Jaipal S. Sidhu, M.D., DAB CR5398 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative contractor, revoked the Medicare enrollment and billing privileges of Jaipal S. Sidhu, M.D. (Dr. Sidhu or Petitioner) for noncompliance with enrollment requirements because his license was suspended by the Medical Board of California (Medical Board). 42 C.F.R. § 424.535(a)(1). Dr. Sidhu requested a hearing to dispute the revocation, arguing that his medical license in California was never suspended. Based on the record, I conclude that Dr. Sidhu was not in compliance with enrollment requirements because, while his medical license was not technically suspended, the Medical Board ordered Petitioner not to practice medicine until the Medical Board notified Dr. Sidhu that he was fit to practice medicine safely again. Thus, he failed to continuously meet the Medicare requirement for physicians to be legally authorized to practice medicine by the state in which he provides health care services. Therefore, I affirm the revocation of Dr. Sidhu's Medicare enrollment and billing privileges.

I. Case Background and Procedural History

Dr. Sidhu is a physician who was enrolled to provide health care services to Medicare beneficiaries and receive reimbursement from the Medicare program. Dr. Sidhu

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completed medical school in 1992, after which he completed various internships and residencies. Petitioner Exhibit (P. Ex.) A at 1-2 ¶ 3. In 2000, the Medical Board licensed Dr. Sidhu to practice medicine in California. CMS Ex. 1 at 3. In 2004, Petitioner was certified in physical medicine and rehabilitation by the American Board of Physical Medicine and Rehabilitation. P. Ex. A at 1-2 ¶ 3. Dr. Sidhu practiced in California in his chosen field of medicine at hospitals and later on his own. P. Ex. A at 2-3 ¶¶ 4-8.

In a January 24, 2018 initial determination, a CMS administrative contractor revoked Petitioner's Medicare enrollment and billing privileges, effective January 17, 2018, for the following reason:

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

On January 17, 2018, [Petitioner's] California medical license was suspended by the Medical Board of California.

CMS Ex. 3 at 1. The CMS contractor also imposed a one-year re-enrollment bar beginning "30 days after the postmark date of this letter." CMS Ex. 3 at 2.

Petitioner requested reconsideration in a timely manner. CMS Ex. 4. Petitioner asserted, in response to the basis for revocation provided in the initial determination, that "while I am currently on terms of probation as a result of an action by the Medical Board of California, there is no suspension in effect as a result of the decision to stay any such suspension." CMS Ex. 4 at 3. Petitioner stated that the Medical Board issued a decision adopting a stipulated settlement and disciplinary order, but that the decision expressly provided terms for probation and stayed the revocation of Petitioner's medical license. CMS Ex. 4 at 3-4. Petitioner submitted a copy of the decision as well as a pleading entitled First Amended Accusation. CMS Ex. 4 at 8-41. A few weeks later, Petitioner submitted a document from the Medical Board indicating that he completed four conditions that permitted him to resume the practice of medicine. CMS Ex. 5 at 3.

On March 27, 2018, the CMS contractor issued a reconsidered determination upholding the revocation of Petitioner's billing privileges. CMS Ex. 6. The reconsidered determination stated that Petitioner's medical license was suspended effective January 17, 2018, pending a clinical and diagnostic evaluation of Petitioner. Therefore, "[d]ue to the lapse[d] time between the initial suspension of the license and the completion of the provider's [probation] terms, we have found the revocation of the enrollment was completed correctly." CMS Ex. 6 at 1.

Petitioner timely filed a request for a hearing in which he disputed the reconsidered determination's finding that Petitioner's medical license had been suspended. Judge Leslie A. Weyn was assigned to this case and, on April 13, 2018, issued an

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Acknowledgment and Pre-hearing Order (Pre-hearing Order).  In conformance with the Pre-hearing Order, CMS filed a brief and motion for summary judgment (CMS Br.), along with seven proposed exhibits (CMS Exs. 1-7). Petitioner filed a pre-hearing brief and opposition to summary judgment (P. Br.) along with 8 proposed exhibits (P. Exs. A‑H). Petitioner submitted his own written direct testimony. P. Ex. A. CMS later filed written objections to Petitioner's proposed exhibits.

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

II. Decision on the Record

Petitioner did not object to any of CMS's proposed exhibits; therefore, I admit all of them into the record. Pre-hearing Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 14(e).

CMS objected to P. Exs. B, C, D, F, G, and H because Petitioner neither submitted these proposed exhibits with his reconsideration request nor provided good cause for submitting these exhibits for the first time at the administrative law judge (ALJ) level of appeal. Petitioner did not respond to this objection.

The initial determination notified Petitioner that he needed to submit at the reconsideration level of appeal all the evidence that he wanted considered in his case, both on reconsideration and at the ALJ level of appeal. The initial determination indicated that, at the ALJ level, new evidence could only be considered under 42 C.F.R. § 498.56(e). CMS Ex. 3 at 1-2.

The Pre-hearing Order further notified Petitioner that, if he submitted new evidence, he must include a statement of good cause as to why he did not submit it at an earlier stage in the appeal process. It also stated that the ALJ must exclude any new evidence under 42 C.F.R. § 498.56(e) where there has been no showing of good cause. Pre-hearing Order ¶ 6.

Petitioner did not provide a good cause statement for the late submission of evidence in this case, and I can discern no good cause on my own. The initial determination indicated the basis for revocation, and Petitioner, in his reconsideration request, identified the argument that he has consistently made in response. Therefore, he should have submitted all of those documents earlier. Without good cause, I exclude P. Exs. B, C, D, F, G, and H. 42 C.F.R. § 405.803(e). I admit P. Exs. A and E, without objection.

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 ¶¶ 8-10; CRDP §§ 16(b); 19(b), (d); see Vandalia Park, DAB No. 1940 (2004); Pac.

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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). CMS did not offer any written direct testimony. Petitioner offered his own testimony; however, CMS only requested to cross-examine him if I did not render either summary judgment or a decision on the record in CMS's favor. Because this decision affirms CMS's revocation, I find no reason to conduct a hearing for CMS to cross-examine Petitioner. Therefore, I decide this case based on the written record.

III. Issue

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

IV. Jurisdiction

I have jurisdiction to hear and decide this case. 42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 424.545(a), 498.1(g), 498.3(b)(17), 498.5(l)(2).

V. 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, 424.516. CMS may revoke the Medicare billing privileges of suppliers who do not continue to comply with all enrollment requirements. 42 C.F.R. § 424.535(a)(1). Suppliers have the burden of showing compliance with enrollment requirements. 42 C.F.R. § 424.545(c).

1. Effective January 17, 2018, the Medical Board of California ordered Petitioner not to engage in the practice of medicine until notified by the Medical Board that he was fit to practice medicine again.

In February 2017, the Medical Board sought to impose an interim suspension of Petitioner's medical license pending disciplinary proceedings. Following hearings on the issue, Petitioner's license was not suspended, although certain conditions were placed on Petitioner. In April 2017, the Medical Board filed its accusations against Petitioner and in July 2017, the Medical Board filed amended accusations. Although the Medical Board sought a suspension of Petitioner's medical license, following a mandatory settlement conference, the Medical Board agreed to stay discipline pending compliance with terms of probation. P. Ex. A at 3-4 ¶¶ 9-13; P. Ex. E at 3-14; CMS Ex. 4 at 29-40.

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In September 2017, Petitioner signed a document entitled Stipulated Settlement and Disciplinary Order in which he waived his right to a hearing and admitted the truth of the accusations made against him. CMS Ex. 1. Petitioner agreed to revocation of his medical license, but that the revocation would be stayed while Petitioner served seven years of probation. CMS Ex. 1 at 5. While on probation, Petitioner would have to comply with many conditions. CMS Ex. 1 at 5-17. Pertinent to this case, Petitioner agreed that he "shall not engage in the practice of medicine until notified by the [Medical] Board or its designee that he or she is fit to practice medicine safely." CMS Ex. 1 at 8. The Medical Board issued a decision in which it adopted the Stipulated Settlement and Disciplinary Order as its decision and stated that the decision would be effective January 17, 2018. CMS Ex. 1 at 1.

2. Effective February 20, 2018, Medical Board of California permitted Petitioner to resume the practice of medicine.

On February 20, 2018, the Medical Board found that Petitioner had complied with certain conditions. The Medical Board permitted Petitioner to resume the practice of medicine on that date. CMS Ex. 5 at 3; see also P. Ex. A at 4 ¶ 16.

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)(1), because Petitioner fell out of compliance with enrollment requirements once he was no longer authorized to practice medicine in California.

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. 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).

Petitioner testified that his license was never "actually suspended by the Medical Board." P. Ex. A at 4 ¶ 17. While I agree that technically the Medical Board never called its action a suspension, the Medical Board did prohibit him from practice for an indefinite period of time until the Medical Board could be certain that Petitioner was fit to practice medicine. CMS Ex. 1 at 8. The Medical Board described for the public its action as

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follows: "EFFECTIVE 01/17/18 CANNOT PRACTICE MEDICINE UNTIL COMPLETION OF AN EVALUATION." CMS Ex. 7 at 1. Only after Petitioner completed certain conditions did the Medical Board state, on February 20, 2018, that he "may resume practice" again. CMS Ex. 5 at 3.

Petitioner's consistent argument against revocation is that his medical license was not suspended. It is understandable that Petitioner believed this to be the issue given that the CMS contractor found, in both the initial and reconsidered determinations, that Petitioner's medical license was suspended. Petitioner is correct that the Medical Board never described its actions as a license suspension.

For purposes of a physician's enrollment requirements, the issue is not whether Petitioner's license was formally suspended, but rather whether Petitioner was "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). There is no doubt that from January 17, 2018 to February 20, 2018, Petitioner was not legally authorized to practice medicine in the state where he provides health care services. Therefore, CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges. Akram A. Ismail, M.D., DAB No. 2429 at 8 (2011) ("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.").

V. Conclusion

I affirm CMS's revocation of Petitioner's Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(1).