address to which my attorney advisor and I have no access, and which is not to be used for case-related matters.  In her emails, Petitioner attempted to inform Board staff that she was unable to access her Departmental Appeals Board Electronic Filing System (DAB E-File) account.  She requested help resetting her password to access her case record and respond to my order to show cause.  Unfortunately, Petitioner failed to contact my attorney advisor as required by the Standing Order, which may have avoided the dismissal of this case.  To avoid any prejudice to Petitioner, on September 23, 2024, I granted Petitioner the full 60 days allowed by the regulations (until November 22, 2024) for Petitioner to move to vacate the dismissal of this case under 42 C.F.R. § 498.72. 

On November 10, 2024, Petitioner filed a motion to vacate the dismissal with documents which I treat as Petitioner’s exhibits (P. Exs.) 1 through 3 (DAB E-File ## 16, 16_a, and 16_b, respectively).  Petitioner also requested summary judgment in her favor.  Petitioner’s motion to vacate, request for summary judgment, and supporting documents show she did not abandon her request for hearing.  On December 2, 2024, CMS waived filing a response to Petitioner’s motion to vacate and for summary judgment.  Therefore, vacation of the August 30, 2024 Order dismissing this case and proceeding on the merits is appropriate. 

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Petitioner argues generally that some, or all, of the information in CMS Exs. 1 through 4 is false or incorrect.  P. Ex. 1 (DAB E-File # 16) at 1-2, 5, 7.  Pursuant to 42 C.F.R. § 498.60(b)(1), I am to receive as evidence any evidence that is relevant and material to the issues before me.  Relevant evidence is any evidence that has a tendency to make a fact of consequence to the issue I may decide more or less probable than without the evidence.  Fed. R. Evid. 401.  I conclude that CMS Exs. 1 through 4 contain relevant and material evidence.  Accordingly, CMS Exs. 1 through 4 are admitted and considered.  CMS filed no objection to my consideration of P. Exs. 1 through 3 and waived filing a reply to Petitioner’s arguments.  I conclude that P. Exs. 1 through 3 contain relevant and material evidence and they are admitted and considered.  Petitioner filed multiple documents with her request for hearing (DAB E-File ## 1_a-c5).  All documents filed by Petitioner, including her request for hearing, are carefully considered in deciding this case, even though the documents are not specifically cited in this decision, except for DAB E-File ## 1_g through 1_c5 which are not relevant as they have no tendency to make a fact of consequence to an issue I may decide more or less probable.³ 

II. Discussion

1. A. Applicable Law

Section 1831 of the Social Security Act (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.  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  A “supplier” furnishes 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. 

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§ 1395x(u)).  There is no dispute that Petitioner does not meet the definition of a provider of services under section 1861(d) of the Act. 

Pursuant to 42 C.F.R. § 424.505, a supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.  The issue in this case is whether Petitioner meets the requirements of the Act and regulations to enroll in Medicare as a supplier and be granted billing privileges so that she may be paid by Medicare for care or services she renders to Medicare-eligible beneficiaries. 

The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for the enrollment in Medicare of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations, such as denial of enrollment and revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)). 

The Secretary has delegated the authority to accept or deny enrollment applications to CMS, which administers the program through the MACs.  42 C.F.R. § 424.530.  Pursuant to the Secretary’s regulations, CMS may deny a provider’s or supplier’s enrollment application for any of the reasons set out in 42 C.F.R. § 424.530(a).  In this case, the MAC, acting on behalf of CMS, denied Petitioner’s application for Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.530(a)(1) because the MAC determined that Petitioner did not meet the requirements to enroll as a supplier. 

A prospective supplier whose enrollment application has been denied may request reconsideration and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. § 424.545(a).  A prospective supplier submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a), (b).  CMS or its contractor must give notice of its reconsidered determination to the prospective supplier, giving the reasons for its determination, specifying the conditions or requirements the prospective supplier failed to meet, and advising of the right to an ALJ hearing.  42 C.F.R. § 498.25(a).  If the decision on reconsideration is unfavorable to the prospective supplier, the prospective supplier 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.  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 prospective supplier bears the burden to demonstrate that the supplier meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c). 

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1. B. Issues
   • Whether summary judgment is appropriate; and
   • Whether there was a basis for the denial of Petitioner’s application to enroll in the Medicare program.
2. C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold text followed by my findings of fact and analysis. 

1. 1. Summary judgment is appropriate.

A supplier, such as Petitioner, denied enrollment in Medicare and billing privileges, has a right to a hearing and judicial review.  A hearing on the record before an ALJ is required under the Act.  Act §§ 205(b), 1866(h)(1), (j); 42 C.F.R. §§ 498.3(b)(17), 498.5(l); 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.  Petitioner has not waived an oral hearing. 

The parties have filed cross-motions for summary judgment.  Summary judgment is not automatic but is limited to certain specific conditions.  The procedures applicable to the adjudication of this case are at 42 C.F.R. pt. 498.  The regulations do not establish or recognize a summary judgment 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 has also 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.  The parties were given notice by the Standing 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.  Standing Order ¶¶ D, G. 

Summary judgment is appropriate when there is no genuine dispute as to any issue of 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 reasonable inferences in that party’s favor.  The party requesting summary 

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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 differs 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). 

I conclude that this case must be resolved against Petitioner as a matter of law.  Accordingly, I conclude that summary judgment is appropriate. 

2. 2. Petitioner does not meet the requirements to enroll in Medicare and to be granted billing privileges.
3. 3. There is a basis for denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(1).
4. 4. The issue is whether there is a basis for denial of Petitioner’s Medicare enrollment and, if there is a basis for denial of enrollment, my jurisdiction does not extend to reviewing whether CMS or the MAC properly exercised discretion to deny Petitioner’s Medicare enrollment application.
5. 5. CMS is not estopped from denying Petitioner’s enrollment.
6. 6. I have no authority to grant Petitioner equitable relief as I am bound to follow the provisions of the Act and regulations.

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Petitioner asserts, and I accept as true for purposes of summary judgment, that she has provided services for Medicare-eligible beneficiaries for six years as: 

• A phlebotomist.  RFH at 3; P. Ex. 1 at 1, 23, 49, 50 (DAB E-File # 16); CMS Ex. 1 at 7, 33, 35.
• A medical home health care practitioner.  RFH at 3; P. Ex. 1 at 1-3, 23, 49, 51 (DAB E-File # 16); CMS Ex. 1 at 7, 33, 51.
• A licensed cosmetologist/coiffeur/esthetician.  P. Ex. 1 at 1, 23, 54 (DAB E-File # 16); P. Ex. 2 at 13 (DAB E-File # 16_a); P. Ex. 3 at 3 (DAB E-File # 16_b); CMS Ex. 1 at 7, 38, 55, 111.  

Petitioner argues that unqualified family members can be paid as home health care providers and so she should also be eligible to be paid by Medicare or Medicaid.  P. Ex. 1 at 3 (DAB E-File # 16).  She argues that she should be treated as specialized medical staff/nursing staff.  P. Ex. 1 at 3 (DAB E-File # 16).  In her enrollment application, she checked the box for a Clinical Nurse Specialist (CNS) but added the hand-written notation that she was a nurse specialist as a phlebotomist that could do venipuncture.  Petitioner’s assertion is not that she is a CNS, but that she has experience and performs services like a CNS.  She also checked the box for undefined non-physician practitioner specialty with the hand-written note that her specialty was phlebotomy.  P. Ex. 1 at 50 (DAB E-File # 16); P. Ex. 2 at 49 (DAB E-File # 16_a); CMS Ex. 1 at 34, 92.  She makes a legal argument asserting that Medicare/Medicaid does not preclude treating a phlebotomist or pathology specialist, which she is, from being enrolled in Medicare and granted Medicare billing privileges as specialized medical or nursing staff.  P. Ex. 1 at 3, 24-25 (DAB E-File # 16); CMS Ex. 1 at 8-9.  I am not required to accept her assertion of law as true for purposes of summary judgment and do not do so.  Petitioner argues, and I accept as true for purposes of summary judgment, that phlebotomists are trained skilled medical professionals who work with and under an order from a physician and engage in a specialized form of nursing.  P. Ex. 1 at 4 (DAB E-File # 16). 

Petitioner’s arguments must be resolved against her as matters of law.  Pursuant to section 1835(a) of the Act, Congress provided that Medicare may only pay for care and services by providers of services eligible under section 1866(a) of the Act, subject to the limitations specified in section 1835 of the Act.  There is no dispute that Petitioner is not a provider of services within the meaning of section 1866(a) of the Act.  Petitioner also does not meet the definition of a provider of services at section 1861(u) of the Act. 

Petitioner also does not meet the requirements of the Act and regulation to enroll as a supplier.  The Board has concluded on facts extraordinarily like those presented in this case that cosmetologists and phlebotomists are simply not eligible to enroll in Medicare as suppliers.  The Board stated that the Act and regulations do not permit one to enroll in 

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Medicare based on a bachelor’s degree in science or business administration or based on licenses in cosmetology, phlebotomy, or venipuncture.  Angela Johnson, DAB No. 3042 at 6-7 (2021).⁴  I find the Board’s rationale in Johnson persuasive.  As the Board did in Johnson, I examine other grounds for rejecting Petitioner’s arguments she is eligible to enroll in Medicare and be granted billing privileges.  Petitioner does not assert that she is a registered nurse, has a master’s degree in a clinical area of nursing, or that she is certified by a national certifying body as a CNS, which are the requirements to be a CNS established by 42 C.F.R. § 410.76(b).  Petitioner’s argument that she has experience and performs services like a CNS is without merit.  “Nothing in the Medicare statute and regulations authorizes the Board [or an ALJ] to ignore, waive, or otherwise make an exception to [limitations Congress imposed on Medicare enrollment] on the ground that Petitioner is professionally competent . . . or because [her] enrollment could benefit Medicare or its beneficiaries.”  Sheldon Pinsky, Ph.D., LICSW, DAB No. 2412 at 3 (2011).  I am “authorized to determine only whether Petitioner has, in fact, met applicable enrollment requirements.”  Id. at 3.  Petitioner also does not assert that she should be able to bill Medicare for the care and services she provides under 42 C.F.R. pt. 410, subpt. B which describes medical and other health services but does not mention phlebotomy, cosmetology, or home health care.  Home health services are addressed in 42 C.F.R. pt. 409, subpt. E.  Petitioner does not assert that she is eligible to enroll in Medicare because the services she provides are through a home health agency as required by 42 C.F.R. § 409.41 or that she meets the other requirements of 42 C.F.R. pt. 409, subpt. E.  

Accordingly, there is a basis for denial of Petitioner’s enrollment and billing privileges pursuant to 42 C.F.R. § 424.530(a)(1).  I have no authority to review the exercise of discretion by CMS or its contractor to deny enrollment if I conclude that there is a basis for such action.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010). 

Petitioner’s arguments could be construed to be that the government is estopped from denying her enrollment.  P. Ex. 1 at 1-5 (DAB E-File # 16).  But as a matter of law, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  There is no evidence suggesting fraud on the part of the MAC or CMS.  Petitioner was issued the National Provider Identifier (NPI) listed in the caption or title of 

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this case.  The NPI is a unique 10-digit identifier obtained by prospective 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).  However, the NPI does not show that a prospective provider or supplier is enrolled in Medicare or has been granted billing privileges.  Pursuant to 42 C.F.R. § 424.505, suppliers must be issued an NPI, enrolled in the Medicare program, and issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.  Therefore, Petitioner was clearly on notice by the regulation that the fact she was issued an NPI was not sufficient to permit her to bill Medicare for care and services she delivered to Medicare-eligible beneficiaries.  Because she had at least constructive notice through the regulation, Petitioner cannot credibly argue she acted in detrimental reliance on being issued an NPI and believing that, on that basis alone, she would be paid by Medicare for care and services.  See Schweiker v. Hansen, 450 U.S. 785, 788 (1981); Heckler v. Cmty Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 59 (1984); Estate of James v. U.S. Dep’t of Agric., 404 F.3d 989, 995 (6th Cir. 2005); Tennessee Dept. of Health & Env’t, DAB No. 1082 (1989); Rosewood Living Ctr., DAB No. 2019 at 8 (2006); Gregory J. Frazer Au.D, Ph.D., DAB No. 3038 at 12 (2021). 

Petitioner’s arguments may also be construed to be a request for equitable relief.  But I have no authority to grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am 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).  Congress specifically limited Medicare enrollment and the granting of Medicare billing privileges to those individuals or entities who meet the requirements to enroll as a provider or supplier.  I am bound by the limitations imposed by Congress as implemented by the Secretary through regulations. 

III. Conclusion

For the foregoing reasons, I conclude that there was a basis to deny Petitioner’s application to enroll in Medicare pursuant to 42 C.F.R. § 424.530(a)(1).  

Endnotes

¹  Citations are to the 2023 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated. 

²  She and her are used throughout this decision because Petitioner indicated no preference. 

³  CMS objected to my consideration of DAB E-File ## 1_g through 1_c5 on grounds that they are not material.  CMS also objected that the photographs are new evidence and Petitioner did not show good cause for failure to submit the photographs with her request for reconsideration as required by 42 C.F.R. § 498.56(e).  While the objection the photographs are new evidence has some merit, the fact the photographs are not relevant precludes any further consideration of the photographs.  CMS Br. at 7-8. 

⁴  The evidence before me is insufficient to determine whether the Petitioner before me was the Petitioner before the Board in 2021.  Therefore, I do not attempt to determine whether the Petitioner before me is bound by the decision of the Board in Johnson, DAB No. 3042 and precluded from relitigating the same issues on essentially the same facts.