SUBJECT:

Dorothy Rose Hrynvk,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I affirm the determination of the Medicare Part B Hearing Officer (Hearing Officer) to uphold the denial by the Medicare Part B Carrier, Empire Medicare Services (the Carrier), of Petitioner Dorothy Rose Hrynyk's application for a Medicare provider identification number (PIN). I find that the Hearing Officer correctly determined that Petitioner does not meet the regulatory requirements for obtaining a Medicare PIN as a clinical social worker.

I. Applicable Authority

Section 1861 of the Social Security Act (Act) defines medical and other health services that are eligible for Medicare reimbursement by a non-physician practitioner or an allied health professional. Under Section 1842(b)(18)(C) of the Act, the types of "practitioners" include the following: a physician assistant, nurse practitioner, clinical nurse specialist, certified nurse-midwife, clinical social worker, and clinical psychologist.

Section 1866(j) of the Act, as amended by section 936 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, authorized the Secretary of Health and Human Services (Secretary) to establish a process for the enrollment in the Medicare program of providers of services and suppliers. Section 1866(j)(2) of the Act gives providers and suppliers appeal rights, for certain determinations involving enrollment, using the procedures that apply under section 1866(h)(1)(A) of the Act. Those procedures are set out at 42 C.F.R. Part 498, et seq. and provide for hearings by Administrative Law Judges (ALJs) and review by the Departmental Appeals Board (Board).

In provider appeals under 42 C.F.R. Part 498, the Board has determined that CMS must make a prima facie case that an entity has failed to comply substantially with federal requirements. See MediSource Corporation, DAB No. 2011 (2006). "Prima facie" means that the evidence is "[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted." Black's Law Dictionary 1228 (8^th ed. 2004); see also Hillman Rehabilitation Center, DAB No. 1611, at 8 (1997), aff'd, Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 (GEB) (D.N.J. May 13, 1999). To prevail, the entity must overcome CMS's showing by a preponderance of the evidence. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Center, DAB No. 1665 (1998); Hillman, DAB No. 1611 (1997).

CMS regulations define the credentialing requirements and criteria for providers and provider eligible services at 42 C.F.R. �� 410.69 - 410.78. The regulation at 42 C.F.R. � 410.73(a) sets forth the qualifications required to be enrolled in the Medicare program as a clinical social worker. A clinical social worker is defined as an individual who -

(1) Possesses a master's or doctor's degree in social work;

(2) After obtaining the degree, has performed at least 2 years of supervised clinical social work; and

(3) Either is licensed or certified as a clinical social worker by the State in which the services are performed or, in the case of an individual in a State that does not provide for licensure or certification as a clinical social worker -

(i) Is licensed or certified at the highest level of practice provided by the laws of the State in which the services are performed; and

(ii) Has completed at least 2 years or 3,000 hours of post master's degree supervised clinical social work practice under the supervision of a master's degree level social worker in an appropriate setting such as a hospital, SNF, or clinic.

42 C.F.R. � 410.73(a).

II. Background

Petitioner submitted a form CMS 855I (Medicare Federal Health Care Practitioner Enrollment Application - Application for Individual Health Care Practitioners), dated October 11, 2004, to apply for a PIN and enroll as a provider in the Medicare program. ⁽¹⁾ On the application, under the category "Non-Physician Specialty," Petitioner checked "Undefined non-physician type" and wrote in "Licensed counselor in NJ, Licensed clinical alcohol and drug counselor." With the application, Petitioner submitted a copy of her New Jersey certification as a "Certified Alcohol and Drug Counselor," as well as a copy of her New Jersey State license as said counselor. Petitioner also submitted a copy of her New Jersey State license as an "Associate Counselor."

By letter dated December 20, 2004, the Carrier notified Petitioner that her application for a Medicare PIN had been denied because her "provider type [was] not currently supported by Medicare."

Petitioner appealed the decision to the Carrier, and the Hearing Officer conducted a hearing by telephone on February 14, 2005. The Hearing Officer subsequently issued a decision on March 1, 2005 (Hearing Officer decision) upholding the Carrier's denial of Petitioner's application for a Medicare PIN. In the decision, the Hearing Officer noted Petitioner's argument that the LPC [Licensed Professional Counselor] license is a relatively new license in the State of New Jersey. The Hearing Officer noted that Petitioner is licensed in New Jersey as a Professional Counselor and has a master's degree in counseling. She acknowledged Petitioner's contention that a licensed clinical social worker is equivalent to a professional counselor's license. The Hearing Officer noted also that Petitioner indicated that her specialty is recognized by private insurance companies.

The Hearing Officer stated that 42 C.F.R. � 410.73 defines the qualifications required to be enrolled in the Medicare program as a clinical social worker, and that such qualifications include possessing either a master's or doctor's degree in social work. The Hearing Officer stated that the case file included a copy of a New Jersey State License, which indicated that Petitioner is licensed in New Jersey as a Certified Alcohol and Drug Counselor.

Based on the documentation in the case file and Petitioner's oral testimony, the Hearing Officer determined that Petitioner's credentials did not meet the regulatory requirements set forth in 42 C.F.R. � 410.73. The Hearing Officer found that no evidence had been submitted to indicate that Petitioner held either a master's or doctor's degree in clinical social work. The Hearing Officer determined that the professional license held by Petitioner did not meet the regulatory requirements for obtaining a Medicare PIN as set forth by CMS. She thus found that the Carrier's denial of Petitioner's application for a Medicare PIN had been correct. The Hearing Officer advised Petitioner of her appeal rights and that she could appeal the decision to an ALJ.

By letter dated March 18, 2005 (hearing request), Petitioner, acting pro se, submitted a timely appeal of the Hearing Officer's decision. In her hearing request, Petitioner asserted that she has two licenses issued by the State of New Jersey - a license as a professional counselor and a license as a clinical alcohol and drug counselor. Petitioner contended that she met all the educational requirements of a social worker and is fully qualified to provide mental health services. Petitioner stated, among other things, that she possesses a master's degree in counseling with 60 postgraduate credits in counseling and psychology. She stated that she has performed two and one-half years of supervised social work. Petitioner asserted that the hour requirements needed for her two licenses exceeded those of a licensed social worker. She contended that CMS should be "more open minded to newer credentials than the LCSW [licensed clinical social worker]" and asserted that her credentials are not any less qualified than those of a licensed clinical social worker.

The case was assigned to me for a hearing and a decision. I held a telephone conference with the parties on August 17, 2005. I informed Petitioner that she was allowed to obtain an attorney; however, Petitioner elected to proceed pro se. Both parties requested that I decide this case based on the submissions in the record. I gave the parties an opportunity to submit additional documentation into the existing record and directed that a copy of all submissions be served on the other party. See Summary of Telephone Conference and Order, at 2-3.

Subsequently, CMS submitted a copy of the Hearing Officer's Administrative Record, which I have designated as CMS Ex. 1. ⁽²⁾ CMS Ex. 1 consists of the following documents: a fax cover sheet dated June 14, 2005 (CMS Ex. 1, at 1); the acknowledgment letter of June 6, 2005, sent by the Civil Remedies Division to the parties (CMS Ex. 1, at 2-3); Petitioner's March 18, 2005 hearing request (CMS Ex. 1, at 4) ⁽³⁾; a letter to Petitioner from the Internal Revenue Service, dated March 20, 2003 (CMS Ex. 1, at 5); the first two pages of the Civil Remedies Division Procedures (CMS Ex. 1, at 6-7) ⁽⁴⁾; the Hearing Officer's March 1, 2005 hearing decision (CMS Ex. 1, at 8-11); Petitioner's December 26, 2004 letter to the Carrier appealing the denial (CMS Ex. 1, at 12-13); the Carrier's December 20, 2004 letter to Petitioner denying her application to enroll as a provider/supplier in the Medicare program (CMS Ex. 1, at 14-15); an envelope sent by Petitioner to the Carrier postmarked December 27, 2004 (CMS Ex. 1, at 16); Petitioner's completed October 11, 2004 form CMS 855I Application for enrollment in the Medicare program, accompanied by copies of Petitioner's New Jersey State certification as a Certified Alcohol and Drug Counselor, and Petitioner's licenses indicating that she is a professional counselor and a certified alcohol and drug counselor (CMS Ex. 1, at 17-32); and a letter to Petitioner from the Internal Revenue Service, dated March 20, 2003 (CMS Ex. 1, at 33) (this is a duplicate of CMS Ex. 1, at 5).

Petitioner did not object to the Hearing Officer's Administrative Record submitted by CMS. Therefore, I have admitted CMS Ex. 1 into the record of this case.

Petitioner submitted a letter dated October 25, 2005. In her letter, Petitioner reiterated and expanded upon her previous arguments from her hearing request. Petitioner pointed to her education and many hours of training and contended that she had demonstrated as much success in the field of therapy as a LCSW. She contended that one who has a master's degree in social work merely has the degree, and is not yet licensed; her two licenses, however, have allowed her to practice counseling in New Jersey "from the very beginning" because she met the hour and field work requirements. Petitioner argued again that the CMS contractor and Medicare needed to be "open minded" to her credentials as a "LPC" [licensed professional counselor] and "LCADC" [licensed certified alcohol and drug counselor].

III. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is:

Whether Petitioner satisfies the necessary requirements to obtain a Medicare PIN as a clinical social worker.

B. Findings of fact and conclusions of law

1. Petitioner has not satisfied the clinical social worker requirements set forth at 42 C.F.R. � 410.73(a).

As noted above, to meet the definition of a "clinical social worker" at 42 C.F.R. � 410.73(a), an individual must satisfy three requirements encompassing education, clinical social work experience, and licensure/certification. 42 C.F.R. � 410.73(a)(1) - (3). The first requirement listed at 42 C.F.R. � 410.73(a)(1) is the education prerequisite - i.e., the individual must possess either a master's or doctor's degree in social work.

Based on the record before me, I find no evidence that Petitioner holds either a master's or doctor's degree in social work. Petitioner has not claimed that she holds either of these degrees. Rather, Petitioner argues that her master's degree in counseling with sixty post graduate credits in counseling and psychology, combined with her many hours of training and work experience, indicate that she is as qualified as one who is a licensed clinical social worker. In Petitioner's view, Medicare should "be open minded" to her credentials as a licensed professional counselor and a licensed certified alcohol and drug counselor, and allow her to participate in the Medicare program.

While it is apparent that Petitioner has education, training, and work experience in the area of counseling, I cannot overlook the fact that she does not possess either a master's or doctor's degree in social work. The language of 42 C.F.R. � 410.73(a) is unambiguous. One of the prerequisites that must be satisfied before an individual qualifies as a clinical social worker under the Act is that the individual must possess either "a master's or doctor's degree in social work." 42 C.F.R. � 410.73(a)(1) (emphasis added); Act, section 1861(hh)(1). Because Petitioner holds a master's degree in counseling, she fails to satisfy the explicit education prerequisite of 42 C.F.R. � 410.73(a).

Although Petitioner urges an open-minded approach toward her credentials, the Act and the regulations leave no room for such an approach, and I have no discretion here. Under the Act, the term "medical and other health services" includes "qualified psychologist services" and "clinical social worker services (as defined in [the relevant subsection])." Act, section 1861(s)(2)(M) and (N); 42 C.F.R. � 410.10(v), (w). ⁽⁵⁾ There is nothing in the statute or regulations that recognizes or describes other types of services in the mental health area. Thus, Petitioner's argument that her professional counselor and certified alcohol and drug counselor credentials are at least equivalent to those of a licensed clinical social worker must be rejected for the purpose of considering the requirements for a Medicare PIN.

Because Petitioner has not satisfied the education requirement of 42 C.F.R. � 410.73(a), it is not necessary for me to examine whether Petitioner has met the work experience and licensure/certification requirements as defined in subsections (2) and (3) of 42 C.F.R. � 410.73(a). ⁽⁶⁾

2. Petitioner is not entitled to obtain a Medicare PIN as a clinical social worker.

As discussed above, Petitioner does not qualify as a clinical social worker because she does not possess the requisite degree, and thus, fails to satisfy the statutory and regulatory requirements. Accordingly, I find that Petitioner is not entitled to obtain a Medicare PIN as a clinical social worker. I therefore affirm the Hearing Officer's determination to uphold the denial by the Carrier of Petitioner's application for a Medicare PIN.

Marion T. Silva

Chief Administrative Law Judge

1. The form CMS 855I is used for multiple purposes: "initial enrollment," "reactivation," "change of information," and "voluntary deactivation of billing number." Petitioner checked the box for "initial enrollment."

2. Because the pages were not numbered, I have paginated CMS Ex. 1.

3. I note that the copy of Petitioner's hearing request does not include page 2; however, a complete copy of the hearing request is part of the official record.

4. The complete Civil Remedies Division Procedures (pp. 1-3) were sent to Petitioner with her acknowledgment letter.

5. The Act defines "qualified psychologist services" as

such services and such services and supplies furnished as an incident to his service furnished by a clinical psychologist (as defined by the Secretary) which the psychologist is legally authorized to perform under State law (or the State regulatory mechanism provided by State law) as would otherwise be covered if furnished by a physician or as an incident to a physician's service.

Act, section 1861(ii); see 42 C.F.R. � 410.71(a).

The Act defines "clinical social worker services" as

services performed by a clinical social worker (as defined [by the statute]) for the diagnosis and treatment of mental illnesses (other than services furnished to an inpatient of a hospital and other than services furnished to an inpatient of a skilled nursing facility which the facility is required to provide as a requirement for participation) which the clinical social worker is legally authorized to perform under State law (or the State regulatory mechanism provided by State law) of the State in which such services are performed as would otherwise be covered if furnished by a physician or as an incident to a physician's professional service.

Act, section 1861(hh)(2); see 42 C.F.R. � 410.73(b).

6. The State of New Jersey does provide for licensure of "clinical social workers." To obtain a New Jersey State license as a clinical social worker, an applicant must possess a master's degree or a doctorate in social work, and also satisfy other requirements, such as having clinical social work experience and passing an appropriate examination. N.J. Stat. Ann. � 45:15BB-6(a).