Mike C. Umerah, M.D., DAB CR5293 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative contractor, revoked the Medicare enrollment and billing privileges of Mike C. Umerah, M.D. (Dr. Umerah or Petitioner) for noncompliance with enrollment requirements and failure to report an adverse legal action.  42 C.F.R. § 424.535(a)(1), (9).  On reconsideration, the contractor upheld the revocation, but set October 13, 2016, as the effective date.  Dr. Umerah requested a hearing to dispute the revocation.  Based on the record, I conclude that Dr. Umerah was not in compliance with enrollment requirements because his medical license was suspended and Dr. Umerah failed to report that suspension to CMS.  However, I modify the effective date of revocation to October 21, 2016, because this is the date that the suspension commenced.

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 January 20, 2017, a CMS administrative contractor revoked Petitioner’s Medicare enrollment and billing privileges, effective December 5, 2017, for the following reasons:

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42 CFR §424.535(a)(1) – Not in Compliance with Medicare Requirements

The Arkansas State Medical Board placed your license in a suspended status on December 5, 2016.  By reason of this status, you are in noncompliance with the enrollment requirements for not being properly licensed.

42 CFR §424.535(a)(9) – Failure to Report Changes

You failed to comply with the reporting requirement specified in 42 CFR 424.516(d)(1)(ii), which pertains to the reporting of changes in adverse actions, within 30 days of the reportable event.

CMS Exhibit (Ex.) 7 at 1.  The notice stated that the CMS contractor imposed a three-year re-enrollment bar beginning “30 days after the postmark date of this letter.”  CMS Ex. 7 at 2.  Finally, the notice advised Petitioner that he had 30 days to file a Corrective Action Plan (CAP) and 60 days to file a request for reconsideration.  CMS Ex. 7 at 1-2.

In March 2017, Petitioner filed a timely reconsideration request.  Representing himself, Dr. Umerah stated that false accusations against him led to a five-week emergency suspension of his medical license and that the emergency suspension was imposed without appearing before a judge or having testing done to confirm the accusations made against him.  Dr. Umerah stated that after he received results from a drug test, he was reinstated.  CMS Ex. 3 at 1.  Dr. Umerah also submitted information from the Arkansas State Medical Board’s (Medical Board) website showing that Dr. Umerah’s emergency suspension commenced October 21, 2016, and that Dr. Umerah’s license was active again by early December 2016.  CMS Ex. 3 at 2-3.

On May 5, 2017, the CMS administrative contractor issued a reconsidered determination upholding the revocation of Petitioner’s billing privileges, which stated:

Mike Umerah, MD has not provided evidence to show full compliance with the standards for which you were revoked.  Dr. Umerah does not deny that his Arkansas medical license was suspended. . . . Due to the suspension of your Arkansas medical license by the Arkansas State Medical Board, the revocation applied to the file was correct.  Please note, the revocation date has been corrected to reflect October 13, 2016 to match the date of the emergency order of suspension.

CMS Ex. 1 at 2.

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In May 2017 Petitioner retained counsel and counsel filed a CAP; however, the CMS contractor rejected the CAP as untimely.  CMS Exs. 4-6.

On June 29, 2017, Petitioner timely filed a request for a hearing with the Departmental Appeals Board, Civil Remedies Division.  Judge Carolyn Cozad Hughes was assigned to this case and, on July 10, 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 nine proposed exhibits (CMS Exs. 1-9).  CMS noted in its pre-hearing submission that it did not offer any witnesses.  Petitioner filed a pre-hearing brief (P. Br.) along with 10 proposed exhibits (P. Exs. 1-10).  Petitioner listed himself as a witness, but did not submit written direct testimony as required under paragraphs 4(c)(iv) and 8 of the Pre-hearing Order.  Nevertheless, CMS submitted a request to cross-examine Petitioner.  Later, Petitioner submitted a new document, an Order of Dismissal issued by the Medical Board in December 2017.  DAB E-File Item # 30.  Petitioner did not mark this exhibit, therefore, I mark it as P. Ex. 11.

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. 1-9 and P. Exs. 1-11 into the record.  Pre-hearing Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 14(e).  I note that P. Ex. 11, which was filed later in this proceeding, was not in existence at the time of the reconsidered determination and, therefore, meets the requirement for new evidence to be admitted into the record.  42 C.F.R. § 498.56(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, and 10; CRDP § 16(b); see Vandalia Park, DAB No. 1940 (2004); Pacific 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).  Neither party submitted written direct testimony for any witnesses.  Therefore, a hearing in this case is unnecessary and I decide this case based on the written record.  CRDP § 19(b), (d).

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III. Issue

1. Whether CMS had a legitimate basis to revoke Petitioner’s billing privileges under 42 C.F.R. § 424.535(a)(1) and (a)(9).

2. If so, whether CMS properly set the effective date for revocation under 42 C.F.R. § 424.535(g).

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

My findings of fact and conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

In order to participate in the Medicare program as a supplier, individuals must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510, and 424.516.  CMS may revoke the Medicare billing privileges of suppliers who do not continue to comply with all enrollment requirements.  Id. § 424.535(a)(1).  CMS may also revoke the billing privileges of a supplier who fails to timely inform CMS of any adverse legal action taken against the supplier.  Id. §§ 424.516(d)(1); 424.535(a)(9).

1. Effective October 21, 2016, the Arkansas State Medical Board imposed an emergency suspension of Petitioner’s medical license.

On October 13, 2016, the Medical Board issued an Emergency Order of Suspension and Notice of Hearing to Petitioner.  That order stated that Petitioner was a licensed physician in Arkansas and that he was under investigation by the Drug Enforcement Administration for suspected opiate addiction and diverting patient medication to his own use.  The Medical Board ordered Petitioner’s license suspended pending a disciplinary hearing scheduled for December 1, 2016.  P. Ex. 1.  The emergency suspension took effect on October 21, 2016.  CMS Ex. 9 at 2.

2. Petitioner did not inform CMS or a CMS contractor of the emergency suspension.

Petitioner admitted that he did not inform CMS or a CMS contractor of the emergency suspension.

As Umerah was fighting the suspension at an administrative level, not practicing medicine or treating Medicare patients, and not taking other actions that would be inconsistent with the enrollment requirements, Umerah did not report the issue to CMS.  Had the [Medical Board] upheld the suspension

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following an hearing and Umerah been required to file litigation to seek reinstatement, he would have immediately reported such to CMS.

P. Ex. 7 at 2.

3. The Arkansas State Medical Board lifted the emergency suspension of Petitioner’s Medical License on December 1, 2016, as part of a Consent Order that placed conditions on Petitioner’s practice.

On December 1, 2016, the Medical Board held a hearing in Petitioner’s case.  The outcome of that proceeding was a Consent Order in which the Medical Board lifted the emergency suspension and Petitioner agreed to several conditions including:  taking two courses within a year; submitting patient charts for peer review when requested by the Medical Board; submitting to random drug screening; cleaning out his office of any and all pill bottles; and reimbursing the Medical Board $152.50 for the cost of its investigation and hearing.  CMS Ex. 8; P. Ex. 2.

4. On December 21, 2017, the Arkansas State Medical Board dismissed the case against Petitioner finding no evidence supported the allegations against Petitioner and noting that Petitioner complied with all conditions placed on his practice.

On December 21, 2017, the Medical Board issued an Order of Dismissal that stated that “[a]ll allegations against Mike C. Umerah, M.D., regarding addiction to opioids are dismissed, as no evidence was found to support the allegations” and the Medical “Board found that he successfully completed all requirements and complied with all terms of his Consent Order and the [Medical] Board dismissed any charges against Mike C. Umerah, M.D. and closed the case on Mike C. Umerah, M.D.”  P. Ex. 11.

5. 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)(1), because Petitioner fell out of compliance with enrollment requirements once his Arkansas medical license was suspended.

Physicians who participate in the Medicare program are considered “suppliers.”  42 U.S.C. § 1395x(d).  The regulation at 42 C.F.R. § 424.535(a)(1) authorizes CMS to revoke a currently enrolled supplier’s billing privileges if CMS determines that the supplier no longer meets the enrollment requirements for its supplier type, subject to an opportunity for the supplier to make corrections before revocation.

Among the applicable requirements for a supplier to maintain enrollment is compliance with the applicable federal and state licensure requirements for his supplier type.

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42 C.F.R. § 424.516(a)(2).  Relevant to this case, a “physician” for Medicare program purposes 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).

In order to enroll in Medicare and receive billing privileges, Petitioner needed to be licensed by Arkansas, the state where he practiced as a physician.  Petitioner does not dispute that his medical license in Arkansas was suspended from October 21, 2016 to December 1, 2016.  P. Br. at 6; P. Ex. 4 at 2.  When the Medical Board suspended Petitioner’s medical license, Petitioner no longer met the enrollment requirement of 42 C.F.R. §§ 410.20(b) and 424.516(a)(2).

Petitioner argues that, except for a brief emergency suspension, he has been licensed to practice medicine in Arkansas since 2004.  Further, he explained how his suspension was the result of a Drug Enforcement Administration investigation, but that Petitioner was cleared of allegations of opioid abuse.  P. Br. at 6-7.  However, emergency suspensions of a license are a basis for revocation under 42 C.F.R. § 424.535(a)(1), even if the physician ultimately prevails in the disciplinary proceeding.  Akram A. Ismail, M.D., DAB No. 2429 at 5-8 (2011).  Particularly relevant to this case regarding a temporary suspension:

Even if [the state licensing authority] were to reinstate Dr. Ismail’s authorization to practice medicine at the conclusion of its disciplinary proceedings, Dr. Ismail is, as discussed above, unauthorized to practice medicine legally while the suspension is in effect.  Dr. Ismail’s inability to practice medicine for any length of time due to the disciplinary actions imposed against him triggered his noncompliance with the Medicare enrollment requirements and authorized revocation of his billing privileges.

Id. at 8.

Further, the fact that the CMS contractor imposed the revocation after the Medical Board lifted the emergency suspension did not preclude the contractor from taking that action.  Meindert Niemeyer, M.D., DAB No. 2865 at 7-10 (2018).

Therefore, CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(1).

6. 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)(9).

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The regulations require that a physician report “any adverse legal action” to the Medicare contractor within 30 days.  42 C.F.R. § 424.516(d)(1)(ii).  The phrase “adverse legal action” is not specifically defined in 42 C.F.R. Part 424.  However, “final adverse action” is defined in the regulations to include “[s]uspension or revocation of a license to provide health care by any State licensing authority.”  Id. § 424.502.  Failure to report an adverse legal action is a basis to revoke a physician’s Medicare enrollment and billing privileges.  Id. § 424.535(a)(9).

Petitioner argues that there was no adverse legal action to report to CMS because the suspension preceded a hearing and, once the hearing was held, the Medical Board lifted the suspension.  P. Br. at 7-8.

Petitioner’s argument is not correct.  A temporary suspension of a medical license, even when not final and still being appealed, constitutes an “adverse legal action” under the regulations, even if it does not constitute a “final adverse action.”  Ismail, DAB No. 2429 at 9-11.  Therefore, CMS had a legitimate basis to revoke Petitioner’s enrollment and billing privileges based on his failure to report the Medical Board’s emergency suspension order within 30 days of October 21, 2016.

7. The effective date for revocation is October 21, 2016, and not October 13, 2016.

The initial determination originally established December 5, 2016 as the retroactive effective date for the revocation.  The reconsidered determination changed the effective date to October 13, 2016.  However, the effective date for a retroactive revocation is the date on which the license suspension took effect.  42 C.F.R. § 424.535(g).  In this case, the record shows that the emergency suspension of Petitioner’s license was effective October 21, 2016.  CMS Ex. 9 at 2.  Therefore, that is the effective date of revocation.

8. I do not have jurisdiction to review the length of the re-enrollment bar imposed in this case, but CMS should consider ending the re-enrollment bar as soon as possible and allow Petitioner to apply for re-enrollment immediately.

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. 1 at 2; CMS Ex. 7 at 2.  Neither the initial nor the reconsidered determinations stated why the severity of the bases for revocation warranted the maximum re-enrollment bar.

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Petitioner argues that, considering the allegations that served as the basis for the emergency order were disproven and the failure to report the short suspension is a “technical violation,” a three-year re-enrollment bar is “draconian and an abuse of discretion.”  P. Br. at 10.  Petitioner asks that I reduce the bar or remand this matter to CMS.

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. 2675 at 9 (2016) (“our authority in a revocation case does not extend to reviewing the length of the reenrollment bar imposed by CMS.”).  Because I do not have jurisdiction over this issue, I am skeptical that I have authority to remand it to CMS as a new issue under 42 C.F.R. § 498.56(d).

Given that the emergency suspension was based merely on the fact that an investigation was being conducted and that the December 2017 Order of Dismissal indicated a complete exoneration, which the CMS contractor could not have known about at either the initial or reconsidered determination stages of appeal, I strongly encourage CMS to act as soon as possible to reduce the re-enrollment bar on Petitioner and permit him to seek re-enrollment immediately.  While CMS’s revocation is appropriate under the case interpretations of the regulations, as explained above, Petitioner’s suspension was extremely brief and ought not to have occurred.  His failure to report the license suspension, while a violation of the regulations, would normally only require a one-year re-enrollment bar.  Medicare Program Integrity Manual § 15.27.2(D)(2).  The period of the emergency suspension was covered by the retroactive effective date of the revocation, leaving the entire three-year re-enrollment bar to rest on his failure to report the suspension.  If the contractor had known that Petitioner was going to be fully exonerated, it is unlikely that the contractor would have imposed the maximum bar to re-enrollment.

V. Order

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

2. I modify the effective date of revocation to October 21, 2016.