William Garner, MD, DAB CR5447 (2019)

DECISION

The Medicare enrollment and billing privileges of Petitioner, are revoked pursuant to 42 C.F.R. § 424.535(a)(4).1 The effective date of revocation is January 5, 2018, 30 days after the December 6, 2017 notice of the initial determination. Petitioner is barred from reenrollment for three years. 

I. Procedural History and Jurisdiction

On December 5 and 6, 2017, Novitas Solutions, a Medicare administrative contractor (MAC), notified Petitioner that his Medicare enrollment and billing privileges were revoked effective January 4 and 5, 2018, and that he was barred from reenrolling for three years. The MAC cited 42 C.F.R. § 424.535(a)(4) as authority for the revocation. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 10-13.

Petitioner requested reconsideration by letter dated January 31, 2018. CMS Ex. 1 at 6-8. On May 2, 2018, a CMS hearing officer issued a reconsidered determination upholding revocation pursuant to 42 C.F.R. § 424.535(a)(4). CMS Ex. 1 at 1-5.

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Petitioner filed a request for hearing before an administrative law judge (ALJ) on June 27, 2018. The case was docketed and assigned to me. On July 16, 2018, an Acknowledgment and Prehearing Order (Prehearing Order) was issued.

CMS filed a motion for summary judgment on August 15, 2018 (CMS Br.) with CMS Exs. 1 and 2. On September 13, 2018, Petitioner filed a response in opposition to the CMS motion and cross-motion for summary judgment (P. Br.), and Petitioner’s exhibits (P. Exs.) 1 and 2. CMS filed a reply brief on September 28, 2018 (CMS Reply). Petitioner filed a sur-reply on October 5, 2018 (P. Reply).

Petitioner did not object to my consideration of CMS Exs. 1 and 2 and they are admitted as evidence. CMS did object to my consideration of P. Exs. 1 and 2 on grounds that the exhibits are new evidence for which good cause has not been shown for submission at this level for the first time. CMS Reply at 8-10. Pursuant to 42 C.F.R. § 498.60(b)(1), I am to receive in evidence any documents that are relevant and material. Federal Rule of Evidence 401 describes relevant evidence as evidence that has any tendency to a make a fact of consequence to determining the action more or less probable. The narrow issue before me is whether CMS has a basis to revoke Petitioner’s Medicare enrollment and billing privileges. Dinesh Patel, M.D., DAB No. 2551 at 10 (2013); Fady Fayad, M.D., DAB No. 2266, at 16 (2009), aff'd, Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 16-17, 19 (2009), aff'd, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010). The only determination of CMS or the MAC that is subject to my review in a provider and supplier enrollment case is the reconsidered determination. 42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014). The reconsidered determination of the CMS hearing officer is dated May 2, 2018. CMS Ex. 1-5. The CMS hearing officer upheld revocation pursuant to 42 C.F.R. § 424.535(a)(4) because the hearing officer found that Petitioner gave and certified as true, misleading information in his revalidation enrollment application (CMS-855I) that he signed on October 27, 2016. More specifically, the hearing officer found that Petitioner failed to state on the face of the application adverse actions by California and Texas related to his medical license. CMS Ex. 1 at 3. Evidence is relevant if it helps determine whether there is a basis for revocation under 42 C.F.R. § 424.535(a)(4) on the grounds cited by the CMS hearing officer. 

P. Ex. 1 is a previous Medicare enrollment application (CMS-855I) signed by Petitioner on July 22, 2014. P. Ex. 1 at 28. Petitioner listed as final adverse actions in the July 2014 application the stay of the revocation of his Texas medical license and seven years of probation imposed by the Texas Medical Board in August 2013. P. Ex. 1 at 13. Petitioner also attached to his 2014 application a copy of the Agreed Order entered by the Texas Medical Board that reflects action by the Washington and California licensing authorities, including probation in Washington and revocation in California. P. Ex. 1 at 30-34. P. Ex. 2 includes letters from the MAC dated October 6, 2014, advising Petitioner

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that his reassignment of benefits and change of information applications were approved, effective July 7, 2014 and July 22, 2014, respectively. P. Ex. 2. The notice advising Petitioner’s change of information application was approved reflects that the change of information included information related to adverse legal actions, among other things. P. Ex. 2 at 5. Petitioner argues that the adverse information reported on the revalidation application Petitioner signed October 27, 2016, was identical to the adverse action entered on the application he signed on July 22, 2014. P. Br. at 1-2; P. Ex. 1 at 13, 28; CMS Ex. 1 at 44, 58. The reconsidered determination states that the hearing officer believed that Petitioner had not previously disclosed either the California or Texas adverse actions in a prior application. CMS Ex. 1 at 3. Petitioner offers P. Exs. 1 and 2 to show that the reconsidered determination is in error because Petitioner had, in fact, previously disclosed all the adverse information in his 2014 application. P. Br. at 1-2, 4‑5; P. Reply. Petitioner also argues that he is entitled to summary judgment because there is no dispute that he provided the MAC and CMS all information regarding his history of adverse actions, both with his 2014 application and again in December 2016 in response to the MAC’s request for more information related to the application he signed on October 27, 2016. P. Br. at 7-8. Petitioner argues that there is good cause to admit P. Exs. 1 and 2 at this stage due to the erroneous statement in the reconsidered determination and the CMS arguments before me. P. Reply. 

Pursuant to 42 C.F.R. § 498.56(e), I must determine whether good cause exists to admit new documentary evidence not considered on reconsideration. CMS Ex. 1 at 1-2. If I conclude good cause does not exist, I “must exclude” the evidence. 42 C.F.R. § 498.56(e)(2)(ii). The parties correctly state that the regulations do not provide a definition of the term “good cause.” CMS erroneously suggests that the Departmental Appeals Board (Board) has determined that good cause should only be found when the cause is beyond the control of the party seeking relief or seeking consideration of evidence not previously offered in a provider or supplier enrollment case. 

I conclude that P. Exs. 1 and 2 are relevant to address both the error in the reconsidered determination and the CMS arguments regarding the basis for revocation. CMS does not question the authenticity of the documents. Further, copies of P. Exs. 1 and 2 should be in CMS records related to Petitioner, and CMS offers no explanation for why the documents were not offered as part of the record considered by the CMS hearing officer who was obviously unaware of Petitioner’s prior application and disclosure of final adverse action information in 2014. The regulations do not define the term “good cause” and the Board has never provided a precise or complete definition of “good cause” as used in 42 C.F.R. pt. 498. West Side House LTC Facility, DAB No. 2791 at 6 (2017) (citing Rutland Nursing Home, DAB No. 2582 at 5 (2014)). Board decisions turn on evaluation of the facts and determination on a case-by-case basis whether the facts fit within any reasonable definition of good cause. See e.g., West Side, DAB No. 2791; Rutland, DAB No. 2582; Nursing Inn of Menlo Park, DAB No. 1812 (2002); Cary Health & Rehab. Ctr., DAB No. 1771 at 27 (2001). I conclude there is good cause to

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make P. Exs. 1 and 2 part of the record in this case as CMS has failed to do so. Petitioner could not have anticipated the need to submit P. Exs. 1 and 2 when he submitted his reconsideration request because it was reasonable to believe that the hearing officer would consider Petitioner’s entire record. Accordingly, P. Exs. 1 and 2 are admitted. 

II. Discussion

A. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B. Administration of the Part B program is through the MACs. Act § 1842(a) (42 U.S.C. § 1395u(a)). Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.2 Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). Petitioner, a physician, is a supplier. Act § 1861(r); 42 C.F.R. §§ 410.3(a)(1), 410.10(a), 410.20(b).

The Act requires that the Secretary of Health and Human Services (Secretary) issue regulations to establish a process for enrolling providers and suppliers in Medicare, including the requirement to provide the right to a hearing and judicial review of certain enrollment determinations, such as revocation of enrollment and billing privileges. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505, suppliers such as Petitioner must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS. 42 C.F.R. § 424.535. CMS or its Medicare contractor may revoke an enrolled supplier’s Medicare enrollment and billing privileges and supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535. Pursuant to 42 C.F.R. § 424.535(a)(4), CMS

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may revoke a supplier’s enrollment and billing privileges if CMS determines the “supplier certified as ‘true’ misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.” Generally, when CMS revokes a supplier’s Medicare billing privileges for not complying with enrollment requirements, the revocation is effective 30 days after CMS or its contractor mails notice of its determination to the supplier. 42 C.F.R. § 424.535(g). After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from reenrolling in the Medicare program for one to three years. 42 C.F.R. § 424.535(c).

A supplier whose enrollment and billing privileges have been revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498. A supplier submits a written request for reconsideration to CMS or its contractor. 42 C.F.R. § 498.22(a). CMS or its contractor must give notice of its reconsidered determination to the supplier, giving the reasons for its determination and specifying the conditions or requirements the supplier failed to meet, and advising the supplier of its right to an ALJ hearing. 42 C.F.R. § 498.25. If the decision on reconsideration is unfavorable to the supplier, the supplier has the right to request a hearing by an ALJ and further review by the Board. Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), 498.5(l)(2). CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied. 42 C.F.R. § 498.5(l)(2). A hearing on the record, also known as an oral hearing, is required under the Act. Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004). The supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records. 42 C.F.R. § 424.545(c).

B. Issues

Whether summary judgment is appropriate; and

Whether there was a basis for the revocation of Petitioner’s billing privileges and Medicare enrollment.

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

My conclusions of law are set forth in bold followed by the pertinent findings of fact and analysis. 

1. Summary judgment is appropriate.

Each party requests summary judgment. A provider or supplier denied enrollment in Medicare or whose enrollment has been revoked has a right to a hearing and judicial review pursuant to section 1866(h)(1) and (j) of the Act and 42 C.F.R. §§ 498.3(b)(1), (5), (6), (8), (15), (17); 498.5. A hearing on the record, also known as an oral hearing, is required under the Act. Act §§ 205(b), 1866 (h)(1), (j)(8); Crestview, 373 F.3d at 748-51.

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A party may waive appearance at an oral hearing, but must do so affirmatively in writing. 42 C.F.R. § 498.66. Petitioner has not filed a written waiver of the right to appear and present evidence. Because Petitioner has not waived the right to oral hearing, disposition on the written record alone is not permissible unless summary judgment is appropriate.

Summary judgment is not automatic upon request, but is limited to certain specific conditions. The Secretary’s regulations at 42 C.F.R. pt. 498 that establish the procedure to be followed in adjudicating Petitioner’s case do not establish a summary judgment procedure or recognize such a procedure. However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. See, e.g., Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997). The Board also has recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. Pro. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order, para. II.D and G. 

Summary judgment is appropriate when there is no genuine dispute as to any material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor. The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven. Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 4 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 4 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differ from that used in resolving a case after a hearing. On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record. Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true. Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009). The Board also has recognized that on summary

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judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden. Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010). The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden. However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498. Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 Fed. App’x 181 (6th Cir. 2005).

There is no genuine dispute as to any material fact in this case. Petitioner does not deny that he has a history of final adverse legal actions. There is also no dispute as to the entries regarding final adverse legal action made on the revalidation application Petitioner signed on October 27, 2016. P. Br. at 2. The issues in this case that require resolution are issues of law related to the interpretation and application of the regulations that govern enrollment and billing privileges in the Medicare program and application of the law to the undisputed facts of this case. Summary judgment is appropriate as to both the basis for revocation and the effective date of revocation.

2. Certifying as true information on an enrollment application or application to maintain enrollment that is misleading or false, is a basis for revocation of Medicare enrollment and billing privileges. 42 C.F.R. § 424.535(a)(4). 

3. There is a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) because Petitioner failed to specifically list a final adverse legal action, i.e., the revocation of his California medical license, on the revalidation of enrollment application (CMS Form 855I) he signed on October 27, 2016, certifying that the information in the application was true, correct, and complete. 

4. Revocation of the Medicare enrollment and billing privileges of Petitioner is effective January 5, 2018, 30 days from the date of the December 6, 2017 notice of initial determination to revoke. 42 C.F.R. § 424.535(g).

a. Facts

The following facts are not disputed or are accepted a true as asserted by Petitioner for purposes of summary judgment.  

Petitioner was licensed to practice medicine in Texas, California, and Washington.

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On about March 21, 2011, the Washington Medical Board placed Petitioner’s medical license on probation for three years because he self-prescribed Ambien. Effective January 6, 2012, the California Medical Board revoked Petitioner’s California medical license based on the Washington probation and the fact that Petitioner failed to respond to the California complaint. P. Ex. 1 at 31; CMS Ex. 1 at 14-15.

Petitioner entered the Texas Physician Health Program (PHP) due to the Washington incident. However, he relapsed and the Texas Medical Board temporarily suspended his Texas license to practice medicine. P. Ex. 1 at 31-32. On August 26, 2013, the Texas Board revoked Petitioner’s Texas license, but stayed the revocation and placed Petitioner on probation for seven years. P. Ex. 1 at 34, 43-44.

Petitioner signed a CMS-855I enrollment application on July 22, 2014. P. Ex. 1 at 28. In Section 3 of the CMS-855I titled “Final Adverse Legal Actions/Convictions,” Petitioner checked the box next to “yes” under question 1, and under question 2, entered: “Stay of Texas Medical license revocation” under Final Adverse Legal Action; “08/30/2013” under date; “Texas Medical Board” under Taken By; and “Placed on probation 7 years. In good standing with probation requirements” under Resolution. P. Ex. 1 at 13. Petitioner represents that he submitted with the CMS-855I a copy of the Texas Medical Board Agreed Order, disclosing more facts related to the adverse legal action. P. Ex. 1 at 30-44; P. Br. at 1-2.

Petitioner signed a CMS-855I enrollment application on October 27, 2016. CMS Ex. 1 at 58. In Section 3 of the CMS-855I titled “Final Adverse Legal Actions/Convictions,” Petitioner checked the box next to “yes” under question 1, and under question 2, entered: “Stay of Texas Medical license revocation” under Final Adverse Legal Action; “08/30/2013” under date; “Texas Medical Board” under Taken By; and “Placed on probation 7 years. In good standing with probation requirements.” under Resolution. CMS Ex. 1 at 44. The information entered in Section 3 of the CMS-855I Petitioner signed on October 27, 2016, is the same as the information entered in Section 3 of the CMS-855I Petitioner signed on July 22, 2014. Petitioner does not dispute that he did not file a copy of the Texas Medical Board Agreed Order when he filed the CMS-855I he signed October 27, 2016. However, on December 2, 2016, Petitioner provided a copy of the Texas Medical Board Agreed Order when the MAC sent him a development request. P. Br. at 2; CMS Ex. 1 at 16-30; 60-63.

b. Analysis

CMS and the MAC are authorized to revoke Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) when the “provider or supplier certified as ‘true’ misleading or false information on the enrollment application.” Pursuant to the 2013

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revision of 42 C.F.R. § 424.502 in effect on July 22, 2014, when Petitioner signed the enrollment application: 

Final adverse action means one or more of the following actions:

(1) A Medicare-imposed revocation of any Medicare billing privileges;

(2) Suspension or revocation of a license to provide health care by any State licensing authority;

(3) Revocation or suspension by an accreditation organization;

(4) A conviction of a Federal or State felony offense (as defined in § 424.535(a)(3)(i)) within the last 10 years preceding enrollment, revalidation, or re-enrollment; or

(5) An exclusion or debarment from participation in a Federal or State health care program.

(Emphasis in original). The second definition of a final adverse action is satisfied when a state licensing authority suspends or revokes a state-issued license to provide health care. The definition imposes no time limit related to when the suspension or revocation occurred. The instructions for Section 3 of the CMS-855I Petitioner signed on October 27, 2016, required reporting of any revocation or suspension of a license to provide health care by a state licensing authority. CMS Ex. 1 at 43. The instructions did not provide for any time limit on reporting a revocation or suspension or make any exception to the reporting requirement based on a prior reporting in an earlier application to enroll or revalidate enrollment. 

Petitioner does not dispute that his license to provide health care was revoked by the California Medical Board effective January 6, 2012. P. Ex. 1 at 31; P. Br. at 2; CMS Ex. 1 at 14-15. Petitioner also does not dispute that he did not list the revocation by the California Medical Board on the CMS-855I he signed on October 27, 2016, and, in fact, he did not submit the Texas Medical Board’s Agreed Order that disclosed the California license revocation until December 2, 2016, after the MAC requested more information. CMS Ex. 1 at 16, 44; P. Br. at 2. 

The regulations in effect when Petitioner signed the CMS-855I on October 27, 2016, required that an application submitted must be complete, accurate, and truthful in response to all information requested within each section of the application (CMS 855).

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42 C.F.R. § 424.510(d)(2)(i) (2016). By signing the CMS-855I on October 27, 2016, Petitioner certified that all information contained in the application was true, correct, and complete and indicated he understood the penalties for falsifying any information, including any deliberate omission, misrepresentation, or falsification of information in the application. CMS Ex. 1 at 57-58.

Petitioner’s license to practice medicine by the Texas Medical Board was revoked but the revocation was stayed.3 CMS Ex. 1 at 20. The Texas Medical Board did not suspend or revoke Petitioner’s medical license during the seven-year period of probation imposed but placed limits on his ability to practice medicine. CMS Ex. 1 at 20, 25-26. The stayed revocation and probation do not meet the definition of a final adverse action under 42 C.F.R. § 424.502, and arguably did not have to be reported as such in Section 3 of the CMS-855I.4 The CMS hearing officer correctly identified that the revocation of Petitioner’s California medical license was a final adverse action within the meaning of 42 C.F.R. § 424.502. The hearing officer also correctly concluded that failure to report the information about the California medical license revocation was a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4). CMS Ex. 1 at 4.

Petitioner failed to list the revocation of his California medical license, and, as a result, the application Petitioner certified by his signature on October 27, 2016, was not true, correct, and complete, but rather was false and misleading because it did not list all adverse actions required to be listed. See e.g., Sandra E. Johnson, CRNA, DAB No. 2708 at 7 (2016) (no intent to provide false information required, proof that fact occurred is

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sufficient); Mark Koch, D.O., DAB No. 2610 at 4 (2014) (unintentional or inadvertent omission is not a defense). I conclude that Petitioner’s failure to report the revocation of his California medical license in Section 3 of the CMS-855I that he signed and certified as true on October 27, 2016, constituted failure to report a final adverse action within the meaning of 42 C.F.R. § 424.502. Accordingly, I conclude that there was a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4). Having found that there is a basis for revocation, I have no authority to review the exercise of discretion by CMS to revoke Petitioner’s Medicare enrollment and billing privileges. Dinesh Patel, M.D., DAB No. 2551 at 10-11 (2013); Fayad, DAB No. 2266 at 16; Ahmed, DAB No. 2261 at 16-17, 19. Petitioner argues that there is no basis for revocation pursuant to 42 C.F.R. § 424.535(a)(4) because he disclosed his history of final adverse actions in his 2014 application and when he was asked by the MAC in connection with his 2016 revalidation application. P. Br. at 4-8. The fact that Petitioner’s 2014 application included information regarding the California revocation in the Texas Medical Board Agreed Order filed with the 2014 application is no defense. The regulations and the instruction for Section 3 of the CMS-855I do not establish any exception for reporting a final adverse action based on prior disclosure or on how much time has elapsed from the date of the final adverse action. Rather, Section 3 of the application requires that final adverse actions be reported in each application filed. Petitioner’s argument that he provided information regarding the California license revocation when asked by the MAC when the 2016 application was being processed is also no defense. Petitioner is required to provide complete and truthful information on the application. Petitioner signed, and thereby certified, that the 2016 application was true and complete, but that was false. Petitioner’s failure to report the revocation of his California medical license in Section 3 of the CMS-855I that he signed and certified as true on October 27, 2016, constituted failure to report a final adverse action within the meaning of 42 C.F.R. § 424.502. The regulation does not allow a provider or supplier to withhold information regarding a final adverse action and only disclose it when CMS or the MAC inquires. Furthermore, whether or not CMS had records and was aware of the revocation of Petitioner’s California medical license based on the 2014 application is no defense. Petitioner had an affirmative duty under the regulations, of which Petitioner was advised by the instructions for the CMS-855I, to submit a true, complete, and accurate application. Petitioner violated that affirmative duty.

Contrary to Petitioner’s arguments, the basis for revocation of Petitioner’s Medicare enrollment and billing privileges is clear. P. Br. at 6-7. Petitioner failed to list the California revocation on his 2016 revalidation application. Although the hearing officer on reconsideration made an erroneous finding regarding prior disclosure, she did clearly list the failure to disclose the California revocation as one basis for revocation. CMS Ex. 1 at 4. The fact that Petitioner’s California medical license was revoked is not disputed. The fact that Petitioner failed to list the California revocation on the application he signed and certified on October 27, 2016, is also not disputed. Whether the failure to list the California medical license revocation amounts to false or misleading information and is a

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basis for revocation pursuant to 42 C.F.R. § 424.535(a)(4) is an issue of law that must be resolved against Petitioner. Therefore, there is a clear basis for revocation based on the undisputed facts. Summary judgment is appropriate, and no hearing is required to receive evidence. 

Accordingly, I conclude that there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4), and Petitioner has failed to either rebut the prima facie showing or to establish an affirmative defense.

Summary judgment is also appropriate as to the effective date of revocation. Pursuant to 42 C.F.R. § 424.535(g), revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier, except under certain facts not present in this case. The notices of the initial determination to revoke were dated December 5 and 6, 2017. CMS Exs. 1 at 10-13. It is not clear why two notices of initial determination with different dates were issued. The hearing officer on reconsideration considered the initial determination date to be December 6, 2017, and I accept that finding. CMS Ex. 1 at 1. It is not subject to dispute that the thirtieth day after December 6, 2017, was January 5, 2018. Accordingly, I conclude that January 5, 2018, is the correct revocation date.  

The MAC imposed a three-year bar to reenrollment. CMS Exs. 1 at 13; 2 at 1. When a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from reenrolling in the Medicare program for one to three years. 42 C.F.R. § 424.535(c). There is no statutory or regulatory language establishing a right to review of the duration of the reenrollment bar CMS imposes. Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.535(c), 424.545; 498.3(b), 498.5. The Board has held that the duration of a revoked supplier’s reenrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and thus, is not subject to ALJ review. Vijendra Dave, M.D., DAB No. 2672 at 10-11 (2016).

To the extent that Petitioner’s arguments may be construed as a request for equitable relief, I have no authority to grant such relief. US Ultrasound, DAB No. 2302 at 8 (2010). I am also required to follow the Act and regulations and have no authority to declare statutes or regulations invalid. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

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III. Conclusion

For the foregoing reasons, Petitioner’s Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(4), effective January 5, 2018.

• 1. Citations are to the 2017 revision of the Code of Federal Regulation (C.F.R.) that was in effect at the time of the initial determination, unless otherwise stated.
• 2. A “supplier” furnishes services under Medicare and includes physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) (42 U.S.C. § 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(e)) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.
• 3. The Texas Medical Board temporarily suspended Petitioner’s license when he was terminated from the PHP.  P. Ex. 1 at 32.  It is not apparent from the evidence whether the temporary suspension was automatic pending formal proceedings by the Texas Medical Board or was adjudicated.  The parties do not address whether the temporary suspension meets the definition of a final adverse action under 42 C.F.R. § 424.502.  The parties also do not address whether the information disclosed on the CMS-855I signed October 27, 2016, is a sufficient disclosure of the Texas Medical Board’s temporary suspension.  However, it is not necessary to resolve these issues given the undisputed fact Petitioner did not list the revocation of his medical license in California.
• 4. The evidence shows that the Washington Medical Board imposed three years of probation rather than suspension or revocation of Petitioner’s medical license.  Therefore, the Washington Medical Board action also was not a final adverse action within the meaning of 42 C.F.R. § 424.502.  However, providers and suppliers should carefully consider reporting all actions against their licenses that might be construed by CMS or the MAC to be a final adverse action rather than attempting to avoid reporting by parsing the definitions of 42 C.F.R. § 424.502 too finely.