SUBJECT:

Susan Stevens,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner, Susan Stevens, appeals the Centers for Medicare and Medicaid Services' (CMS's) determination to revoke her Medicare billing privileges, effective September 9, 2005, because she was not then properly licensed under New York State law. No facts are in dispute and CMS moves for summary judgment. For the reasons discussed below, I grant CMS's motion.

Background

Medicare Part B is a supplementary medical insurance program for the aged and disabled. Social Security Act (Act), sections 1831-1848. Among other benefits, the Part B program will pay for services provided by clinical social workers who accept Medicare assignment. ⁽¹⁾ Act, section 1842(b)(18)(A), (C)(iv); 42 C.F.R. �� 410.150(b)(18); 424.55. The statute and regulations define "clinical social worker" as an individual who possesses a master's degree or doctorate in social work, followed by at least two years of supervised clinical social work, and who is licensed or certified by the state in which the services are performed. Social Security Act (Act), section 1861(hh)(1); 42 C.F.R. � 410.73(a). If the state does not provide for licensure or certification, the individual must be licensed or certified "at the highest level of practice provided by the laws of the state in which the services are performed," and must have completed at least two years or 3,000 hours of social work practice supervised by a master's level social worker in an "appropriate" setting, such as a hospital, skilled nursing facility, or clinic. Act, section 1861(hh)(1)(C); 42 C.F.R. � 410.73(a)(3). "Clinical social worker services" are the services of a clinical social worker furnished for the diagnosis and treatment of mental illness that the clinical social worker is legally authorized to perform under state law. Act, section 1861(hh)(2); 42 C.F.R. � 410.73(b)(1).

Prior to September 1, 2004, the State of New York did not license or certify clinical social workers. At that time, the highest level of social work practice in New York was the classification of "certified social worker." CMS Ex. 1, at 2 (Wilkerson Decl. � 8); See 63 Fed. Reg. 20.110, at 20,122 - 20.123 (April 23, 1998). A "certified social worker" with the requisite amount and type of supervised clinical practice could therefore qualify for Medicare payment. Act, section 1861(hh)(1)(C); 42 C.F.R. � 410.73(a)(3).

Effective September 1, 2004, the State of New York instituted a licensure program for its social workers. It eliminated the "certified social worker" category, and created two new categories: Licensed Master Social Worker (LMSW) and Licensed Clinical Social Worker (LCSW). N.Y. EDUC. LAW �� 7700 et seq.; CMS Ex. 4. Under the new law, LMSWs can practice clinical social work only under supervision. N.Y. EDUC. LAW �7701(1)(d). LCSWs are at the highest level of practice, and can practice independently. N.Y. EDUC. LAW �� 7701(2), 7702(3).

Requirements for the LMSW were identical to those for the certified social worker, and most certified social workers automatically became LMSWs on September 1, 2004. CMS Ex. 4, at 7. Some practicing social workers with psychotherapy privileges (designated by a "P" or an "R" as part of their certification) automatically became LCSWs. Id. The state also established a process by which qualified social workers could be "grandfathered" into the LCSW classification, without passing a licensing exam. The social worker had to apply for a license before September 1, 2005, and the state had to approve the application before a license would be granted. While an application was pending, the social worker could not perform as an LCSW, but could provide clinical social work services only under supervision. CMS Ex. 4, at 7, 10, 13.

On October 12, 2004, the Medicare Part B carrier, ⁽²⁾ Empire Medical Services (Empire) posted a notice on its website that announced the change in state law, and advised that, as a result of the change "all Clinical Social Workers must be licensed as Clinical by New York State." CMS Ex. 5. Empire published the same notice in its January 2005 News Brief, a free publication distributed to Medicare providers and suppliers. CMS Ex. 6; CMS Ex. 1 (Wilkerson Decl. � 11).

In August 2005, CMS directed Empire to revoke the billing privileges of New York social workers who had not obtained the LCSW license, and on August 15, 2005, Empire sent notices to the affected parties, including Petitioner, advising them that, because they no longer met the requirements for Medicare enrollment, their billing privileges would be revoked effective September 9, 2005. CMS Ex. 1 (Wilkerson Decl. � 4); CMS Ex. 7. The notice also advised

If you submitted documentation to the State Board for Social Work in New York prior to December 31, 2004, which can substantiate that you do meet the state requirements as a LCSW, but your application has not been processed due to a backload with the Board, you may submit that information to us within 15 calendar days of this letter. If we are able to verify that you meet the requirements for licensure as an LCSW in New York, we will suspend any revocation action pending the receipt of your licensure. If you are unable to verify your qualifications, we will continue the revocation process.

CMS Ex. 7. The notice also advised the recipient of her right to request a hearing before a carrier hearing officer. Petitioner requested such review, and, in a decision dated December 22, 2005, the carrier hearing officer affirmed the carrier determination.

Petitioner Stevens now appeals that determination. ⁽³⁾ The matter was initially assigned to Judge Anne E. Blair, and following her departure from the Civil Remedies Division, the matter is before me for decision.

CMS has filed its motion for summary judgment, accompanied by ten exhibits (CMS Exs. 1-10). Petitioner has filed her response (P. Resp.). CMS declined to file a formal reply, but has submitted a short letter, purportedly "to correct a misstatement of law in Petitioner's brief," and included a copy of the newly promulgated regulations governing supplier and provider enrollment appeals, 71 Fed. Reg. 20754 (April 21, 2006). CMS Reply. By letter dated August 3, 2006, Petitioner responded to CMS's submission. (P Sur-reply).

Discussion

1. Petitioner was not eligible to participate in the Medicare program between September 9, 2005, and February 6, 2006, because she was not properly licensed under state law. ⁽⁴⁾

I note that Petitioner Stevens does not suggest any facts in dispute nor argue that an in-person hearing is necessary. Instead, she responds to CMS's summary judgment motion by arguing, based on undisputed facts, that her Medicare billing privileges should not have been revoked. Because no material facts are in dispute, and the issue before me is purely legal, summary judgment is appropriate. See, Livingston Care Center v. CMS, DAB No. 1871, at 6(2003).

Prior to September 1, 2004, Petitioner Stevens was a certified social worker in New York who participated in the Medicare program as a clinical social worker. Her certification did not include the "P" or "R" designation, so when the law changed - creating the "LCSW" category - she did not automatically qualify. She instead became an LMSW.

Apparently unaware of the change in state law and/or its impact on her Medicare participation, she did not apply for her LCSW license until July 2005. Because she initially submitted the wrong form, she had to submit a second application, which is dated September 8, 2005. CMS Ex. 3. In the meantime, Empire revoked her Medicare billing privileges, effective September 9, 2005, a full year after the change in the New York licensure law. CMS Ex. 2, at 1. New York State subsequently approved her application and granted her a license effective February 6, 2006. Between September 9, 2005, and February 6, 2006, however, Medicare would not pay for the services she supplied because she was not then licensed as a clinical social worker under New York State law.

Under the plain language of the statute and regulations, Petitioner was simply not eligible to participate in the Medicare program between September 9, 2005, and February 6, 2006. Because the state in which she practiced provided for licensure as a clinical social worker, to continue participation in the Medicare program, she had to be licensed as a "clinical social worker." Act � 1861(hh)(1)(C)(i); 42 C.F.R. � 410.73(a)(3). She did not obtain that license until February 6, 2006.

Petitioner characterizes CMS's position as hyper-technical. She points out that she was at all times qualified to be licensed as an LCSW, and argues that her license should have been issued retroactive to the date of her application, if not before. But Petitioner did not meet all requirements prior to February 6, 2006, because the state required that her application be approved by the licensing board. This may be a purely "procedural requirement," but, as the Supreme Court has recognized, valid "procedural requirements" must be enforced to the same degree as substantive requirements. Schweiker v. Hansen, 450 U.S. 785, 790 (1981) ("A Court is no more authorized to overlook the valid regulations requiring that applications be in writing than it is to overlook any other valid requirement for the receipt of benefits.")

Moreover, the effective date of Petitioner's license was determined by the State of New York. I have no authority to review a state's licensing procedures, and Petitioner may not use this forum to attack collaterally the state's decision.

Nor do I agree that the revocation of Petitioner's billing privileges was the result of long delays in the state's processing of licensure applications. Petitioner did not file any application until more than ten months after the licensing law took effect, and she did not file the correct application until a year after the law's effective date. Moreover, CMS took into account potential delays in the state's processing of applications. Individuals wishing to continue their participation in the Medicare program as clinical social workers had a full year in which to obtain the necessary licenses. When the state's backlog was, at most, seven to eight months, CMS provided additional protections by allowing social workers to avoid revocation by showing that an application had been submitted prior to December 31, 2004. CMS Ex. 1, at (Wilkerson Decl. � 14).

Petitioner also argues that she received inadequate notice of the change in law and its impact on her Medicare participation. She acknowledges receiving notice on August 15, 2005, of the September 9, 2005 revocation. P. Resp. At 5. But, according to Petitioner, she, and "every provider affected should have been individually notified in time to be aware of the situation and effect a remedy if possible." Id. To support this proposition, Petitioner cites regulations governing termination of Medicare provider agreements under Part A of the program, 42 C.F.R. � 489.53(c). Those provisions - which give providers 15 days notice of termination - do not apply to this Part B case. Petitioner nevertheless argues that section 489.53 applies to "wrong doers" and, since she did nothing wrong, she is entitled to more notice than a "wrong doer." In fact, section 489.53 governs termination of a provider agreement for a variety of reasons, which include failure to comply with Medicare requirements, and do not necessarily involve conduct any more egregious than Petitioner's delay in applying for a license. 42 C.F.R. � 489.53(a)(1).

In her sur-reply, Petitioner argues that recent changes in the Medicare regulations support her claim of inadequate notice. CMS recently published regulations governing Medicare provider and supplier enrollment and revocation of provider/supplier billing privileges. 71 Fed. Reg. 20754 (April 21, 2006). Under these regulations, providers and suppliers must now periodically resubmit and recertify the accuracy of their enrollment information. CMS will contact each provider or supplier directly when it is time to revalidate enrollment information, and the provider/supplier must submit its enrollment application and supporting documentation within 60 days. 42 C.F.R. �  424.515(a). CMS also agrees to provide affected providers/suppliers at least 90 days notice of changes in its revalidation schedule. 42 C.F.R. � 424.515(d)(2).

Because Petitioner included this argument in her sur-reply, CMS did not have an opportunity to respond. However, even assuming that these notice requirements could otherwise apply to Petitioner's situation (which is questionable), I need not consider that issue here, since the regulations have an effective date of June 20, 2006. 71 Fed. Reg. 20754. They do not govern Empire's September 2005 revocation of Petitioner's billing privileges. ⁽⁵⁾

The manual provisions in effect when Petitioner's billing privileges were revoked required 15 days notice of the carrier determination that the practitioner no longer met Medicare requirements. Medicare Program Integrity Manual (MPIM) Ch. 10, section 19A (CMS Ex. 10, at 2). Under those provisions, Petitioner received adequate notice. ⁽⁶⁾

That Petitioner was not aware of the new licensing requirements seems remarkable. It is well-settled that, as a participant in the Medicare program, she had a duty to familiarize herself with the legal requirements for reimbursement. This includes knowledge of the statute, regulations, and manual provisions. Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 64 (1984). Further, under the Medicare regulations, providers and suppliers are expected to know what services are excluded from coverage (which would include social work services provided by an individual who does not meet licensing requirements) based on "receipt of CMS notices, including manual issuances, bulletins, or other written guides or directives from intermediaries, carriers, or QIOs" or Federal Register publications. 42 C.F.R. � 411.406(e)(1) and (2). Empire published notice of the new licensing rules and, as a participant in the Medicare program, Petitioner was obligated to pay attention to the carrier's directives.

Conclusion

Here, no material facts are in dispute, and, for the reasons discussed above, CMS is entitled to judgment as a matter of law. CMS's motion for summary judgement is therefore granted.

Carolyn Cozad Hughes

Administrative Law Judge

1. A Medicare provider or supplier who "accepts assignment" agrees to be paid directly by the Medicare program, and may not charge or collect from the program beneficiary any additional amounts except applicable coinsurance and deductibles. Act section 1842(b)(18)(B); 42 C.F.R. � 424.55(b).

2. To administer Medicare Part B, CMS contracts with private insurance companies called carriers. Among other duties, carriers process and pay claims for reimbursement, communicate information related to the administration of the Medicare program, and assist in discharging administrative duties necessary to carry out program purposes. Act � 1842(a).

3. Section 1866(j)(2) of the Social Security Act creates appeal rights for Medicare providers and suppliers whose applications to enroll or renew enrollment in the program have been denied. See section 936(a)(2) of the Medicare Prescription Drug, Improvement and Modernization Act of 2003, Pub.L. No. 108-173. Regulations governing review are found at 42 C.F.R. Part 498, and include hearings before an administrative law judge, with the right to request review by the Departmental Appeals Board.

4. There are no disputed issues of fact in this case. I make this one conclusion of law.

5. Petitioner also points to the newly-promulgated regulations to argue that she was entitled to an opportunity to correct. 42 C.F.R. � 424.535(a)(1). Again, this regulation became effective well after Petitioner's billing privileges were revoked, so does not directly apply to her situation. Even if it did, Petitioner was in fact given an opportunity to correct. She was no longer eligible to participate in Medicare as of September 1, 2004. Empire published notice on October 12, 2004. CMS did not revoke her billing privileges until almost a year later, which should have afforded her ample opportunity to correct. I note also that, under the new regulations, providers/suppliers must timely notify CMS of changes affecting enrollment. 42 C.F.R. � 424.520(b). Under this provision, Petitioner might arguably have been required to notify CMS that she no longer met the licensing requirements for Medicare participation.

6. Under the newly-promulgated regulations, revocation becomes effective "within 30 days of the initial revocation notification." 42 C.F.R. � 424.535(f). This seems to mandate that CMS provide no more than 30 days notice.