SUBJECT:

Rosalyn L. Olian,

Petitioner,

Centers for Medicare & Medicaid Services/Wisconsin Physicians Services.

DECISION

I affirm the determination of the Medicare Part B Hearing Officer (the Hearing Officer) to uphold the denial by the Medicare Part B Carrier, Wisconsin Physicians Services (the Carrier), of Petitioner Rosalyn Olian'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 psychologist or clinical social worker.

I. APPLICABLE AUTHORITY

Section 1866(j) of the Social Security Act (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).

Section 1861 of the 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.

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. � 410.71(d) sets forth the qualifications required to be enrolled in the Medicare program as a clinical psychologist. A clinical psychologist is defined as 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.

42 C.F.R. � 410.71(d).

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 August 2, 2004, to apply for a Medicare PIN and enroll as a provider in the Medicare program. ⁽¹⁾ Under the category, "Non-Physician Specialty," Petitioner checked "Licensed clinical social worker" and wrote in, "LCPC - Licensed Clinical Professional Counselor." In her application, she included a copy of her State of Illinois license as a clinical professional counselor and a copy of a "certificate of completion of degree requirements" from the Boston University School of Education.

By letters dated September 30, 2004, and November 9, 2004, the Carrier notified Petitioner that her application for a Medicare PIN was denied because she "[did] not meet CMS regulatory requirements for the specialty. Per 42 CFR 410.71/410.73."

Petitioner appealed the decision to the Carrier, and the Hearing Officer conducted an in-person hearing on May 19, 2005. The Hearing Officer issued a decision on May 20, 2005 (Hearing Officer decision) upholding the Carrier's denial of Petitioner's application for a Medicare PIN. The Hearing Officer noted Petitioner's qualifications: a bachelor's degree in psychology, a teaching certificate, a master's degree in counseling with additional academic credits after the completion of her degree, and additional experience through internships, supervised experience, and private practice. Hearing Officer Decision at 2. The Hearing Officer also noted Petitioner's assertion that her qualifications are between those of a clinical psychologist and a social worker. Id.

The Hearing Officer determined that Petitioner did not satisfy the enrollment requirements of the Medicare Part B Program. Specifically, the Hearing Officer noted that Medicare guidelines require Petitioner to hold a doctoral degree in psychology, or a master's or doctoral degree in social work. Hearing Officer Decision at 3. Without evidence of these degrees, the Hearing Officer found that Petitioner's qualifications did not meet the regulatory requirements set forth in 42 C.F.R. �� 410.71 and 410.73.

By letter dated June 29, 2005, Petitioner submitted a timely appeal of the Hearing Officer's decision. Petitioner asserted that she has a master's degree in counseling and rehabilitative counseling, and a license in the State of Illinois as a clinical professional counselor which she included with her letter. See Request for ALJ Hearing, June 29, 2005 Letter. She also stated that she has twenty years of experience and provides mental health services for Blue Cross-Blue Shield. Id. Petitioner argued that her designation as a licensed clinical professional counselor is newer but "no less sound" than the "LSW," i.e., licensed clinical social worker, designation. Id.

The case was assigned to me for a hearing and decision. I held a prehearing telephone conference on November 16, 2005, during which Petitioner proceeded pro se. See November 17, 2005 Order at 2. Petitioner reiterated her belief that her qualifications are greater than the qualifications required for a licensed social worker under 42 C.F.R. � 410.73. Id.

Based on the parties' positions at the prehearing conference, I issued an order dated November 17, 2005, directing the parties to provide me with more information. Specifically, I asked them to provide information about the Medicare guidelines' treatment of non-physician specialties and the State of Illinois' qualifications for licensed clinical professional counselors. See November 17, 2005 Order at 2. The parties provided the requested information by letters dated December 8, 2005, and December 9, 2005.

In a letter to the parties dated January 31, 2006, I reviewed the qualifications for a clinical psychologist and clinical social worker as set forth in 42 C.F.R. �� 410.71 and 410.73, respectively. I noted that Petitioner cannot be enrolled as a provider as a clinical psychologist because she does not have a doctoral degree in psychology. See 42 C.F.R. � 410.71(d)(1). I also noted that although Petitioner does not have a master's or doctoral degree in social work, the Illinois regulatory scheme makes almost no distinction in its definitions of "clinical social work practice" and "clinical professional counseling." I reasoned that Petitioner's Illinois license and her supervised work experience may satisfy the federal regulatory requirements for a clinical social worker under 42 C.F.R. �� 410.73(a)(3)(i) and (ii). Accordingly, I directed Petitioner to submit more detailed information about her supervised work experience and I allowed the Carrier to submit a response.

In a facsimile dated February 22, 2006, Petitioner provided a summary of her supervised experiences under "Master's degree level supervising counselors." These experiences included: (1) two years supervised counseling at Boston State Mental Hospital under Dr. John Gilmore, a professor of psychology at Boston University; (2) two years supervised counseling at Stoneham High School under a "Master's degree level head counselor;" (3) one year supervised counseling and case management under head counselor, Dr. Linda Henry; (4) one year supervised counseling at Thurgood Marshall Middle School; and (5) nine additional years counseling experience at Thurgood Marshall Middle School. Petitioner also included a list of her teaching and counseling certificates from Illinois, Massachusetts, and Idaho. She argued that her Illinois license as a clinical professional counselor satisfies the federal definition of a licensed clinical social worker.

The Carrier submitted a Response on February 14, 2006. The Carrier argues that Petitioner does not qualify for a Medicare PIN because she does not meet the federal qualifications for a clinical psychologist or clinical social worker as set forth in 42 C.F.R. �� 410.71(d) and 410.73(a)(1) through (3). The Carrier also argues that Petitioner's license and work experience do not satisfy 42 C.F.R. �� 410.73(a)(3)(i) and (ii) because she is not licensed at the highest level of social work practice provided for by the State of Illinois.

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 psychologist or as a clinical social worker.

B. Findings of Fact

1. Petitioner has not satisfied the requirements to obtain a Medicare PIN as a clinical psychologist or as a clinical social worker.

As noted above, Section 1861 of the Act specifically defines the medical and other health care services that are eligible for Medicare reimbursement. For non-physician practitioners in the area of mental health services, the Act includes "qualified psychologist services" ⁽²⁾ and "clinical social worker services (as defined in [the relevant subsection]). ⁽³⁾ Act, section 1861(s)(2)(M) and (N). As the definitions indicate, the only non-physician practitioners who are eligible for Medicare reimbursement for these types of services are clinical psychologists and clinical social workers. To receive a Medicare PIN, therefore, Petitioner must show that she meets the credentialing requirements for clinical psychologists or clinical social workers as set forth in 42 C.F.R. �� 410.71(d) and 410.73(a)(1)-(3).

Under section 410.71(d), a clinical psychologist is someone who has a doctoral degree in psychology and satisfies a licensure/certification requirement. See 42 C.F.R. � 410.71(d)(1)-(2). Petitioner has provided no evidence that she possesses a doctoral degree in psychology, nor has she claimed that she holds this degree. Thus, I find that Petitioner does not meet the requisite qualifications for a clinical psychologist.

I also find that Petitioner does not meet the requisite qualifications for a clinical social worker. A clinical social worker is someone who satisfies three criteria: s/he (1) possesses either a master's or doctor's degree in social work; (2) has at least two years of supervised clinical social work experience; and (3) satisfies a licensure/certification requirement. 42 C.F.R. � 410.73(a)(1)-(3).

Petitioner does not satisfy the first criteria because she does not possess a master's or doctor's degree in social work. See 42 C.F.R. � 410.73(a)(1). In fact, Petitioner possesses a master's degree in counseling. She argues, however, that her license as a clinical professional counselor from Illinois and supervised work experience are sufficient under the federal regulatory criteria. I empathize with Petitioner because it is hard to discern the differences in counseling provided by social workers versus professional counselors. Nonetheless, I am persuaded by CMS's brief pointing out that Congress has previously considered whether clinical professional counselors should participate in the Medicare program and has not amended the statute to include clinical professional counselors in the list of non-physician providers entitled to a Medicare PIN. CMS Br., at 10 - 11. I am required to follow the statute and the regulations. The regulation's language is unambiguous and explicitly requires a degree in social work, not counseling. See 42 C.F.R. � 410.73(a)(1) Moreover, I am persuaded that the licensure/certification requirements under 42 C.F.R. � 410.73(a)(3) are in addition to the social work degree requirement under 42 C.F.R. � 410.73(a)(1), not a substitute for it. Petitioner's license as a clinical professional counselor and her related work experience are thus irrelevant, and it is unnecessary to examine whether she satisfies 42 C.F.R. � 410.73(a)(2)-(3).

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

As discussed above, Petitioner does not qualify as a clinical psychologist or clinical social worker because she does not possess the requisite degrees. Accordingly, I find that Petitioner is not entitled to a Medicare PIN as a clinical psychologist or clinical social worker. I affirm the Hearing Officer's determination to uphold the denial by the Carrier of Petitioner's application for a Medicare PIN.

Anne E. Blair

Administrative Law Judge

1. The form CMS 8551 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. 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 also 42 C.F.R. �� 410.10(v), 410.71(a).

3. 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 also 42 C.F.R. �� 410.10(w), 410.73(b).