Suzanne Benny, Ph.D., DAB CR6703 (2025)

DECISION

The Medicare enrollment and billing privileges of Petitioner are revoked pursuant to 42 C.F.R. § 424.535(a)(9) effective November 23, 2022, for noncompliance with 42 C.F.R. § 424.516(d). 

I. Background

CGS Administrators, LLC (CGS), a Medicare administrative contractor (MAC) for the Centers for Medicare & Medicaid Services (CMS), notified Petitioner by letter dated October 24, 2022, of the initial determination to revoke her Medicare enrollment and billing privileges.  The MAC cited 42 C.F.R. § 424.535(a)(9)1 as its authority to revoke based on Petitioner’s noncompliance with the reporting requirement of 42 C.F.R. § 424.516.  The MAC also notified Petitioner that she was subject to a one-year bar to re-enrollment pursuant to 42 C.F.R. § 424.535(c).  CMS Exhibit (Ex.) 4.  Petitioner requested reconsideration of the revocation by letter dated November 28, 2022.  CMS Ex. 8.  In a reconsidered determination dated January 19, 2023, the MAC upheld the

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revocation, citing as authority 42 C.F.R. § 424.535(a)(9) based on Petitioner’s noncompliance with 42 C.F.R. § 424.516(d)(1)(ii).  CMS Ex. 10. 

On March 14, 2023, Petitioner timely filed a request for hearing before an administrative law judge (ALJ).  On March 17, 2023, the case was assigned to Judge Jacinta Alves for hearing and decision, and an Acknowledgment and Prehearing Order (Prehearing Order) were issued at her direction. 2 

On April 23, 2023, CMS filed a combined prehearing brief and motion for summary judgment (CMS Br.) with CMS Exhibits 1 through 10.  On May 26, 2023, Petitioner filed a combined prehearing brief and opposition to CMS’s motion for summary judgment (P. Br.).  Petitioner filed 14 exhibits.  CMS filed a reply brief on June 12, 2023 (CMS Reply). 

Petitioner has not objected to my consideration of CMS Exhibits 1 through 10, and they are admitted as evidence.  CMS objects to my consideration of Petitioner’s exhibits 2, 4, 5, and 14 on grounds that they are new evidence and Petitioner has not shown good cause for offering them for the first time before me as required by 42 C.F.R. § 498.56(e).  Petitioner does not dispute that she did not offer the proposed exhibits with her reconsideration request.  

Petitioner’s Exhibit 2 is a print screen of tracking information from the U.S. Postal Service (USPS), alleging to show that Petitioner did not receive notice of her suspension until September 7, 2022.  Petitioner’s Exhibits 4, 5, and 14 are letters created after CMS’s reconsideration decision.  Petitioner did not provide an explanation as to why the USPS tracking print screen or letters could not have been created before and submitted as part of the reconsideration request.  As a result, I do not admit Petitioner’s Exhibits 2, 4, 5 and 14 into evidence.  

As discussed in more detail hereafter, the sole issue is whether Petitioner timely reported to CMS the temporary suspension of her Ohio license to practice psychology.  The fact that CMS may have been aware of the suspension is not the issue.  The issue is whether Petitioner made the required report of the suspension.  The fact that Petitioner may have had her Ohio license reinstated is also not relevant because the question is whether she reported the temporary suspension of her medical license. 

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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.  Act §§ l835(a) (42 U.S.C. § 1395n(a)), 1842(h)(l) (42 U.S.C. § 1395(u)(h)(l)).  Petitioner, a psychologist, is a supplier.3 

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 revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  

Pursuant to 42 C.F.R. § 424.505, a supplier such as Petitioner 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. 

Suppliers must submit complete, accurate, and truthful responses to all information requested in the enrollment application.  42 C.F.R. § 424.510(d)(2).  Pursuant to 42 C.F.R. §§ 424.502 and 424.510(d)(3), a supplier’s application to enroll in Medicare must be signed by an authorized official, i.e., one with authority to bind the provider or supplier both legally and financially.  The regulation provides that the signature attests to the accuracy of information provided in the application.  The regulation also attests to the fact that the provider or supplier is aware of and abides by all applicable statutes, regulations, and program instructions.  42 C.F.R. § 424.510(d)(3).  Suppliers must meet basic requirements depending on their type of service.  42 C.F.R. §§ 424.505, 424.516, 424.517.  Suppliers are also subject to additional screening requirements depending upon the type of service they provide.  42 C.F.R. § 424.518. 

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or its Medicare contractor may revoke an enrolled supplier’s Medicare enrollment and billing privileges and supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535.  Pursuant to 42 C.F.R. § 424.535(a)(9), CMS may revoke a supplier’s enrollment and billing privileges when a supplier fails to comply

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with the reporting requirements in 42 C.F.R. § 424.516(d).  Those reporting requirements, as discussed in more detail hereafter, provide that physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations must report any adverse legal action or a change in practice location to their Medicare contractor within 30 days.  42 C.F.R. § 424.516(d). 

After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from re-enrolling in the Medicare program for one to ten years.  42 C.F.R. § 424.535(c). 

A supplier whose enrollment and billing privileges have been revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. § 424.545(a).  A supplier 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 supplier, giving the reasons for its determination, specifying the conditions or requirements the supplier failed to meet, and advising of the right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the supplier, the supplier has the right to request a hearing by an ALJ and further review by the Departmental Appeals Board (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 supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c). 

B. Issues

Whether summary judgment is appropriate; and

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

C. Jurisdiction

I have jurisdiction to decide the issue in this case.  42 C.F.R. § 498.3(b)(17). 

D. 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. Summary judgment is appropriate. 

CMS has requested summary judgment.  As noted above, a supplier whose enrollment

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has been revoked has a right to a hearing and judicial review, and a hearing on the record is required under the Act.  Act §§ 205(b), 1866(h)(l); 42 C.F.R. §§ 498.3(b)(8), (17), 498.5; 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 CMS’s motion for summary judgment has merit. 

Summary judgment is not automatic upon request but is limited to certain specific conditions.  The Secretary’s regulations that establish the procedure for adjudicating Petitioner’s case are at 42 C.F.R. pt. 498. 42 C.F.R. §§ 424.545(a), 498.3(b)(17).  The regulations 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 (1997).  

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 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 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (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). 

Petitioner argues that summary judgment is improper under Brian K. Ellefsen, D.O., DAB No. 2626 (2015).  Specifically, Petitioner argues that CMS failed to recognize and properly exercise its discretion to revoke her billing privileges by not considering the factors listed at 42 C.F.R. § 424.525(a)(9), and consequently, that summary judgment is not appropriate as a question of material fact exists. 

However, Ellefsen considers a supplier’s Medicare enrollment denial under 42 C.F.R. § 424.530(a)(3)(i)(B), authorizing denial of enrollment for felony financial crimes within the preceding 10 years, rather than a revocation of billing privileges for failure to report an adverse legal action.  To the extent that it may be persuasive, the Board in Ellefsen took care to clarify that “no regulation provides that CMS must explain its reasons for

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exercising its discretion to deny an application[.]”  Brian K. Ellefsen, D.O., DAB No. 2626 at 9 (2015) (emphasis added).  The Board remanded the case to the ALJ for clarification on whether the contractor

“recognized that its denial of Petitioner’s application was under section 424.530(a)(3) was an action committed to its discretion rather than one mandated by the regulation[;] we are not suggesting that [the contractor] needed to specifically address the factors that Petitioner has asserted establish that allowing him to participate in the Medicare program would be in the best interests of the program or its beneficiaries or give any other explanation of the reasons underlying its exercise of discretion.” 

Id. at 10 (emphasis added).  Ellefsen therefore does not preclude summary judgement in this case. 

There is no genuine dispute as to any material fact pertinent to revocation under 42 C.F.R. § 424.535(a)(9) based on Petitioner’s noncompliance with 42 C.F.R. § 424.516(d).  The undisputed evidence shows that there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges.  Accordingly, summary judgment is appropriate. 

2. There is a basis for revocation of Petitioner’s billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) based on failure to report an adverse legal action within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii). 

3. The effective date of revocation of Petitioner’s Medicare enrollment and billing privileges is November 23, 2022.

a. Facts

The following facts are not disputed and any inferences are drawn in favor of Petitioner. 

On August 25, 2022, Petitioner’s medical license was suspended by the Ohio Board of Psychology.  CMS Ex. 1; P. Ex. 6. 

On November 28, 2022, the state board reinstated Petitioner’s medical license.  P. Br. at 3; P. Ex. 9. 

Petitioner did not notify CMS or the MAC within 30 days of August 25, 2022, that her Ohio license to practice psychology was suspended. 

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The MAC notified Petitioner by letter dated October 24, 2022, of the initial determination to revoke her Medicare enrollment and billing privileges.  CMS Ex. 4. 

b. Analysis

CMS regulates the Medicare enrollment of providers and suppliers.  Act § 1866(j)(1)(A).  It may revoke a supplier’s enrollment in the program if the supplier no longer meets the Medicare enrollment requirements for a supplier of its type.  42 C.F.R. § 424.535(a)(1).  These requirements include complying with federal and state licensing requirements.  42 C.F.R. § 424.516(a)(2); see 42 C.F.R. § 410.20(b) (requiring that a physician be legally authorized to practice by the state in which she functions in order to receive Medicare payments). 

Regulations also allow CMS to revoke a supplier’s enrollment if she does not comply with reporting requirements, including that she report, within 30 days, any adverse legal action or change in enrollment.  42 C.F.R. § 424.535(a)(9); 42 C.F.R. § 424.516(d). 

It is undisputed the Petitioner failed to report the suspension of her medical license, an adverse legal action, within 30 days as required the regulations.  As such, there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges. 

Petitioner explains that the period of time between the suspension of her license and the return of her license was very brief.  P. Br. at 5.  Moreover, she argues that she mistakenly believed that she had 90 days to report the suspension.  Id.  She also argues that any belated reporting to CMS did not cause it harm because the state board notified CMS immediately.  Id.  Petitioner also notes that she completed an intensive treatment program for alcohol dependence and that any failure to report was not intentional.  Id. at 5-6.  Lastly, Petitioner argues that mitigating factors including that that she provides a much needed service to her community were not considered.  Id. at 6-7. 

Petitioner’s arguments may be construed to be requests for equitable relief.  However, I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Furthermore, I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (noting that “[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”). 

I am unable to review the length of Petitioner’s one-year reenrollment bar.  42 C.F.R. § 424.535(c).  The regulation provides that a reenrollment bar “lasts a minimum of

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1 year, but not more than 10 years,” with limited exceptions for greater lengths of time.  42 C.F.R. § 424.535(c)(1)(i).  Petitioner’s one year reenrollment bar is the regulatory minimum.  Vijendra Dave, M.D., DAB No. 2672 at 11 (2016) (providing CMS’s determination of reenrollment bar length not reviewable). 

E. Conclusion

I affirm CMS’s determination.  CMS may revoke Petitioner Medicare enrollment because her medical license was suspended and because she did not report the license suspension to the Medicare contractor.  42 C.F.R. § 424.535(a)(9).