Louidor Alliance, M.D., DAB CR5330 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS) revoked the Medicare enrollment and billing privileges of Louidor Alliance, M.D. (Dr. Alliance or Petitioner) for certifying on a revalidation enrollment application that he had not been subject to a final adverse action when his medical license had been recently suspended by the Florida Board of Medicine. Dr. Alliance requested a hearing to dispute the revocation, arguing that he did not intend to make a false or misleading statement about his suspension and CMS's enrollment application was unclear. Because a license suspension is a final adverse action and Dr. Alliance certified as true that he had not been subject to such an action, I affirm CMS's revocation.

I. Case Background and Procedural History

Petitioner is a physician who was enrolled to provide health care services to Medicare beneficiaries and receive reimbursement from the Medicare program. On April 20, 2017, a CMS administrative contractor revoked Petitioner's Medicare enrollment and billing privileges, effective May 20, 2017, for the following reason:

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42 CFR §424.535(a)(4) – False or Misleading Information

On your [CMS] 855 enrollment application, signed on September 28, 2016, you answered "no" in section three of the application indicating that you did not have any adverse legal history. The State of Florida Board of Medicine suspended your Florida medical license, effective August 18, 2016. A medical license suspension is a final adverse action, as defined by 42 CFR §424.502.

CMS Exhibit (Ex.) 7 at 1 (emphasis in original). The notice stated that the CMS contractor imposed a three-year re-enrollment bar beginning "30 days after the postmark of this letter." CMS Ex. 7 at 2.

Petitioner, through counsel, requested reconsideration. CMS Ex. 1. Petitioner asserted that he had a Florida medical license that permitted him to only practice at Area of Critical Need (ACN) facilities, and was disciplined by the Florida Board of Medicine for twice violating the terms of his licensure. CMS Ex. 1 at 2. Petitioner further argued that "[t]he instances that resulted in the 30-day suspension of Dr. Alliance's license did not involve acts detrimental to the best interests of any Medicare beneficiary, or the Medicare Program." CMS Ex. 1 at 3. Finally, Petitioner stated that he had been advised by previous counsel that his suspension had been reported to all necessary agencies, including CMS, and that "Dr. Alliance ... did not falsely certify the information in the enrollment application because he thought it was accurate at the time he submitted it to CMS, based upon the advice he received from his prior attorney." CMS Ex. 1 at 3-4.

On September 8, 2017, a CMS hearing officer issued a reconsidered determination upholding the revocation of Petitioner's billing privileges, which stated:

Dr. Alliance contends that his failure to check the correct box in the Medicare revalidation application was unintentional. However, the existence of intent is not required for CMS to properly implement a revocation under 42 C.F.R. § 424.535(a)(4). Furthermore, Dr. Alliance does not dispute that he did not report the medical license suspension as a final adverse legal action on his Medicare revalidation application, nor does he dispute that his Florida medical license had, in fact, been suspended on August 18, 2016.

When Dr. Alliance signed his Medicare revalidation application, Dr. Alliance certified as true that he disclosed all final adverse legal actions imposed against him. Therefore, CMS finds that Dr. Alliance's failure to disclose the

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suspension of his Florida medical license, in addition to his signing the certification statement that his application was true, complete, and accurate, constitutes certifying as true false or misleading information.

CMS Ex. 8 at 6-7.

On November 6, 2017, Petitioner timely filed a request for a hearing with the Departmental Appeals Board, Civil Remedies Division. Petitioner (P.) Ex. 1. Judge Leslie A. Weyn was assigned to this case and, on November 9, 2017, issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order). In conformance with the Pre-hearing Order, CMS filed a brief and motion for summary judgment, along with eight proposed exhibits (CMS Exs. 1-8). CMS did not offer any witness testimony. Petitioner filed a pre-hearing brief (P. Br.) along with 5 proposed exhibits (P. Exs. 1-5), two of which were written direct testimony from Petitioner and his expert witness, Kathryn Moghadas, RN (P. Exs. 4-5).

On November 20, 2018, I was assigned to hear and decide this case.

II. Decision on the Record

Because neither party objected to any of the proposed exhibits, I admit CMS Exs. 1-8 and P. Exs. 1-5 into the record. Pre-hearing Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 14(e).

The Pre-hearing Order advised the parties that an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine a witness. Pre-hearing Order ¶¶ 8, 9; CRDP § 16(b); see Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross‑examine those witnesses). Petitioner submitted written direct testimony for two witnesses; however, CMS did not request to cross-examine either of those witnesses. Therefore, a hearing in this case is unnecessary and I decide this case based on the written record. Pre-hearing Order ¶¶ 10, 11; CRDP § 19(b), (d).

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III. Issue

Whether CMS had a legitimate basis to revoke Petitioner's billing privileges under 42 C.F.R. § 424.535(a)(4).

IV. Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold below.

To maintain Medicare billing privileges, providers and suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time. 42 C.F.R. § 424.515. When CMS notifies providers and suppliers that it is time to revalidate, the providers or suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS's notification. 42 C.F.R. § 424.515(a)(2).

1. Effective with the filing of a "Final Order" on August 18, 2016, the Florida Board of Medicine suspended Petitioner's medical license for 30 days.

The Florida Department of Health filed Administrative Complaints with the Florida Board of Medicine alleging that Petitioner engaged in misconduct and seeking disciplinary sanctions. CMS Exs. 2-3. On June 7, 2016, Petitioner entered into a Settlement Agreement with the Florida Department of Health in which he stipulated that he engaged in misconduct and agreed to the imposition of disciplinary sanctions, including a $15,000 fine and a suspension of Petitioner's Florida medical license "for a period of one (1) month." CMS Ex. 5. The Florida Board of Medicine issued a "Final Order" on August 16, 2016, approving and adopting "in toto" the Settlement Agreement. CMS Ex. 4 at 1. The Final Order stated that it would take effect upon being filed with the Clerk of the Department of Health, which occurred on August 18, 2016. CMS Ex. 4 at 1, 3.

2. Petitioner indicated, on a Medicare enrollment application that CMS received on September 28, 2016, that he had not been subject to a final adverse legal action.

On September 28, 2016, CMS received an electronically filed enrollment application from Petitioner. CMS Ex. 6 at 1. Petitioner submitted the application to "revalidate[e] Medicare enrollment information." CMS Ex. 6 at 1. Petitioner electronically signed the certification statement attesting to the information provided in the application. See CMS Ex. 6 at 1. In section 3 of the application, entitled "FINAL ADVERSE LEGAL ACTIONS," Petitioner answered "no" to the question: "Has a final adverse action ever been imposed against applicant under any current or former name or business entity?" CMS Ex. 6 at 2.

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3. CMS had a legitimate basis to revoke Petitioner's enrollment and billing privileges in the Medicare program under 42 C.F.R. § 424.535(a)(4), because Petitioner certified as true misleading or false information about the suspension of his Florida medical license on an enrollment application filed to maintain enrollment in the Medicare program.

A physician who participates in the Medicare program is considered to be a "supplier." 42 U.S.C. § 1395x(d). The Social Security Act (Act) authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers. 42 U.S.C. §§ 1302, 1395cc(j).

Under the regulations, a supplier must enroll in the Medicare program to receive payment for covered Medicare items or services. 42 C.F.R. § 424.505. A provider or supplier seeking billing privileges under the Medicare program must "submit enrollment information on the applicable enrollment application. Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program." 42 C.F.R. § 424.510(a). To maintain Medicare billing privileges, providers and suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time. 42 C.F.R. § 424.515. When CMS notifies providers and suppliers that it is time to revalidate, the providers or suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS's notification. 42 C.F.R. § 424.515(a)(2).

Section 424.535(a)(4) states that CMS may revoke a supplier's Medicare enrollment and billing privileges under the following circumstance:

False or misleading information. The provider or supplier certified as "true" misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.

42 C.F.R. § 424.535(a)(4).

In the present case, Petitioner electronically filed an enrollment application with CMS for the purpose of revalidating his enrollment information in order maintain his enrollment as a Medicare supplier. On that application, Petitioner stated that he had not been subject to a final adverse action. Petitioner electronically signed the certification statement as to the accuracy of that answer. CMS Ex. 6.

In this proceeding, Petitioner's written testimony neither disputes that he was subject to a Florida Board of Medicine suspension nor that he indicated on the Medicare enrollment

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application that he had not been subject to a final adverse action. Rather, Petitioner testified that he had never previously completed a Medicare enrollment application, he misunderstood the term final adverse legal action, and the electronic enrollment application he completed did not provide an explanation that a medical license suspension would qualify as a final adverse legal action. Further, Petitioner explained that "I thought this section referred to actual lawsuits in court, not a disciplinary matter by the Florida Board of Medicine." P. Ex. 4.

In support of Petitioner's testimony, Petitioner's expert witness testified that:

Unlike the Medicare 855I paper application, the [electronic enrollment application] does not reveal the definition of "adverse legal actions/convictions," or the instructions on completing the section on "adverse legal actions/convictions" unless the applicant first answers yes to the question on "adverse legal actions/convictions." It is entirely possible for an applicant to answer the question regarding "adverse legal actions/convictions" [on the electronic enrollment application] without seeing the instructions defining "adverse legal actions/convictions."

P. Ex. 5 at 1.

Petitioner's defense is insufficient to avoid revocation. The evidence of record and Petitioner's testimony show that all of the regulatory elements for revocation under § 424.535(a)(4) are met. The enrollment regulations define a "Final adverse action" to include "[s]uspension or revocation of a license to provide health care by any state licensing authority." 42 C.F.R. § 424.502. The suspension of Petitioner's medical license by the Florida Board of Medicine clearly meets this definition. Therefore, Petitioner certified, as true, false information when he said on the revalidation enrollment application that he was not subject to a final adverse legal action.

Petitioner essentially argues that he made a mistake as to the meaning of the term "final adverse legal action" and that CMS's failure to define that term on the electronic enrollment application absolves him of responsibility for his decision to indicate that he was not subject to such an action. However, Petitioner is a well-educated physician (P. Ex. 3) and should have known that, when asked if he was subject to a final adverse action, he needed to inquire with CMS about his medical license suspension. As it turns out, his question was easily answered by quick reference to the definition section of the enrollment regulations, which were codified and accessible in the Code of Federal Regulations.

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Petitioner could hardly have failed to have recalled his license suspension at the time he completed the revalidation enrollment application. The suspension had only become effective the month before he filed the revalidation enrollment application. In fact, his 30-day suspension would have been completed shortly before he answered the question concerning the final adverse action.

Petitioner testified that he simply did not consider a proceeding before the Florida Board of Medicine to be a legal action, similar to a lawsuit in court. P. Ex. 4. Petitioner's position strains credulity. The document that initiated his disciplinary action was called an "Administrative Complaint" and contained a case caption commonly used in court cases. CMS Ex. 3 at 1. The allegations of misconduct were introduced as "COUNT ONE" and "COUNT TWO," again a common method in a criminal complaint, indictment, or information. CMS Ex. 3 at 3-4. The Administrative Complaint was signed by an attorney with the title Assistant General Counsel from the Department of Health "Prosecution Service Unit." CMS Ex. 3 at 6. Further, Petitioner entered into a Settlement Agreement to resolve the complaint and the Florida Board of Medicine issued a Final Order approving the settlement agreement. CMS Exs. 4-5. These last two documents also contained case captions and are unmistakably part of a legal action.

A "physician" in the Medicare program is "a doctor of medicine ... legally authorized to practice medicine and surgery by the State in which he performs such function or action . . . ." 42 U.S.C. § 1395x(r)(1); 42 C.F.R. § 410.20(b). A supplier's signature on an enrollment application "attests that the information submitted is accurate ... ." 42 C.F.R. § 424.510(d)(3). The suspension of Petitioner's medical license was germane to CMS's consideration of his revalidation enrollment application, and Petitioner should have ensured that the answer he gave to the question of a final adverse action was accurate. Petitioner did not do this. Therefore, he is subject to revocation, even if Petitioner did not intend to provide false or misleading information. Mark Koch, D.O., DAB No. 2610 at 4-5 (2014).

4. I do not have jurisdiction to review the length of the re-enrollment bar imposed in this case.

Whenever CMS has properly imposed revocation on a supplier, CMS must also determine how long the supplier will be barred from seeking re-enrollment as a supplier. The regulations at 42 C.F.R. § 424.535(c)(1) provide that "[t]he re-enrollment bar begins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 3 years, depending on the severity of the basis for revocation."

The CMS contractor imposed a three-year re-enrollment bar on Petitioner. CMS Ex. 7 at 2. Petitioner argues that CMS should not have imposed a three-year bar based on the facts in this case. P. Br. at 10.

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I am unable to consider Petitioner's arguments. The length of the re-enrollment bar CMS imposes is not a determination subject to review by an administrative law judge. Vijendra Dave, M.D., DAB No. 2672 at 9 (2016) ("our authority in a revocation case does not extend to reviewing the length of the reenrollment bar imposed by CMS.").

V. Order

I affirm CMS's revocation of Petitioner's Medicare enrollment and billing privileges.