SUBJECT:

Kirtis Thomas,

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, Wisconsin Physicians Service Health Insurance (the Carrier), of Petitioner Kirtis Thomas' (Petitioner) application for the reactivation of his previous 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 psychologist.

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: 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 the Centers for Medicare & Medicaid Services (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 govern the provision of clinical psychologist services and services and supplies incident to clinical psychologist services. The regulations also set forth the qualifications required to be enrolled in the Medicare program as a clinical psychologist. ⁽¹⁾ Specifically, 42 C.F.R. � 410.71, effective June 22, 1998 (63 Fed. Reg. 20,128), provides:

(a) Included services. (1) Medicare Part B covers services furnished by a clinical psychologist, who meets the requirements specified in paragraph (d) of this section, that are within the scope of his or her State license, if the services would be covered if furnished by a physician or as an incident to a physician's services.

* * * *

(d) Qualifications. For purposes of this subpart, a clinical psychologist is an individual who -

(1) Holds a doctoral degree in psychology; and

(2) Is licensed or certified, on the basis of the doctoral degree in psychology, by the State in which he or she practices, at the independent practice level of psychology to furnish diagnostic, assessment, preventive, and therapeutic services directly to individuals.

II. Factual and Procedural Background

Petitioner's Medicare PIN was deactivated in January 2002. His subsequent efforts to apply for a Medicare PIN were unsuccessful, and are not at issue in this action before me. ⁽²⁾ In this current case, Petitioner submitted form CMS 855I (Medicare Federal Health Care Practitioner Enrollment Application - Application for Individual Health Care Practitioners), signed and dated July 1, 2004, for reactivation of his PIN to bill for services as a clinical psychologist. ⁽³⁾ On page 11, Petitioner checked all boxes in Section "G. Clinical Psychologists - Questionnaire" as "yes" except for Question 1, for which he checked "no," indicating that he did not "hold a doctoral degree in psychology." He included copies of two professional licenses from the State of Michigan: "Psychologist - Limited License - Masters," with an expiration date of 8/31/2005; and a "Professional Counselor License," with an expiration date of 5/31/2007.

By letter dated August 31, 2004, the Carrier denied Petitioner's application for reactivation on the grounds that he "[did] not meet CMS regulatory requirements for the specialty. Per 42 C.F.R. � 410.71, 410.73." By letter dated September 22, 2004, Petitioner appealed the denial of reactivation of his PIN and requested a hearing. He noted that he was "but one of hundreds of master level psychologist [sic] in the state of Michigan, who were issued Medicare provider numbers only to perform psychological testing."

On December 20, 2004, the Hearing Officer conducted a hearing by telephone. By decision dated January 19, 2005, the Hearing Officer upheld the Carrier's determination that Petitioner's previous Medicare PIN could not be reactivated. In the decision, the Hearing Officer noted Petitioner's testimony that he has a Bachelor's Degree in Psychology and a Master of Arts in Guidance Counseling and Psychology. She noted further that the evidence in the file included copies of his two licenses. The Hearing Officer stated that Petitioner's application could not be approved because he does not possess a doctoral degree in psychology. She advised Petitioner of his appeal rights, and that he could appeal the decision to the CMS Office of Hearings in Baltimore, Maryland.

By letter dated February 1, 2005, Petitioner submitted his request to appeal to the CMS Office of Hearings. Petitioner's request, received at the Office of Hearings on February 9, 2005, was forwarded to the Civil Remedies Division, DAB, and the case was docketed as a timely appeal.

I held a telephone prehearing conference with the parties on June 29, 2005. ⁽⁴⁾ Petitioner elected to proceed pro se. I set a schedule for the parties to file additional submissions and directed that a copy of all submissions be served on the other party. See Order and Schedule, dated July 5, 2005. A copy of the documents forwarded by CMS was sent to Petitioner with his copy of the Order and Schedule. ⁽⁵⁾

Subsequently, Petitioner submitted a letter dated July 29, 2005. In his letter, Petitioner argues first that there are "master level psychologist [sic] who have active Medicare Provider #" and, as a result, he is "unable to compete." Secondly, Petitioner alleges that when he received his PIN, he was told that if it ever lapsed due to inactivity, it could be reactivated simply by sending a letter. Thirdly, Petitioner contends that he relied on these statements from Medicare or he would not have let his PIN lapse. Finally, Petitioner asserts that he was given his number in 1997 and he understands that it was deactivated on January 1, 2002. He states that based on his "agreement with Medicare," he submitted his request to reactivate his PIN but it was "unexpectedly" denied. Petitioner concludes his letter by requesting reactivation of his PIN to the date of his initial request.

By letter dated August 31, 2005, Ms. Jones submitted CMS's response to Petitioner's submission. She indicated that some psychologists with Master's degrees may have active PINs but if they do not use their PINs, the PINs will be deactivated. Ms. Jones stated that if those psychologists wish to reactive their PINs or apply for a new PIN and only have a Master of Arts degree, the requests would be denied. She stated that they would have to possess a doctorate in psychology for their applications to be approved.

To ensure that the record of this case was complete before I issued a decision, I sent copies of the case record to the parties for their review and concurrence. I gave the parties the opportunity to notify me in writing if the case record did not reflect their understanding of the record. Neither party objected to the record or to the issuance of a decision based thereon. Accordingly, I have admitted ALJ Exs. 1 - 7 into the record of this case.

III. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is:

Whether Petitioner satisfies the necessary requirements for reactivation of a previous Medicare PIN as a clinical psychologist.

B. Findings of fact and conclusions of law

Petitioner does not meet the requirements to qualify as a clinical psychologist under the regulations, and therefore, his Medicare PIN cannot be reactivated.

After the June 22, 1998 effective date of the regulations governing clinical psychologist services, Petitioner was required to meet certain revised requirements in order to qualify for a PIN as a clinical psychologist under the Medicare program. Those requirements are set forth at 42 C.F.R. � 410.71(d) and include the requirement for a doctoral degree in psychology. In the preamble to the final regulations, CMS addressed a number of items, including why CMS was requiring a PhD degree in order to qualify for reimbursement as a "clinical psychologist (CP)." CMS explained:

Previously, we had established a definition of CP in regulations at � 417.416(d)(2). This definition was issued in final regulations in 1985 and has been used for purposes of coverage of CP services in HMOs and CMPs . . . .

As we stated in the proposed rule, while this CP definition in its entirety may have been appropriate for psychologists furnishing services in limited settings such as HMOs, CMPs, and community mental health centers, its use for purposes of the expanded benefit caused extensive concern among CPs. While we believe that there are provisions of the definition that remain appropriate even under the expanded benefit, we believe other provisions of the definition require some modification.

Under the expanded CP benefit, CPs are authorized to perform services that would otherwise be furnished by a physician, as well as accept responsibility for services furnished by others incident to their professional services. We believe that it is prudent for these practitioners to have a level of education that is close to that which physicians receive if they are going to perform in this capacity. Even though a few States may license psychologists with master's degrees at the independent practice level to furnish both diagnostic and treatment services, we want to ensure that only those practitioners with the highest level of education, knowledge, and experience furnish services to Medicare beneficiaries.

Additionally, we believe that the requirement for a doctoral degree is the standard for psychologists who are qualified to furnish services and supervise the services of others, as evidenced by the industry and by other Federal programs. Information from the Association of State and Provincial Psychology Boards indicates that 32 States and the District of Columbia do not license or certify psychologists below the doctorate level, and most of the 18 States that do license

or certify individuals at the masters level require supervision of the individual's services by a doctorate level psychologist. Over 90 percent of psychologists licensed or certified for independent clinical practice do have doctoral degrees.

63 Fed. Reg. 20,110, 20,115 (April 23, 1998) (emphasis in original). ⁽⁶⁾

Based on the record before me, there is no evidence that Petitioner possesses a doctoral degree in clinical psychology as required by 42 C.F.R. � 410.71(d)(1). Petitioner himself indicated on his application that he does not have a doctoral degree in psychology. Petitioner thus fails to satisfy the basic requirement to qualify as a "clinical psychologist" under the regulations.

Petitioner raises several challenges to the denial of his PIN. He claims that it is difficult for him to compete with other psychologists with Master's degrees who retained their PINs. Additionally, he believes that the failure to renew his PIN is unfair because he relied on Medicare's previous representations that he could be reinstated after any lapse. Petitioner's claims, however, are essentially arguments for equitable relief, which I am without authority to grant. Pursuant to 42 C.F.R. Part 498, claims based on equitable or fairness considerations are beyond the scope of my authority to hear and decide. Hamilton House Nursing Center, DAB CR1064 (2003). I am bound by the explicit requirements of the regulation at 42 C.F.R. � 410.71(d), which mandates that an individual must have a doctoral degree in psychology in order to qualify as a clinical psychologist.

Because Petitioner does not meet the requirements to qualify as a clinical psychologist under the regulations, his Medicare PIN cannot be reactivated. I therefore affirm the Hearing Officer's determination to uphold the denial by the Carrier of Petitioner's application for reactivation of his Medicare PIN.

Marion T. Silva

Chief Administrative Law Judge

1. The requirements are based on section 6113 of the Omnibus Budget Reconciliation Act of 1989, section 4157 of the Omnibus Budget Reconciliation Act of 1990, and section 147(b) of the Social Security Act amendments of 1994.

2. After his PIN was deactivated in 2002, Petitioner applied to reactivate his Medicare PIN, and by letter dated November 11, 2002, the Carrier denied his application on the grounds that he did not meet the regulatory requirements for his specialty per 42 C.F.R. �� 410.73 and 410.71. Petitioner appealed the denial of his application and requested a hearing by telephone. On February 6, 2003, the Hearing Officer conducted a telephone hearing. By decision dated February 25, 2003, the Hearing Officer upheld the Carrier's determination denying Petitioner's application for a PIN. The Hearing Officer stated in the decision that Petitioner's application could not be approved because he does not possess a doctoral degree in psychology.

3. 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 "reactivation."

4. Ms. Janice Jones, Medicare Hearing Officer, participated in the telephone conference and submitted documentation on behalf of CMS. Although later requested to submit a formal notice of appearance, she failed to do so. Nonetheless, I find no prejudice to Petitioner and issue my decision based on the record forwarded to the parties for review by letter dated March 27, 2006, and closed without objection.

5. Because CMS had not formally marked its documents as numbered exhibits, I have identified and marked the documents as ALJ Exhibits (ALJ Ex.) 1 - 7 to establish a proper formal record. ALJ Ex. 1 (46 pages) is Petitioner's completed July 1, 2004 form CMS 855I Application; ALJ Ex. 2 (5 pages) is the Carrier's August 31, 2004 letter to Petitioner denying his application for reactivation; ALJ Ex. 3 (2 pages) is Petitioner's September 22, 2004 letter requesting a hearing before a hearing officer; ALJ Ex. 4 (9 pages) is the Hearing Officer's January 19, 2005 decision; ALJ Ex. 5 (3 pages) is a May 6, 2005 letter from the Civil Remedies Division requesting a copy of the administrative record in this matter; ALJ Ex. 6 (26 pages) consists of printouts of various federal regulations; and ALJ Ex. 7 (23 pages) consists of the Carrier's codes and coding guidelines in the area of psychiatry and psychology services.

6. The preamble to the final regulations noted that commenters had stated that master's level psychologists who were in practice would be excluded under the proposed "clinical psychologist" definition from participating in the Medicare program. The preamble noted further that these commenters requested "certification as a health service provider for master's level psychologists who were grandfathered and have been practicing since State licensure laws went into effect and who are listed in the National Register of Health Service Providers in Psychology." 63 Fed. Reg. 20,110, 20,118 (1998).

In response, the Health Care Financing Administration (the former name of CMS) stated:

[t]he State licensing boards that adopted grandfathering clauses used criteria that varied from State to State to determine who qualified. . . . [T]here has been no uniformly recognized standard for grandfathering. . . . [W]e do not believe it is appropriate to recognize as a CP any practitioner who lacks a doctorate. The few remaining masters level psychologists who have been grandfathered to practice in their individual States have not been recognized as CPs under our current instructions in the Medicare Carriers Manual. Therefore, continuing their exclusion from Medicare should not disrupt their practices and will have negligible impact on the overall availability of services to beneficiaries.

Id.