Kamal G. Bangoria, DAB CR5384 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS) revoked the Medicare enrollment and billing privileges of Kamal G. Bangoria, M.D. (Dr. Bangoria or Petitioner) for certifying on a CMS-855I enrollment application, which he was using to update his address information, that he had not been subject to a final adverse action when his Maryland medical license had previously been suspended, his Maryland Medicaid enrollment had been terminated, and his Medicare enrollment had been revoked.

Dr. Bangoria requested a hearing to dispute the revocation, asserting that he made a simple mistake on the CMS-855I.  Dr. Bangoria pointed out that he was not trying to hide his license suspension because he had attached a document to the CMS-855I showing his disciplinary history with the Maryland Board of Physicians.  Further, CMS had already revoked his Medicare enrollment and billing privileges in the past based on the license suspension and the Medicaid enrollment termination, but had re-enrolled Petitioner as a Medicare supplier following the reinstatement of Dr. Bangoria’s medical license and his enrollment in the Medicaid program.

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I find that Dr. Bangoria had no motivation to lie about the former adverse actions taken against him and accept that he merely made a mistake.  However, I must affirm CMS’s revocation because Dr. Bangoria certified as true false information provided on a CMS-855I, and I have no authority to reverse CMS’s discretionary decision to revoke so long as the facts and law support CMS’s basis for revocation.  Given the circumstances in this case, CMS should re-evaluate the length of the re-enrollment bar imposed on Dr. Bangoria; however, I have no authority to require CMS to do so.

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.  In an August 29, 2017 initial determination, a CMS contractor revoked Petitioner’s Medicare enrollment and billing privileges, effective September 28, 2017, for the following reason:

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

You certified as “true” misleading or false information regarding final adverse legal actions/convictions on[]your CMS 855I Change of Information application signed July 1, 2017.  You marked “no” in section 3, indicating that you had no prior adverse legal history; however, you had a prior Medicare revocation and prior Medicaid termination.

CMS Exhibit (Ex.) 1 at 42 (emphasis in original).  The initial determination stated that the CMS contractor imposed a three-year re-enrollment bar beginning “30 days after the postmark date of this letter.”  CMS Ex. 1 at 43.

Petitioner requested reconsideration and stated that the CMS-855I enrollment application he submitted in July 2017 included an error related to the final adverse action.  CMS Ex. 1 at 7-35.  Petitioner stated that his Maryland medical license was suspended in 2014 due to a “health issue” and that his Medicare and Medicaid enrollment had both been terminated in 2014 as well.  CMS Ex. 1 at 7.  Petitioner also said that his Maryland medical license and Maryland Medicaid enrollment had been reinstated in 2015, and his Medicare re-enrollment occurred in 2016.  CMS Ex. 1 at 7.

On December 4, 2017, a CMS hearing officer issued a reconsidered determination upholding the revocation of Petitioner’s billing privileges.  CMS Ex. 1 at 1-6.  The hearing officer stated:

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Under 42 C.F.R. § 424.535(a)(4), a currently enrolled supplier may have its Medicare billing privileges revoked if the supplier certified as “true” misleading or false information on a Medicare enrollment application.  In his August 27, 2017 CMS-855I enrollment application, Dr. Bangoria affirmatively indicated he had no final adverse legal actions, and then by signing the application, he certified that the information contained in his application was true and complete.  The CMS-855I enrollment application defines, among other definitions, an adverse legal action as “any revocation or suspension of a license to provide health care by any State licensing authority.”  It also defines an adverse legal action as, “any Medicare revocation of any Medicare billing number,” and “any suspension or exclusion from participation in, or any sanction imposed by, a Federal or State health care program.”  Dr. Bangoria’s Maryland medical license was suspended from April 10, 2014 to June 1, 2015.  Dr. Bangoria’s billing privileges had been previously revoked by Medicare on April 10, 2014.  Dr. Bangoria’s Maryland Medicaid billing privileges were also terminated on April 10, 2014.  Dr. Bangoria was required to submit true and complete information in his Medicare enrollment application by disclosing his medical license suspension, and previous revocation/termination from both Medicare and Medicaid programs.  Therefore, Novitas properly revoked Dr. Bangoria’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(4).

CMS Ex. 1 at 3.

Petitioner timely filed a request for a hearing with the Departmental Appeals Board, Civil Remedies Division.  Judge Keith W. Sickendick was assigned to this case and, on January 23, 2018, issued an Acknowledgment and Prehearing Order (Prehearing Order).  In conformance with the Prehearing Order, CMS filed a brief and motion for summary judgment (CMS Br.), along with two exhibits (CMS Exs. 1-2).  CMS did not offer any witness testimony.  Petitioner filed a prehearing brief and response to the motion for summary judgment (P. Br.) along with one proposed exhibit (P. Ex. 1) and a witness list that included two proposed witnesses.  CMS filed a reply brief (CMS Reply).

On November 20, 2018, I was assigned to hear and decide this case.  I ordered Petitioner to provide written direct testimony for each of his proposed witnesses, and CMS to indicate whether CMS wanted an opportunity to cross-examine those witnesses.  See

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Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b).  I also gave the parties the opportunity to submit supplemental briefs and to file evidentiary objections.

Petitioner submitted affidavits from himself (Bangoria Aff.) and Sharon Zimmerman (Zimmerman Aff.).  CMS filed a supplemental brief (CMS Supplemental) in which CMS declined to cross-examine Petitioner’s witnesses.

II. Decision on the Record

Because Petitioner did not object to any of CMS’s proposed exhibits and CMS did not object to Bangoria Aff. or Zimmerman Aff., I admit them all into the record.

CMS objected to P. Ex. 1 because Petitioner did not provide a good cause statement for failing to file that exhibit at the reconsideration stage of the appeals process.  CMS Reply at 5-6.  Petitioner did not respond to that objection.

The initial determination notified Petitioner that he was required to submit evidence to be considered by an administrative law judge (ALJ) with the reconsideration request:

You may submit additional information with the reconsideration that you believe may have a bearing on the decision.  However, if you have additional information that you would like a hearing officer to consider during the reconsideration or, if necessary, an administrative law judge to consider during a hearing, you must submit that information with your request for reconsideration.  This is your only opportunity to submit information during the administrative appeals process; you will not have another opportunity to do so unless an administrative law judge specifically allows you to do so under 42 CFR § 498.56(e).

CMS Ex. 1 at 42.  Petitioner did not submit the documents in P. Ex. 1 with the reconsideration request.

In this proceeding, the Prehearing Order stated:  “I must exclude any new documentary evidence offered by Petitioner, if Petitioner does not make a showing of good cause for failure to previously present such evidence.”  Prehearing Order § II(E).  However, Petitioner did not state a reason why he submitted P. Ex. 1 for the first time at the ALJ level of appeal.  Therefore, I sustain CMS’s objection and exclude P. Ex. 1.  See 42 C.F.R. §§ 405.803(c); 498.56(e).

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I ordered Petitioner to submit written direct testimony from his proposed witnesses, which Petitioner did.  CMS expressly declined to cross-examine those witnesses.  Therefore, I issue this decision based on the written record.  CRDP §§ 16(b), 19(b), (d).

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

1. Petitioner is a physician who was first licensed to practice medicine in Maryland in 2007.  CMS Ex. 1 at 45; Bangoria Aff. at 1 ¶ 3.
2. On April 10, 2014, the Maryland Board of Physicians summarily suspended Petitioner’s medical license.  CMS Ex. 1 at 45; Bangoria Aff. at 1 ¶ 6.
3. Effective April 10, 2014, the Maryland Department of Health and Mental Hygiene terminated Petitioner’s participation in Medicaid.  Bangoria Aff. at 1 ¶ 7; see also  CMS Ex. 1 at 7, 22; CMS Ex. 2 at 1.
4. Effective April 10, 2014, a CMS contractor revoked Petitioner’s Medicare enrollment and billing privileges based on the suspension of his Maryland medical license and on his termination from the Maryland Medicaid program.  CMS Ex. 2 at 1.
5. The CMS contractor barred Petitioner from re-enrollment in the Medicare program for two years.  CMS Ex. 2 at 2.
6. On June 1, 2015, the Maryland Board of Physicians terminated the summary suspension.  CMS Ex. 1 at 46; Bangoria Aff. at 1 ¶ 8.
7. Effective September 1, 2015, Petitioner was re-enrolled in the Maryland Medicaid Program.  CMS Ex. 1 at 36-37; see also Bangoria Aff. at 2 ¶ 9.
8. Effective April 9, 2016, Petitioner was re-enrolled in the Medicare program.  CMS Ex. 1 at 39; Bangoria Aff. at 2 ¶ 11.
9. In July 2017, Petitioner submitted to a CMS contractor a CMS-855I (enrollment application) and CMS-855R (reassignment application).  CMS Ex. 1 at 47-82.
10. The purpose of the CMS-855I was to provide notice of Petitioner’s change of address.  CMS Ex. 1 at 42, 63; see also CMS Br. at 2 n.1; P. Br. at 3.

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11. Section 3 of the CMS-855I asked whether Petitioner ever had a “final adverse legal action” imposed against him.  CMS Ex. 1 at 60.  Section 3 explained that “final adverse actions” included:  any suspension of a license to provide health care by any state licensing authority; suspension from participation in a federal or state health care program; and any Medicare revocation of any Medicare billing number.  CMS Ex. 1 at 59.
12. The CMS-855I shows that Petitioner selected “NO” in response to the question as to whether Petitioner ever had a final adverse action imposed against him.  CMS Ex. 1 at 60.
13.  On July 1, 2017, Petitioner signed the certification statement on the CMS-855I, which states in part:  “I have read the contents of this application, and the information contained herein is true, correct, and complete.”  CMS Ex. 1 at 72-73.
14. Petitioner inadvertently certified that the checked box next to the word “No,” in response to the question as to whether Petitioner had any final adverse actions, was true.  Bangoria Aff. at 2 ¶ 13.
15. Petitioner submitted with the CMS-855I a copy of his Maryland Board of Physician Practice Profile report, which provided information about his 2014 summary suspension and the termination of that summary suspension.  CMS Ex. 1 at 75-77; Bangoria Aff. at 2 ¶ 12; Zimmerman Aff. at 1 ¶ 8.

V. Conclusions of Law and Analysis

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

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, physicians must report to CMS a change in practice location within 30 days.  42 C.F.R. § 424.516(d)(1)(iii).

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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).

This provision is clear and provides no limitation on CMS’s discretion to revoke a supplier who has certified as true misleading or false information on an enrollment application to maintain enrollment in the Medicare program.  Further, CMS is completely free to exercise that discretion without review from an ALJ.  As the Departmental Appeals Board has explained it:

The ALJ’s review of CMS’s revocation . . . is thus limited to whether CMS had established a legal basis for its actions. . . .  In other words, the right to review of CMS’s determination by an ALJ serves to determine whether CMS had the authority to revoke . . . Medicare billing privileges, not to substitute the ALJ’s discretion about whether to revoke.  Once the ALJ found that both elements required for revocation were present . . . , the ALJ was obliged to uphold the revocation . . . .

Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (citations omitted).

1. Petitioner certified that a false response he gave to a question on the CMS-855I was true.

In the present matter, Petitioner indicated “NO” in response to a question on a CMS-855I as to whether he had been subject to a final adverse action.  CMS Ex. 1 at 60, 72-73.  Under the regulations, final adverse actions include one or more of the following:  a Medicare-imposed revocation of Medicare billing privileges; suspension or revocation of a license to provide health care by any state licensing authority; and exclusion or debarment from participation in a federal or state health care program.  42 C.F.R. § 424.502.  Petitioner had adverse actions imposed on him that meet all three of these criteria prior to the time that Petitioner signed the CMS-855I on July 1, 2017.  CMS Ex. 1 at 75-76; CMS Ex. 2; Bangoria Aff. at 1 ¶¶ 6-7.

Petitioner testified that his certification of this incorrect answer was inadvertent.  Bangoria Aff. at 2 ¶ 13.  He also testified that his Maryland medical license suspension

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was noted on the Maryland Board of Physicians Practice Profile System report that he attached to the CMS-855I.  Bangoria Aff. at 2 ¶ 14.  Petitioner further noted that he had previously disclosed all of his adverse actions to CMS.  Bangoria Aff. at 2 ¶ 15.  Essentially, Petitioner argues that he did not intend to mislead CMS as to his final adverse actions and his submission of the Maryland report showing his suspension proves his lack of intent.  P. Br. at 10-11.

I conclude that Petitioner did not intend to certify falsely that he had no final adverse actions.  Petitioner testified under oath as to his lack of intent, and CMS did not cross-examine him.  Further, not only is his testimony consistent with the fact that he attached a document that clearly indicated his medical license had been suspended, he had no reason to make such a false statement.  CMS had already revoked him for his medical license suspension and his termination from Maryland Medicaid.  CMS also had re-enrolled him in the Medicare program after Petitioner had both his license and his enrollment in the Maryland Medicaid program restored.  Simply put, Petitioner had no incentive to falsify his history of final adverse actions.

However, Petitioner’s lack of intent to provide false information to CMS is not relevant because the Departmental Appeals Board (DAB) has interpreted 42 C.F.R. § 424.535(a)(4) to have no intent requirement.  Mark Koch, D.O., DAB No. 2610 at 4-5 (2014); but see 71 Fed. Reg. 20,754, 20,761, 20,769 (Apr. 21, 2006) (informing the public in the preambles to the proposed and final rules that revocations under § 424.535(a)(4) would require “deliberately submitted false or misleading information in order to enroll or maintain enrollment in the Medicare program.”).

Petitioner also asserts that because the CMS-855I was accompanied by a document disclosing his Maryland medical license suspension, the CMS contractor’s correct response should have been to develop the matter further rather than revoke Petitioner’s Medicare enrollment and billing privileges.  P. Br. at 9-10.  As indicated above, CMS has discretion to revoke a supplier’s enrollment and billing privileges, and I am without authority to say that the CMS contractor ought to have given Petitioner a chance to correct his mistaken certification.  However, the reason Petitioner was revoked appears to have been his certification that an answer he gave in the application was true, when it was not, rather than CMS’s need to actually determine if Petitioner had in fact been subject to final adverse actions.  CMS was already aware of Petitioner’s history.  Therefore, the offense that the CMS contractor must have been most concerned about was Petitioner’s failure to properly review and make certain of his answers prior to the filing of his CMS-855I.

A recent decision from the DAB is instructive.  In that case, a physician had been convicted of a crime and was excluded by the Inspector General of the United States Department of Health and Human Services (IG) from participation in the Medicare program and all other federal health care programs for five years.  After the IG reinstated

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the physician, the physician submitted a CMS-855I seeking enrollment in the Medicare program.  The physician indicated in section 3 of the CMS-855I that he had been subject to a final adverse action and listed the exclusion but not the conviction.  The physician also submitted a copy of his reinstatement letter from the IG.  The DAB upheld the revocation stating:

[A]lthough Petitioners assert that their submission of the IG’s reinstatement letter with their enrollment application should be treated as reporting Dr. Morgan’s felony conviction, they admit that the letter “does not detail the underlying conviction which led to Dr. Morgan’s exclusion from the program.”  Nonetheless, Petitioners argue, CMS should have treated this letter as disclosing Dr. Morgan’s felony conviction because the letter referred to an IG case file number.  Once again, Petitioners ignore the plain language of the enrollment application, which requires specific, direct disclosure of all final adverse actions, not disclosure of some actions or indirect references that, if followed, might result in CMS’s becoming aware of final adverse actions not mentioned.  As the ALJ found, “[w]hether or not CMS had records and was aware of Dr. Morgan’s felony conviction in 2007 is not the issue.  Petitioners had an affirmative duty under the regulations, of which they were advised by the CMS-855I, to submit a true, complete, and accurate application.  Petitioners violated that affirmative duty.”

Breton L. Morgan, M.D., Inc. & Breton L. Morgan, M.D., DAB No. 2933 at 3-4, 12-13 (2019) (citations omitted).

2. Petitioner submitted the CMS-855I for the purpose of maintaining his Medicare enrollment.

Petitioner indicated on the CMS-855I that he was submitting the form to the CMS contractor because he was a new enrollee.  CMS Ex. 1 at 50.  Even in an amended CMS-855I that Petitioner submitted with his reconsideration request, he indicated the reason for the application was that he is a new enrollee.  CMS Ex. 1 at 11.  This was clearly not the reason because Petitioner had already successfully re-enrolled in 2016.  CMS Ex. 1 at 39.  A cover letter accompanying the original CMS-855I submitted in July 2017 indicates that Petitioner submitted the CMS-855I with an application for the reassignment of Medicare benefits (CMS-855R) because Petitioner was a hospitalist at Atlantic General Hospital.  CMS Ex. 1 at 81.  Neither of Petitioner’s witnesses’ testimony explains why Petitioner submitted the CMS-855I.

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The CMS contractor believed that the purpose of the CMS-855I was a change of information.  CMS Ex. 1 at 42.  Petitioner does not dispute this.  P. Br. at 3; see also CMS Br. at 2 n.1.  Further, the CMS-855I in question shows that Petitioner was adding a new practice location to his Medicare enrollment record.  CMS Ex. 1 at 63.

Because Petitioner submitted the CMS-855I to update information as to his practice location, I conclude that he submitted that CMS-855I to maintain his enrollment in the Medicare program.  42 C.F.R. § 424.516(d)(1)(iii).

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, on a CMS-855I submitted to update his practice location, certified as true his “NO” answer to the question that asked whether Petitioner had been subject to any final adverse actions, when Petitioner had been subject to three final adverse actions.

Based on the foregoing analysis, I conclude that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(4).

VI. Conclusion

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