Pollock OPCO, LLC, DAB No. 3203 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Pollock OPCO, L.L.C., operator of a skilled nursing facility in Pollock, Louisiana, appeals an administrative law judge (ALJ)’s decision affirming a determination by the Centers for Medicare & Medicaid Services (CMS) to deny Petitioner’s application for enrollment in the Medicare program for failure to submit its owners’ fingerprints within the time required in the enrollment regulations.  Pollock OPCO, L.L.C., DAB CR6588 (2024) (ALJ Decision).  On appeal, Petitioner argues that the ALJ erred because Petitioner timely responded when CMS granted an opportunity to submit a corrective action plan (CAP) to correct the noncompliance.  For the reasons stated below, we agree with the ALJ that the regulations required CMS to deny the application due to Petitioner’s undisputed failure to submit the requested fingerprints within the time period the regulation provides, and we affirm the ALJ Decision.

Legal Background

Under the Social Security Act (Act) and its implementing regulations, the Department of Health and Human Services administers the Medicare program, including enrollment of health care “providers” and “suppliers,” through CMS and administrative contractors.  Act §§ 1816(a), 1842(a), 1866(j)(1)(A), 1874A (42 U.S.C. §§ 1395h(a), 1395cc(j)(1)(A), 1395kk-1(a)); 42 C.F.R. § 400.202 (defining “Provider” and “Supplier”).¹  Section 424.510(d)(2)(i) of the regulations requires providers including skilled nursing facilities (SNFs) such as Petitioner’s to include in enrollment applications “[c]omplete, accurate, and truthful responses to all information requested within each section as applicable to the provider or supplier type.”  The enrollment process requires “screening of providers and suppliers,” which includes a licensure check and also may include “fingerprinting” and “a criminal background check,” among other measures.  Act § 1866(j)(1)(A), (j)(2)(B) (42 U.S.C. § 1395cc(j)(1)(A), (j)(2)(B)).

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Accordingly, regulations in 42 C.F.R. Part 424 require CMS to screen certain Medicare enrollment applications “based on a CMS assessment of risk and assignment to a level of ‘limited,’ ‘moderate,’ or ‘high.’”  42 C.F.R. § 424.518.  The regulations classify SNFs, both newly enrolling and those applying to change ownership or report a new owner, as a “[h]igh categorical risk.”  42 C.F.R. § 424.518(c)(1)(v), (vii).

When an individual maintains a five percent or greater ownership interest in a provider or supplier that CMS has designated at a “high” level of categorical risk, the Medicare contractor “[r]equires the submission of a set of fingerprints for a national background check.”  Id. § 424.518(c)(2)(ii)(A).  The contractor uses the fingerprints to conduct a criminal history record check of the Federal Bureau of Investigation’s Integrated Automated Fingerprint Identification System.  Id. § 424.518(c)(2)(ii)(B).  An individual subject to this fingerprint-based criminal history record check requirement “[m]ust submit a set of fingerprints” either “[u]pon submission of a Medicare enrollment application” or “[w]ithin 30 days of a Medicare contractor request.”  Id. § 424.518(d)(1).

If “the individual(s) required to submit fingerprints . . . fail to submit such fingerprints in accordance with paragraph (d)(1)” – i.e., upon submission of the enrollment application or within 30 days of a Medicare contractor request – “the provider or supplier will have its billing privileges – (i) Denied under § 424.530(a)(1); or (ii) Revoked under § 424.535(a)(1).”  Id. § 424.518(d)(2).  Relevant here, “CMS may deny a provider’s or supplier’s enrollment in the Medicare program” if the provider or supplier “is determined to not be in compliance with the enrollment requirements” in the regulations “and has not submitted a plan of corrective action as outlined in part 488 of this chapter.”  Id. § 424.530(a)(1).  The Part 488 regulations “do not specifically define” what an acceptable plan of corrective action (better known as a CAP) means or entails.  Marcia M. Snodgrass, APRN, DAB No. 2646, at 2, 5 (2015).

CMS’s or its contractor’s denial of Medicare enrollment is an “initial determination” that the provider or supplier may appeal by requesting reconsideration.  42 C.F.R. §§ 498.3(a), (b)(17)(i); 498.5(l)(1).  A provider or supplier dissatisfied with a reconsidered determination may seek a hearing before an ALJ, and may appeal the ALJ’s decision to the Departmental Appeals Board (Board).  Id. §§ 498.5(l)(2), 498.40; 498.80, 498.82(a).  However, the refusal of CMS or its contractor to grant billing privileges based on a CAP is not a reviewable initial determination subject to reconsideration, an ALJ hearing, or appeal to the Board.  42 C.F.R. § 405.809(b)(2); Meindert Niemeyer, M.D., DAB No. 2865, at 11 (2018); Conchita Jackson, M.D., DAB No. 2495, at 1 (2013).

Case Background²

On November 10, 2023, Petitioner electronically submitted to CMS a change-of-ownership Medicare enrollment application (CHOW) to identify its new owners.  ALJ

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Decision at 1 (citing CMS Ex. 3, at 1).  By letter of December 27, 2023, which Petitioner reports receiving the same day, the CMS contractor, Novitas Solutions Inc. (Novitas), advised that “[a]ll 5 percent or greater owners of your organization must complete a fingerprint-based background check within 30 calendar days from the postmarked date of this letter,” and named four individuals for whom Petitioner had to submit fingerprints.  Id. at 1-2 (citing CMS Ex. 2, at 1-2); Petitioner’s Request for Review of ALJ Decision (RR) at 2.  Novitas directed Petitioner to submit the fingerprints to another CMS contractor, Accurate Biometrics, for verification, and cautioned that “[f]ailure to submit fingerprints for all individuals listed within the designated time frame may result in denial of your Medicare billing privileges.”  CMS Ex. 2, at 2.

On January 3, 2024, Petitioner submitted a revised CHOW application with corrections requested by Novitas on December 18, 2023.  ALJ Decision at 2 (citing CMS Ex. 1, at 1).  “On February 7, 2024, Petitioner mailed what it asserts were the four sets of fingerprints requested by Novitas by overnight commercial delivery to Accurate Biometrics, which received them on February 8, 2024.”  Id. at 2 (citing CMS Ex. 4, at 1-2, FedEx delivery receipt and tracking info showing delivery from Petitioner to Accurate Biometrics).

By letter issued and received on February 13, 2024, Novitas denied Petitioner’s CHOW application pursuant to 42 C.F.R. § 424.530(a)(1) because “CMS ha[d] not received the required fingerprints” from Petitioner’s owners within 30 days of Novitas’ December 27, 2023, request.  Id. at 6 (quoting CMS Ex. 5, at 1).  Novitas informed Petitioner that it “may submit a Corrective Action Plan (CAP) within 35 calendar days” if Petitioner believed it could correct the identified deficiency and demonstrate eligibility for enrollment by providing “evidence that you are in compliance with Medicare requirements.”  CMS Ex. 5, at 2; see ALJ Decision at 2.  Novitas’ February 13, 2024 letter also advised Petitioner of its right to “request a reconsideration before a contractor hearing officer” within 65 days if Petitioner believed “that this determination is not correct.”  CMS Ex. 5, at 3.

Petitioner submitted a CAP and a request for reconsideration on February 22, 2024, asserting it had submitted the fingerprints to Accurate Biometrics on February 8, 2024, correcting the deficiency.  ALJ Decision at 2 (citing CMS Ex. 6, at 1-5 (CAP), 6-10 (reconsideration request)).

On May 22, 2024, a CMS hearing officer issued a reconsidered determination upholding the denial of Petitioner’s Medicare enrollment application.  ALJ Decision at 2; CMS Ex. 8.  The CMS hearing officer found the denial proper because Petitioner’s “owners were required to submit their fingerprints to CMS within 30 days of the December 27, 2023 fingerprint request letter from Novitas” but “all of its owners failed to timely submit their fingerprints.”  CMS Ex. 8, at 4; see ALJ Decision at 2.  The hearing officer also found that Petitioner’s CAP failed to demonstrate compliance with the enrollment requirements because, “pursuant to § 424.518, the owners were required to timely submit

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their fingerprints to CMS,” and CMS had not received fingerprints for two of the four owners.  CMS Ex. 8, at 2-4.  Petitioner timely requested an ALJ hearing.

ALJ Proceedings and Decision

Before the ALJ, CMS filed a motion for summary judgment and 10 proposed exhibits (CMS Exs. 1-10), and Petitioner filed a response and pre-hearing brief with three proposed exhibits (P. Exs. 1-3) including the affidavit of the Executive Vice President of Petitioner’s management company (P. Ex. 1), and one attachment, a five-page excerpt of a 2022 CMS final rule from the Federal Register (P. Att. 1).  The ALJ admitted all exhibits in the absence of objections and determined that the Federal Register excerpt need not be admitted as an exhibit.  ALJ Decision at 3.  As CMS proffered no witnesses and did not request to cross-examine the Executive Vice President of Petitioner’s management company, the ALJ issued a decision on the written record without holding a hearing, as provided in the ALJ’s Pre-Hearing Order, and denied as moot CMS’s motion for summary judgment.  Id.

Petitioner argued it corrected the basis for the denial within the time provided in Novitas’ February 13, 2024 letter inviting Petitioner to submit a CAP, by having sent four sets of fingerprints to Accurate Biometrics on February 7, 2024.  ALJ Decision at 8.  Petitioner’s Executive Vice President gave written testimony that, “[o]n May 22, 2024, after receiving the unfavorable reconsidered determination from Novitas,” she “personally called Accurate Biometrics,” which “confirmed” receiving on February 8, 2024, the fingerprints of the two owners that the reconsidered determination said had not been submitted.  P. Ex. 1, at 2; see ALJ Decision at 5, 8 (citing P. Ex. 1).  The Executive Vice President also testified that Accurate Biometrics had earlier called to request the Social Security numbers of those same two owners for whom CMS “claims to have no record.”  P. Ex. 1, at 1.  CMS did not seek to cross-examine the witness.  ALJ Decision at 3.

1. The ALJ concluded that the regulations required denial of enrollment because Petitioner did not submit the fingerprints within the regulatory deadline.

The ALJ found, “CMS makes no effort to respond to [Petitioner]’s claim before me” that it submitted all four sets of fingerprints by February 8, 2024, and further stated that “Petitioner’s argument is reasonable.”  ALJ Decision at 8, 5.  The ALJ held, however, that “CMS nevertheless prevails because its regulations demanded denial of Petitioner’s enrollment application when Petitioner failed to timely provide the fingerprints requested by Novitas within 30 days” of December 27, 2023, meaning by a deadline of January 26, 2024.  Id. at 5.³  The ALJ cited the requirement that “high-risk providers,” which include

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SNFs, “‘[m]ust submit a set of [five percent owners’] fingerprints for a national background check . . . [w]ithin 30 days of a Medicare contractor request’ if they did not include them with the initial application.”  ALJ Decision at 5 (citing 42 C.F.R. § 424.518(d)(1)).  “If they fail to do so,” the ALJ explained, “the regulations specify the provider ‘will have its billing privileges . . . [d]enied under § 424.530(a)(1).’”  ALJ Decision at 5 (citing 42 C.F.R. § 424.518(d)(2)(i)).  The ALJ thus concluded that “CMS had a valid basis to deny Petitioner’s enrollment application.”  Id. at 5 (bold, italics removed).

2. The ALJ concluded he had no authority to review the denial of Petitioner’s CAP.

The ALJ next concluded, “I have no jurisdiction to consider whether CMS or its contractor should have accepted Petitioner’s CAP.”  ALJ Decision at 8 (bold, italics removed).  The ALJ acknowledged Petitioner’s assertion that “it was entitled to 35 days under a CAP to cure the deficiency and believes it did so.”  Id.  The ALJ further recognized Petitioner’s submission of evidence “to support that claim,” citing the Executive Vice President’s testimony that Accurate Biometrics confirmed receipt on February 8, 2024, of the allegedly missing fingerprints.  Id. (citing P. Ex. 1).  The ALJ also took note of CMS’s failure to respond to that testimony, but concluded, “I must nevertheless rule in [CMS]’s favor because I have no jurisdiction over the denial of a CAP.”  Id. (citing 42 C.F.R. § 405.809(b)(2), Conchita Jackson, M.D., at 6, and DMS Imaging, Inc., DAB No. 2313, at 5 (2010)).  As when finding that CMS had a valid basis to deny enrollment, the ALJ again held that, even crediting Petitioner’s evidence “that Accurate Biometrics received fingerprints for all necessary individuals on February 8, 2024, . . . I must still affirm denial of Petitioner’s enrollment application” because denial was required “after January 26, 2024, when the 30-day period for Petitioner to submit fingerprints expired.”  Id. at 8-9.

3. The ALJ found that Novitas and CMS communications misled and prejudiced Petitioner but concluded that finding did not permit reversal of the enrollment denial.

The ALJ also found that CMS’s and Novitas’ communications prejudiced Petitioner by leading it to erroneously believe that denial was not mandatory and could be prevented via a CAP.  The ALJ found “Novitas actively misled Petitioner in its December 27, 2023 fingerprint request letter by warning that denial was only a possibility if Petitioner did not comply within 30 days.” ALJ Decision at 6 (quoting CMS Ex. 2, at 2 (failure to timely submit fingerprints “may result in denial,” ALJ’s italics).  “Novitas further reinforced this inaccurate impression,” the ALJ found, by later “offering Petitioner 35 days to submit a CAP showing it could ‘correct the deficiencies and establish [its] eligibility to participate in the Medicare program,’” contrary to the regulation requiring denial of enrollment upon failure to timely submit fingerprints upon request.  Id. (citing CMS Ex. 5, at 2).

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The ALJ noted that “[t]echnically, Novitas did not make an improper offer” because the denial notice could be read as giving Petitioner “a 35-day CAP period . . . to demonstrate it had submitted fingerprints within the 30 days following Novitas’ December 27, 2023 request.”  Id. at 6 n.5.  In other words, “Petitioner could have prevailed under a CAP,” but only by submitting evidence that Petitioner had “submitted the requested fingerprints within 30 days of receipt of the contractor’s request.”  Id. at 8.  Nevertheless, the ALJ found that “Petitioner reasonably interpreted Novitas to have offered it an additional 35 days from the date of the denial to submit the fingerprints.”  Id. at 6 n.5; see id. at 7 (Novitas’ “denial notice suggested to Petitioner that it had an additional 35 days to correct the omission.”).  The ALJ further found that “CMS compounded the confusion” in its reconsidered decision by “failing to explain to Petitioner that [the] regulation precluded consideration of its efforts to submit the fingerprints under the purported auspices of a CAP.”  Id. at 7.

The ALJ assessed that the “prejudice to Petitioner” was “not insignificant,” as with clearer notice “Petitioner could have acted with greater urgency” to provide all the requested fingerprints before the 30-day deadline or, after missing the deadline, “would perhaps have recognized the futility of challenging [the enrollment] denial and instead filed another application as soon as the regulations permitted,” i.e., “30 days after its right to appeal the initial denial expired.”  ALJ Decision at 6-7 (citing 42 C.F.R. § 424.530(b)(1) (permitting reapplication after appeal rights have lapsed)).  The ALJ nonetheless concluded that “the regulations required Novitas to [deny enrollment] after January 26, 2024, when the 30-day period for Petitioner to submit fingerprints expired,” because “there is no dispute that even by Petitioner’s estimation, it did not submit fingerprints for [the] four individuals until February 8, 2024.”  Id. at 8, 5.

The ALJ thus “affirm[ed] CMS’s determination to deny Petitioner’s Medicare enrollment application.”  Id. at 9.  Petitioner timely appealed the ALJ Decision to the Board.

Standard of Review 

“The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole,” and “[t]he standard of review on a disputed issue of law is whether the ALJ decision is erroneous.”  Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), “Completion of the Review Process,” ¶ (c) (available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html.

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Discussion

1. The ALJ’s conclusions that applicable regulations required the denial of Petitioner’s enrollment application, and that the ALJ could not review the rejection of the CAP, are free of legal error and supported by substantial evidence.

Petitioner does not challenge the ALJ’s summary of the requirements of the enrollment regulations.  Petitioner does not dispute the ALJ’s statements that in the enrollment regulations, “CMS categorizes skilled nursing facilities, both newly enrolling and those applying to change ownership or report a new owner, as a ‘[h]igh categorical risk.’”  ALJ Decision at 4 (citing 42 C.F.R. § 424.518(c)(1)(v), (vii)).  Petitioner also does not dispute the ALJ’s statement that such a high-risk provider “must provide fingerprints” from “any individual with a five percent or greater direct or indirect ownership interest in the provider” either “with its enrollment application or within 30 days of the contractor’s request.”  ALJ Decision at 4 (citing 42 C.F.R. § 424.518(c)(2)(i), (ii)(A), (d)(1)).  Petitioner also does not contest that the “regulations mandate denial of a high-risk provider’s enrollment application . . . where it fails to provide the fingerprints of an individual subject to fingerprint-based criminal history verification.”  Id. (citing 42 C.F.R. §§ 424.518(d)(2)(i), 424.530(a)(1)).  Petitioner additionally takes no exception to the ALJ’s findings that “Petitioner identified four individuals in its November 10, 2023 CHOW application who met this definition of ownership and for whom Petitioner was thus obliged to provide fingerprints.”  Id. at 5; see also CMS Ex. 3 at 9-11 (identifying individuals with 5% or greater ownership interest); CMS Ex. 10 at 8-9 (same).  Finally, Petitioner affirms that it “does not dispute that it failed to submit the fingerprints of all four (4) of its owners within the thirty (30) day request made by Novitas in its letter dated December 27, 2023.”  RR at 4.

Petitioner instead argues only that the regulatory 30-day period for providing the requested fingerprints began anew on February 13, 2024, when Novitas denied Petitioner’s enrollment application for failure to timely submit the fingerprints but invited Petitioner “to correct the deficiencies and establish your eligibility” by submitting a CAP that “should provide evidence that you are in compliance with Medicare requirements.”  RR at 2 (quoting CMS Ex. 5, at 2).  “Specifically, Petitioner asserts that the letter it received from Novitas on February 13, 2024, served as a request for the submission of its owners’ fingerprints to CMS through Accurate Biometrics,” and that “[a]ccording to 42 CFR § 424.518(d)(1)(ii), Petitioner had 30 days to comply with this request.”  Id. at 1.  Thus, “Petitioner argues that Novitas’ decision to not conclusively deny Petitioner’s CHOW . . . and instead, provide Petitioner an opportunity to correct deficiencies qualifies as another request for Petitioner to submit its owners’ fingerprints” that “effectively nullified the original basis for denial and granted Petitioner an additional 30 days from February 13, 2024, to comply with 42 CFR § 424.518, as stipulated in 42 CFR § 424.518(d)(1)(ii).”  RR at 4.  Citing the Executive Vice President’s testimony, which

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CMS has not addressed, Petitioner then asserts that it “complied with the regulatory 30-day requirement by delivering the requisite fingerprints to Accurate Biometrics on February 8, 2024.”  Id. (citing P. Ex. 1; P. Ex. 2, at 4; ALJ Decision at 8).

The ALJ considered these arguments and correctly concluded they provide no basis to reverse CMS’s denial of enrollment, because of the mandatory nature of the regulation directing denial (or revocation) of the enrollment of a provider if its owners’ fingerprints are not provided within 30 days of a contractor’s request.  Thus, even accepting the Executive Vice President’s testimony that Accurate Biometrics confirmed receipt of all owners’ fingerprints by February 8, 2024 (which, the ALJ found, “CMS makes no effort to respond to”), the ALJ correctly held that “CMS nevertheless prevails.”  ALJ Decision at 5, 8.  That holding is correct because, as the ALJ explained, “there is no dispute that even by Petitioner’s estimation, it did not submit fingerprints for these four individuals until February 8, 2024,” beyond the January 26, 2024 deadline that, as Petitioner acknowledged, was established by Novitas’ December 27, 2023 letter instructing Petitioner “to submit fingerprints for those four individuals within 30 days.”⁴  Id. at 5-6.  Upon expiration of that deadline, section 424.518(d)(2) of the regulations directed denial of Petitioner’s application, as discussed above.  As the ALJ held, “the regulatory mandate is clear:  if a high-risk provider does not obtain and submit fingerprints within 30 days of a contractor’s request, CMS ‘will’ deny its enrollment application.”  Id. at 7 (citing 42 C.F.R. § 424.518(d)(2)(i)).  Thus, “CMS had a valid basis to deny Petitioner’s enrollment application.”  Id. at 5 (bold, italics removed).  Petitioner has identified nothing in the regulations permitting the regulation-mandated deadline to be extended or renewed, or barring CMS from denying enrollment as directed, whether based on a CAP or for other reasons.

And, although 42 C.F.R. § 424.530(a)(1), which the denial notice and reconsidered decision both cite as authority for the termination, states generally that CMS “may” deny enrollment for failure to comply with the enrollment regulations’ requirements, the specific regulation requiring submission of fingerprints within 30 days of requests affords no such discretion.  Section 424.518(d), which the original and reconsidered decisions also both cite, requires denial for failure to meet that requirement, and we apply the regulation most directly applicable to the enrollment requirement Petitioner failed to meet.  See Carehouse Convalescent Hosp., DAB No. 1799, at 40 (2001) (applying “[t]he specific and thus more directly applicable regulation”).

We thus affirm the ALJ’s determinations that Petitioner was required to, but did not, provide the fingerprints of the four owners within 30 days of the December 27, 2023 request and that the controlling regulation by its plain terms required the denial of

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Petitioner’s enrollment application.  See ALJ Decision at 5-7; 42 C.F.R. § 424.518(d)(2)(i).

Petitioner also does not dispute the ALJ’s conclusion that he had “no jurisdiction to consider whether CMS or its contractor should have accepted Petitioner’s CAP,” and we affirm that conclusion without further discussion.  ALJ Decision at 8 (bold, italics removed; citing 42 C.F.R. § 405.809(b)(2) (“The refusal of CMS or its contractor to reinstate a provider or supplier’s billing privileges based on a corrective action plan is not an initial determination under part 498 of this chapter.”); Conchita Jackson, M.D., at 6; DMS Imaging, Inc., at 5-6).

2. The ALJ did not err in concluding that any “missteps” by Novitas and CMS in communications with Petitioner were not grounds to reverse the denial of Petitioner’s enrollment application.

CMS suggests that Petitioner was not misled, dismissing as “unpersuasive” Petitioner’s argument that CMS’s denial “was improper because Novitas actively decided not to conclusively deny its CHOW and gave Petitioner the opportunity to correct its eligibility deficiencies via a CAP.”  CMS Br. at 3.  However, CMS has not otherwise disputed or responded to the ALJ’s findings that Novitas and CMS repeatedly miscommunicated with Petitioner and that “the prejudice to Petitioner caused by Novitas’ unclear notices is not insignificant.”  ALJ Decision at 6-8 (citing CMS Ex. 2, at 2, CMS Ex. 5, at 2, CMS Ex. 8, at 2-4).

We nevertheless agree with the ALJ that equitable considerations arising from “whatever missteps Novitas and CMS made in their notices,” id. at 7, do not permit us to reverse the enrollment denial.  As the ALJ held, “the regulatory mandate is clear” that “CMS ‘will’ deny” the enrollment application of a high-risk provider that “does not obtain and submit fingerprints within 30 days of a contractor’s request,” and neither an ALJ nor the Board may ignore applicable regulations, or reverse a CMS action authorized by regulation, based on equitable factors.  Id. at 7.  The ALJ also correctly noted that “neither the Board nor an ALJ may overturn denial of provider enrollment in the Medicare program on equitable grounds” and concluded that “[o]nce CMS establishes a basis for enrollment denial, I may not substitute my own judgment as to its propriety.”  Id. (citing UpturnCare Co., DAB No. 2632, at 19 (2015)).  The Board has long recognized that “[n]either 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,” as both “are bound by the applicable statute and regulations.”  Chaque Femme Boutique LLC, DAB No. 3180, at 7-8 (2025) (citing Pepper Hill Nursing & Rehab Ctr., LLC, DAB No. 2395, at 11 (2011) (citing US Ultrasound, DAB No. 2302, at 8 (2010)); 1866ICPayday.com, DAB No. 2289, at 14 (2009)); see also Jersey City Med. Supplies, Inc., DAB No. 2766, at 8 (2017) (citing and applying Board decisions holding that the Board is bound by the regulations and may not choose to overturn CMS’s lawful use of its regulatory authority

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based on principles of equity).  Chaque Femme Boutique is analogous to this case because the enrollment regulation at issue there, requiring certain suppliers to maintain continuous surety bond coverage, required revocation upon lapse of coverage and did not permit subsequent correction of the coverage lapse.⁵  Chaque Femme Boutique at 2; see 42 C.F.R. § 424.57(d)(11)(i), (d)(6)(iii) (“If CMS receives notification of a lapse in bond coverage from the surety, the DMEPOS supplier’s billing privileges are revoked.”).

“So long as an ALJ finds that CMS has shown that one of the regulatory bases for denying a supplier’s Medicare enrollment application set out in the reconsideration determination exists, the ALJ (and the Board on appeal) may not refuse to apply the regulation and must uphold the denial.”  Robert J. Tomlinson, M.D., DAB No. 2916, at 5 (2018), aff’d, No. 19-05114, 2020 WL 376657 (W.D. Ark. Jan. 23, 2020).  This is such a case.  Finally, even if the Board could consider the equities, we would point out that CMS’s administration of the fingerprinting requirement serves important and beneficial purposes and Petitioner has the right to reapply for enrollment.  See Act § 1866(j)(2)(B) (42 U.S.C. § 1395cc(j)(2)(B)) (stating Congressional authorization for fingerprinting requirements); Anthony Del Piano, M.D., DAB No. 3096, at 18 (2023) (“The process for screening and enrolling health care professionals in Medicare is necessary to carry out the purposes of the program, including the primary purpose of promoting beneficiary access to high quality medical care.”); see also 42 C.F.R. § 424.530(b)(2) (“A provider or supplier that is denied enrollment in the Medicare program” can submit a new enrollment application “after notification that the determination was upheld” on appeal).

Conclusion

We affirm the ALJ Decision.

Endotes

¹  This Decision applies and cites regulations in effect at the time of the February 13, 2024 initial determination denying enrollment.  See Eva Orticio Villamor-Goubeaux, DAB No. 2997, at 1 n.1 (2020).

²  The facts are from the ALJ Decision and the record and are not disputed except where noted.

³  The ALJ noted that “Petitioner’s claimed submission of the fingerprints in question on February 8, 2024 would still have been untimely” even assuming delivery by mail and applying “the five-day presumptive timeframe CMS applies by regulation in other circumstances” for delivery by mail.  ALJ Decision at 6 n.3.  On appeal, Petitioner states it received the Novitas letter on December 27, 2023, the same day it was issued.  RR at 2.

⁴  While CMS does not deny Petitioner’s contention that it submitted all sets of fingerprints by February 8, 2024, the ALJ noted that the CMS Hearing Officer “expend[ed] considerable effort rebutting Petitioner’s claim that it submitted the fingerprints by February 8, 2024.”  ALJ Decision at 6 n.4 (citing CMS Ex. 8, at 2-3).  The record before the Hearing Officer did not include the Executive Vice President’s testimony.

⁵  Chaque Femme Boutique is further analogous because in that case, as here, the contractor “declined to accept a CAP for the same reasons it denied reconsideration,” i.e., because the regulation directed termination upon learning of a lapse in bond coverage and did not permit subsequent correction.  Chaque Femme Boutique at 3 n.5.