Jacqueline Leventhal, DAB CR5342 (2019)

DECISION

Petitioner, Jacqueline Leventhal, was a Nevada doctor of osteopathy who participated in the Medicare program until August 4, 2016, when the Centers for Medicare & Medicaid Services (CMS) revoked her enrollment, citing 42 C.F.R. § 424.535(a)(12).  CMS took this action because the Nevada Medicaid Agency terminated her Medicaid enrollment, effective July 22, 2014, and she had exhausted her appeal rights.

Petitioner now appeals the revocation. 

I find that, pursuant to 42 C.F.R. § 424.535(a)(12), CMS appropriately revoked Petitioner Leventhal’s Medicare enrollment because the Nevada Medicaid Agency terminated her Medicaid participation, and the state’s action was final.  I therefore affirm CMS’s determination.

Background

In a revocation notice, dated July 5, 2016, the Medicare contractor, Noridian Healthcare Solutions, revoked Petitioner Leventhal’s Medicare enrollment, effective August 4, 2016. 

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As the notice letter explains, the contractor acted pursuant to 42 C.F.R. § 424.535(a)(12) because the Nevada Medicaid Agency had terminated Petitioner’s Medicaid participation, and her appeal rights had been exhausted.  CMS Ex. 3.

Petitioner requested further review.  CMS Ex. 4.  In a reconsidered determination, dated August 5, 2016, the contractor affirmed the revocation, noting that Petitioner offered no evidence to show that her Medicaid enrollment “is in process/pending.”  CMS Ex. 1.

Petitioner appealed.  CMS has filed a motion for summary judgment (CMS Br.), and Petitioner filed a brief (P. Br.).

Exhibits.  With its motion, CMS submits four exhibits (CMS Exs. 1-4).  With her brief, Petitioner submits three exhibits (P. Exs. 1-3).  In the absence of any objections, I admit into evidence CMS Exs. 1-4.   

CMS objects to my admitting P. Exs. 1 and 2, arguing that Petitioner did not specifically identify the documents as “new,” which my pre-hearing order directs her to do.  My pre‑hearing order reflects the regulations governing these proceedings, which mandate that I exclude “new” documentary evidence, i.e., evidence not presented at the reconsideration, unless I find good cause for Petitioner submitting the evidence for the first time at the ALJ level.  42 C.F.R. § 498.56(e).  The documents in question are obviously new.  P. Ex. 1, titled “Notice of Revalidation in Nevada Medicaid,” is dated November 17, 2016, more than three months after the contractor issued its reconsidered determination.  Petitioner could not have submitted it at the reconsideration level because it did not then exist.  Similarly, P. Ex. 2 is a list of “Nevada Exclusions/Sanction.”  According to Petitioner, the document is dated December 12, 2016.  Petitioner’s Exhibit List at 2.  I see no evidence of that date; however, because the document includes “effective dates” of termination through late December 2016, I am satisfied that it was generated after the contractor issued its reconsidered determination. 

Although Petitioner did not specifically label these documents as “new evidence,” I am not going to penalize Petitioner, who is pro se, for failing to state the obvious. 

I therefore admit P. Exs. 1-3. 

Summary Judgment.  Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my pre-hearing order, I instructed each party to submit the written direct testimony of any proposed witnesses and, if it wished to cross-examine an opposing witness, to state so affirmatively.  Acknowledgment and Pre-hearing Order at 5 (¶¶ 8, 9) (October 7, 2016).  CMS has no witnesses.  Petitioner mentions one witness but has not submitted her written declaration, so that witness will not be allowed to testify.  Acknowledgment at 6 (¶ 12).  An in-person hearing would

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therefore serve no purpose, and I may decide this case based on the written record.  See Acknowledgment at 5 (¶ 10).

Discussion

Pursuant to 42 C.F.R. § 424.535(a)(12), CMS properly revoked Petitioner Leventhal’s Medicare enrollment because the Nevada State Medicaid Agency terminated her Medicaid billing privileges, and the state agency’s action is final.1

Statute and regulations.  CMS regulates the Medicare enrollment of providers and suppliers.  Social Security Act (Act) § 1866(j)(1)(A).  It may revoke a supplier’s enrollment in the Medicare program if a state Medicaid agency has terminated her Medicaid billing privileges, and she has exhausted all applicable state appeal rights.  42 C.F.R. § 424.535(a)(12).  So long as I find that these two criteria are met, I must sustain the revocation.  Douglas Bradley, M.D., DAB No. 2663 at 6-7, 16 (2015), citing Letantia Bussell, M.D., DAB No. 2196 at 13 (2008).

Termination of Petitioner’s Medicaid billing privileges.  In a letter dated July 22, 2014, the Nevada Medicaid Agency (Nevada Department of Health and Human Services, Division of Health Care Financing and Policy) advised Petitioner that, effective immediately, it was terminating its contractual relationship with her.  CMS Ex. 2.  The Medicaid Agency took this action because Petitioner’s professional license had been suspended, effective June 13, 2014.  CMS Ex. 2. 

Petitioner does not claim that she appealed the state’s action.

CMS thus had the authority to revoke Petitioner’s Medicare enrollment. 

Petitioner submits evidence that she subsequently reapplied to the state agency and that her Medicaid billing privileges have been reinstated.  Hearing Request Attachment (document 1c); P. Exs. 1, 2; see CMS Ex. 4.  Assuming the impediment to her re-enrollment has been removed, Petitioner may reapply for enrollment after her re-enrollment bar ends (which it has).  42 C.F.R. § 424.535(c).  But this does not invalidate the revocation.

Petitioner also claims that the State Medicaid Agency made a mistake and her witness, a representative from that agency, “might testify” that she was placed on the Medicaid exclusion list “inappropriately.”  P. Br. at 2.  Petitioner had an opportunity to challenge her Medicaid exclusion through the state’s review process, and she opted not to take that opportunity.  Termination of her Medicaid participation was therefore final.  To be

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reinstated, she had to reapply, which she did.  And, in her September 29, 2016 Medicaid application, she discloses that her medical license was suspended from June 12, 2014, through April 15, 2015.  Hearing Request Attachment (document 1c at 5).  She also submits a September 28, 2015 letter from the Nevada Board of Osteopathic Medicine, confirming that her license was suspended, that she successfully participated in what appears to be a substance abuse rehab program, and that she was cleared to practice medicine (with conditions), effective April 15, 2015.  Hearing Request Attachment (document 1c at 18).  These documents confirm that Petitioner lost her medical license and was subsequently terminated from participating in the state Medicaid program.      

Conclusion

I affirm CMS’s determination.  I find that CMS was authorized to revoke Petitioner Leventhal’s Medicare enrollment because the Nevada Medicaid Agency terminated her participation in the state program, and she did not appeal.  CMS was therefore authorized to revoke her Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(12).   

• 1. I make this one finding of fact/conclusion of law to support my decision.