Jagannathan Neurosurgical Institute, PLLC, DAB CR6657 (2025)

DECISION

Petitioner, Jagannathan Neurosurgical Institute, PLLC, is a supplier of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS), located in Bay City, Michigan, that participated in the Medicare program.  The Centers for Medicare & Medicaid Services (CMS), through its Medicare administrative contractor, revoked Petitioner’s Medicare enrollment and billing privileges.  For the reasons explained below, I find that there was a legitimate basis for CMS to revoke Petitioner’s Medicare enrollment and billing privileges because it was not in compliance with 42 C.F.R. § 424.57(c)(7)(D)(1). 

I. Background

On February 25, 2023, Petitioner sought to revalidate its Medicare enrollment.  CMS Ex. 2.  In its application, Petitioner provided its address as 4 Columbus Ave., Suite 140, Bay City, MI 48708-6469.  Id. at 2.  Petitioner also listed its hours of operation as “By Appointment Only” and with “no fixed days or hours.”  Id.  Further, Petitioner did not indicate whether or not it filled orders from its own inventory or contracted with another company to fill orders.  Id. at 3. 

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On March 10, 2023, Novitas Solutions (Novitas), a Medicare administrative contractor, informed Petitioner that an unannounced site visit would occur.  CMS Ex. 3.  On April 12, 2023, an inspector conducted an on-site visit of Petitioner’s place of business.  CMS Exs. 4, 13.  At the outset, the inspector observed that Petitioner’s office was not located in Suite 140 but was rather located in Suite 260 at 4 Columbus Ave., Bay City, MI.  CMS Ex. 13 ¶ 2.  Moreover, the inspector observed that Petitioner did not have any hours of operation posted at the location.  CMS Ex. 4 at 1, 3-9; CMS Ex. 13 ¶ 2.  Lastly, the inspector did not see any inventory at the location and was informed by Petitioner’s staff that inventory “was not needed.”  CMS Ex. 4 at 1-2, 12, 14; CMS Ex. 13 ¶ 2. 

On May 31, 2023, CMS received corrections to Petitioner’s application.  CMS Ex. 5.  In the corrected revalidation application, Petitioner listed its address as 4 Columbus Ave., Suite 260, Bay City, MI 48708-6476.  Id. at 2.  Petitioner also updated its hours of operation, which were listed as:  Monday – Friday, 9:00am – 5:00pm, and Saturday and Sunday, “Closed.”  Id. at 3.  Petitioner also stated that it filled orders from its own inventory.  Id. at 3-4. 

In an initial determination notice letter dated July 21, 2023, Novitas revoked Petitioner’s Medicare enrollment effective 30 days from the postmarked date of the letter.  CMS Ex. 6 at 1-3.  Based on the inspector’s findings, Novitas advised Petitioner that it was revoking its Medicare enrollment due to its failure to comply with 42 C.F.R. § 424.57(c)(4) (requiring that a supplier fill orders, fabricates, or fits items from its own inventory or by contracting with another company) and 42 C.F.R. § 424.57(c)(7) (requiring hours of operation be posted).  Id.  Novitas also imposed a one-year reenrollment bar upon Petitioner.  Id. at 1.  

On August 28, 2023, Petitioner submitted a corrective action plan (CAP).  CMS Exs. 7, 8.  On September 1, 2023, Palmetto GBA (Palmetto), another Medicare administrative contractor, dismissed the CAP as untimely filed because it was not received within 35 days of the initial determination.  CMS Ex. 8 at 2.  On September 6, 2023, Petitioner emailed Palmetto an attachment named “Corrective Action” that contained five photographs.  CMS Ex. 9.  On October 19, 2023, Palmetto dismissed the September 6, 2023 submission which it considered a “reconsideration request” as untimely.  CMS Ex. 10 at 2.  However, on November 2, 2023, Palmetto advised Petitioner that the September 6, 2023 “reconsideration request” was incorrectly dismissed.  CMS Ex. 11 at 2.  Because the September 6, 2023 request did not contain a signature from an authorized official, Palmetto requested that Petitioner resubmit the request with a valid signature.  Id.  

Thereafter, on November 7, 2023, Petitioner submitted a timely request for reconsideration of its Medicare enrollment revocation.  CMS Ex. 12.  In support of its request, Petitioner submitted photographs, showing inventory on its shelves.  Id. at 4-11.  Petitioner also stated that the inspector “did not specify that she was there for a DME audit” or “ask to see the inventory.”  Id. at 2.  Petitioner stated that there “was a 

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miscommunication between the Bay City office manager and the auditor and was not indicative of a shortage or lack of inventory on hand.”  Id.  With respect to its hours of operation signage, Petitioner stated that its medical practice has hours of operation posted but that its “DME office is located inside its medical office, [and] the statute does not specify that a separate articulation of DME-specific hours must be listed.”  Id. at 2.  Petitioner has also updated its signage to now show its DME offices hours of operation.  Id. at 2, 13-14.  

On November 20, 2023 Palmetto issued a reconsidered determination.  CMS Ex. 1.  Palmetto issued an unfavorable decision finding that there was no error in the revocation of Petitioner’s Medicare billing privileges.  Id. at 5.  Palmetto noted that Petitioner failed to comply with both the requirements of 42 C.F.R. § 424.57(c)(4) and 42 C.F.R. § 424.57(c)(7) because it failed to provide proof of inventory and did not post its hours of operation.  Id.  

On December 13 2023, Petitioner timely requested a hearing to dispute the reconsidered determination.  Departmental Appeals Board (DAB) Electronic Filing System (E-File) Doc. No. 1.  Petitioner also filed a number of documents with its hearing request.  DAB E-File Doc. No. 1_a.  On December 14, 2023, Administrative Law Judge (ALJ) Bill Thomas was designated to hear and decide this case.  DAB E-File Doc. No. 2.  That same day, the Civil Remedies Division (CRD) acknowledged the hearing request and issued ALJ Thomas’ Standing Pre-hearing Order (Standing Order).  DAB E-File Doc. No. 2_a.  Among other things, the Standing Order instructed the parties to file prehearing exchanges by specified dates.  Id. 

On January 18, 2024, CMS filed a motion for summary judgement and prehearing brief (CMS Br.), along with 13 proposed exhibits (CMS Exs. 1-13), including the written direct testimony of one witness, Christine Jackson.  DAB E-File Doc. Nos. 5_a-5_o.  On February 16, 2024, Petitioner timely filed a response to CMS’s motion for summary judgment and prehearing brief.  DAB E-File Doc. No. 6.  Petitioner also filed three proposed exhibits, including the written direct testimony of two witnesses, Ruth Ferguson and Megan Cardenas.  DAB E-File Doc. No. 6_a-6_e, 7.  

On November 1, 2024, this case was transferred to the undersigned for adjudication.  DAB E-File Doc. No. 8. 

II. Admission of Exhibits

I admit all of CMS’s and Petitioner’s proposed exhibits, without objection.  See Standing Order ¶ 10; CRD Procedures § 14(e).  CMS has also offered the written declaration of one witness and Petitioner has offered the written declarations of two witnesses.  DAB E‑File Doc. No. 5_o, 6_c, 6_d.  All three declarations are admitted into evidence as the individuals’ written direct testimony.  Arkady B. Stern, M.D., DAB No. 2329 at 4 n.4 

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(2010) (“Testimonial evidence that is submitted in written form in lieu of live in-person testimony is not ‘documentary evidence’ within the meaning of 42 C.F.R. § 498.56(e), which requires good cause for submitting new documentary evidence to the ALJ.”). 

III. Decision on the Written Record

Petitioner now appeals the reconsidered determination, and CMS has moved for summary judgment.  Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied. 

In the Standing Order, the parties were instructed to list all proposed witnesses and to submit their written direct testimony.  Standing Order ¶ 11.  The Standing Order further advised that each party has the right to cross-examine any witness for whom the opposing party offers written direct testimony; however, the party must affirmatively indicate that it wishes to do so.  Id. ¶ 12.  The Standing Order also specified that a hearing would be necessary only if a party files admissible, written direct testimony, and, in compliance with the order, the opposing party asks to cross-examine.  Id. ¶ 13.  

As neither party has requested to cross-examine any of the witnesses, an in-person hearing would serve no purpose.  This matter may therefore be decided based on the written record. 

IV. Jurisdiction

This tribunal has the authority to hear and decide this matter.  42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 424.545(a), 498.1(g), 498.3(b)(17), 498.5(l)(2). 

V. Issue

The issue to be decided is whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges. 

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VI. Discussion

1. 1. There was a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.57(c)(7)(i)(D) (Supplier Standard 7).1

In order to receive Medicare payments for items furnished to a Medicare-eligible beneficiary, a supplier of medical equipment and supplies must be enrolled in the Medicare program and must have a supplier number issued by the Secretary of Health and Human Services.  Social Security Act § 1834(j)(1)(A); 42 C.F.R. § 424.505.  To keep that number, the supplier must be operational and must meet the standards set forth in 42 C.F.R. § 424.57(c).  CMS may revoke its billing privileges if it fails to do so. 42 C.F.R. §§ 424.57(c), (e)(1), 424.535(a)(1), (5). 

Following enrollment into the Medicare program, the DMEPOS supplier must continue to remain in compliance with the standards set forth in 42 C.F.R. § 424.57(c).  Under section 424.57(c)(7) (commonly known as Supplier Standard 7), a DMEPOS supplier is required to maintain “a physical facility on an appropriate site.”  An “appropriate site” must be “accessible and staffed during posted hours of operation.”  Id. § 424.57(c)(7)(i)(C).  The supplier’s place of business also must have posted hours of operation.  Id. § 424.57(c)(7)(i)(D). 

In order to verify a supplier’s compliance with the supplier standards and other Medicare requirements, CMS, through its contractors, performs on-site inspections.  42 C.F.R. §§ 424.57(c)(8), 424.517.  CMS is authorized to revoke a DMEPOS supplier’s billing privileges for failure to meet the supplier standards.  Id. § 424.57(e)(1).  The effective date of revocation for noncompliance with any of the section 424.57(c) standards is thirty (30) days after the supplier is sent notice of the revocation.  Id.  

The facts in this case indicate that in its application for Medicare revalidation, Petitioner provided its address as 4 Columbus Ave., Suite 140, Bay City, MI 48708-6469 and listed its hours of operation as “By Appointment Only” and with “no fixed days or hours.”  CMS Ex. 2 at 2-3.  Following receipt of the application, Novitas informed Petitioner that a site visit would occur and that Petitioner’s “hours of operation posted on location must match the information in the Provider Enrollment Chain and Ownership System (PECOS).”  CMS Ex. 3 at 1-2.  However, during an on-site visit, the inspector noted that Petitioner’s place of business did not post any hours of operation.  CMS Ex. 4 at 1, 3-9; CMS Ex. 13 ¶ 2.  The inspector also noted that Petitioner’s place of business was not located in Suite 140, as listed in the application, but in Suite 260.  Id. 

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The facts in this case clearly show that Petitioner violated 42 C.F.R. § 424.57(c)(7)(i)(D) (Supplier Standard 7).  This standard requires that a DMEPOS supplier “[m]aintains a permanent visible sign in plain view and posts hours of operation.  If the supplier’s place of business is located within a building complex, the sign must be visible at the main entrance of the building or the hours can be posted at the entrance of the supplier.”  Id. Moreover, as the Departmental Appeals Board (Board) has determined, “[n]othing in the text of Supplier Standard 7 provides for an exception to the requirement that suppliers must post their hours of operation . . . .  Nor would such an exception be consistent with the purpose of the requirement.”  Marcus Singel, D.P.M., DAB No. 2609 at 6 (2014).  As Petitioner had no visible sign at its facility with posted hours of operation, it did not comply with 42 C.F.R. § 424.57(c)(7)(i)(D). 

In its brief, Petitioner disputes that its hours of operation were not posted at its business location at the time of inspection.  P. Br. at 7-8.  Petitioner states that the building contains “three areas of signage” and that its hours of operation were posted on a “digital sign in the building lobby.”  Id. at 7.  In support of its position, Petitioner has submitted the declaration of Megan Cardenas.  P. Ex. 2.  Megan Cardenas states that “[i]f the auditor had asked to see where [Petitioner’s] hours were posted, I would have directed her to the digital sign in the building lobby.”  Id. ¶ 8. 

Despite these statements regarding the posting of its hours of operation on a digital sign in the building’s lobby, Petitioner concedes that it has no evidence in support of this assertion and that it is “unable to obtain a copy of the sign as it existed on the day of the audit because the building apparently does not save that information.”  See P. Br at 7.  Petitioner also concedes that its hours of operation were not posted on the other two signs, at the time of the inspection, which were located near the second-floor elevator area and outside the door to its suite.  Id.  

Moreover, I accord the site inspector’s testimony greater weight.  The site inspector signed her site inspection report on April 12, 2023, the same day she conducted the inspection, and indicated that the report was made under penalty of perjury.  CMS Ex. 4 at 1.  Furthermore, the site inspector took photographs during the site visit of two different office signs located on the second floor that did not display Petitioner’s hours of operation.  Id. at 4, 5, 9.  The site inspector also took a photograph of the first-floor suite that Petitioner’s application indicated was its place of business.  Id. at 4.  That sign, however, provided the name of a different and unrelated practice.  Id.  Lastly, the site inspector provided written direct testimony under penalty of perjury that confirmed that CMS Exhibit 4 contains her report and photographs of Petitioner’s location and that “she did not observe any posted hours of operation” at Petitioner’s place of business.  CMS Ex. 13 ¶ 2. 

Thus, given that Petitioner failed to post its facility’s hours of operation or otherwise provide any evidence that it did post its hours of operation at the time of the inspection, 

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Petitioner was not in compliance with Supplier Standard 7, and CMS justifiably revoked its billing privileges under section 424.57(e).  Ortho Rehab Designs Prosthetics and Orthotics, Inc., DAB No. 2591 at 6 (2014).  The failure to comply with even one supplier standard is a sufficient basis for revoking a supplier’s billing privileges under section 424.57(e).  See 1866ICPayday.com, DAB No. 2289 at 13 (2009).  The revocation is effective “30 days after the entity is sent notice of the revocation . . . .”  42 C.F.R. § 424.57(e)(1). 

1. 2. Petitioner was not entitled to submit a CAP before having its billing privileges revoked and cannot obtain equitable relief in this forum.

Petitioner states that it corrected the deficiency by adding its posted hours of operation to “all signage” to include its hours of operation following the inspector’s report.  See P. Br. at 7.  Even if true, corrections made after revocation are immaterial to whether the revocation was authorized in the first place.  See Neb Grp. of Ariz. LLC, DAB No. 2573 at 6 (2014); A to Z DME, LLC, DAB No. 2303 at 6-7 (2010) (citing 73 Fed. Reg. 36,448, 36,452 (June 27, 2008)).  

Petitioner further argues that it was entitled to submit a CAP prior to its revocation and that its CAP was not reviewed by the Medicare administrative contractor.  See P. Br. at 8‑9.  However, there is no merit to this argument because section 424.57(e) does not contain any requirement to provide a supplier an opportunity to submit a CAP or correct any deficiencies before the revocation decision is made.  Neb Grp. of Ariz., DAB No. 2573 at 6 n.4.  While I observe that Petitioner avers that its CAP was improperly dismissed as untimely filed and considered a request for reconsideration, CMS’s decision to reject a proposed CAP would not be an initial determination subject to appeal under 42 C.F.R. Part 498, so neither the ALJ nor the Board has jurisdiction to review such a decision.  42 C.F.R. § 405.809; see 42 C.F.R. § 498.3(b) (itemizing all reviewable “initial determinations”); see also DMS Imaging, Inc., DAB No. 2313 at 7-10 (2010) (in an appeal of a section 424.535(a)(1) revocation, the Board agreed the ALJ was not authorized to hear the CMS contractor’s rejection of the supplier’s CAP and refusal to reinstate the supplier’s billing privileges). 

Petitioner’s remaining arguments provide no basis for relief.  Petitioner contends that its “reconsideration request and supporting documents” were never reviewed.  See P. Br. at 8-9.  However, Petitioner has not shown any actual prejudice to its ability to defend this case before me.  In its reconsidered determination and its submissions before me, CMS provided clear statements of why it found that Petitioner failed to comply with 42 C.F.R. § 424.57(c)(7)(i)(D).  Petitioner has submitted responsive arguments and evidence, which I have considered.  To the extent Petitioner argues that revocation of its Medicare enrollment and billing privileges is inequitable under the circumstances presented, CMS’s discretionary act to revoke a provider or supplier is not subject to review based on equity or mitigating circumstances.  Letantia Bussell, M.D., DAB No. 2196 at 12-13 

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(2008).  Rather, “the right to review of CMS’s determination by an [administrative law judge] serves to determine whether CMS had the authority to revoke [the provider’s or supplier’s] Medicare billing privileges, not to substitute the [administrative law judge’s] discretion about whether to revoke.”  Id. at 13 (underscore omitted).  Once CMS establishes a legal basis on which to proceed with a revocation, then the CMS determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  See id. at 10; see also Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009) (if CMS establishes the regulatory elements necessary for revocation, an administrative law judge may not substitute his or her “discretion for that of CMS in determining whether revocation is appropriate under all the circumstances”), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2nd 167 (D. Mass. 2010).  Accordingly, because I have determined that CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges, the regulations do not authorize me to second-guess CMS’s decision to revoke. 

1. 3. I need not decide whether Petitioner violated 42 C.F.R. § 424.57(c)(4).

Novitas’s initial determination also stated that Petitioner’s enrollment and billing privileges were revoked pursuant to 42 C.F.R. § 424.57(c)(4) (requiring that a suppler fill orders, fabricates, or fits items from its own inventory or by contracting with another company).  However, because I have concluded that CMS had a legal basis to revoke Petitioner’s enrollment and billing privileges under 42 C.F.R. § 424.57(c)(7), I do not need to decide whether it had a basis to do so under 42 C.F.R. § 424.57(c)(4) as well.  See 1866ICPayday.com, L.L.C., DAB No. 2289 at 13.  A legal basis to revoke under 42 C.F.R. § 424.57(c)(7) is sufficient to uphold the revocation of Petitioner’s Medicare enrollment and billing privileges and the retroactive effective date of the revocation. 

1. 4. I have no authority to review CMS’s determination to impose a one-year reenrollment bar.

When a supplier’s billing privileges are revoked, it may not participate in the Medicare program until the end of its reenrollment bar, which must be for a minimum of one year but no more than 10 years (except under circumstances that do not apply here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1).  Here, CMS imposed a one-year reenrollment bar.  CMS Ex. 6 at 1. 

I have no authority to review the length of a reenrollment bar.  42 C.F.R. § 498.3(b); Linda Silva, P.A., DAB No. 2966 at 11 (2019); Vijendra Dave, M.D., DAB No. 2672 at 8-12 (2016); accord William Garner, M.D., DAB No. 3026 at 16 (2020); Lilia Gorovits, M.D., P.C., DAB No. 2985 at 15-16 (2020).  I am authorized to review initial determinations “to deny or revoke a provider’s or supplier’s Medicare enrollment in accordance with [section] 424.530 or [section] 424.535 . . . .”  42 C.F.R. § 498.3(b)(17).  As the Board observed in Vijendra Dave, the regulations confer no such right to appeal 

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CMS’s determination concerning the duration of a post-revocation reenrollment bar.  DAB No. 2672 at 10. 

VII. Conclusion

For the reasons explain above, because Petitioner did not comply with the requirements specified in 42 C.F.R. § 424.57(c)(7)(i)(D), I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges.