Joseph C. Probst, DC and Stateline Chiropractic and Sports Injury Clinic, DAB CR5492 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS) revoked the Medicare enrollment and billing privileges of Petitioners Joseph C. Probst, DC (Dr. Probst) and Stateline Chiropractic and Sports Injury Clinic (Stateline) because Dr. Probst, the sole owner of Stateline, was excluded from participation in all federal health care programs by the Inspector General (IG) of the United States Department of Health and Human Services and because Dr. Probst failed to indicate he was excluded on the Medicare enrollment applications he filed for himself and Stateline. For the reasons stated below, I affirm the determination to revoke Petitioners' Medicare enrollment and billing privileges.

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I. Case Background and Procedural History

Dr. Probst is a chiropractor who was enrolled in the Medicare program as a supplier effective July 30, 2018. CMS Exhibit (Ex.) 5 at 1. Stateline was an enrolled Medicare supplier that Petitioner Probst owned. CMS Ex. 15 at 1, 5. In a November 21, 2018 initial determination, a CMS contractor revoked Dr. Probst's Medicare enrollment and billing privileges, effective July 30, 2018, for the following reasons:

42 CFR § 424.535(a)(2) – Provider or Supplier Conduct
On December 20, 1999, you were excluded by the [IG], pursuant to Section 1128(a)(1) of the Social Security Act.

Please note, the date of your exclusion precedes your enrollment date into the Medicare program. Therefore, [CMS] will revoke your Medicare enrollment back to the date of first enrollment.

42 CFR § 424.535(a)(4) – False or Misleading Information
On your [CMS] 855 enrollment application, signed on August 6, 2018, you did not disclose your December 20, 1999, [IG] exclusion. An [IG] exclusion is listed as an adverse action that requires reporting on the 855I application.

42 CFR § 424.535(a)(9) – Failure to Report
On December 20, 1999, you were excluded by the [IG], pursuant to Section 1128(a)(1) of the Social Security Act. You did not notify CMS of this adverse legal action as required under 42 CFR § 424.516.

CMS Ex. 7 at 1. The initial determination also stated that Dr. Probst was barred from re-enrollment for three years. CMS Ex. 7 at 2.

In a substantially similar initial determination also issued on November 21, 2018, the CMS contractor revoked Stateline's Medicare enrollment and billing privileges for essentially the same reasons as stated in the initial determination revoking Dr. Probst's enrollment and billing privileges. However, the CMS contractor set April 18, 2018, as the effective date for the revocation. The CMS contractor also set a three-year re-enrollment bar for Stateline. CMS Ex. 17.

Petitioners requested reconsideration, indicating that Dr. Probst did not know he had been excluded by the IG. Petitioners also sought an opportunity to correct their enrollment applications. CMS Ex. 8 at 2-3.

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On March 20, 2019, a CMS hearing officer issued a reconsidered determination upholding the revocation of Dr. Probst's enrollment and billing privileges. CMS Ex. 1. The hearing officer stated:

CMS determines that the revocation of Dr. Probst's Medicare billing privileges is appropriate under § 424.535(a)(2) because Dr. Probst is excluded from all federal health care programs, including Medicare. The revocation is appropriate under § 424.535(a)(4) because Dr. Probst certified as"true" misleading or false information, when he failed to disclose his OIG exclusion on the Medicare web enrollment application. However, Dr. Probst did not have a duty to report his OIG exclusion to his Medicare contractor within 30 days of the reportable event because he was not enrolled in the Medicare program at the time of his exclusion. Therefore, CMS overturns the revocation of Dr. Probst's Medicare billing privileges as it relates to § 424.535(a)(9), but CMS upholds the revocation of Dr. Probst's Medicare billing privileges under § 424.535(a)(2) and (4).

CMS Ex. 1 at 6.

Also on March 20, 2019, the CMS hearing officer issued a reconsidered determination upholding the revocation of Stateline's enrollment and billing privileges. The CMS hearing officer did so for essentially the same reasons indicated in Dr. Probst's reconsidered determination. The CMS hearing officer also changed the revocation effective date to July 30, 2018. CMS Ex. 14 at 7.

Petitioners filed a single request for a hearing to dispute the revocations. This case was assigned to me and, on May 22, 2019, the Civil Remedies Division issued my Standing Prehearing Order. In conformance with the Standing Prehearing Order, CMS filed a brief and motion for summary judgment (CMS Br.), along with 17 exhibits (CMS Exs. 1-17). CMS did not offer any witness testimony. Petitioners filed a response to the motion for summary judgment (P. Br.) along with one proposed exhibit (P. Ex. 1), an affidavit from Dr. Probst. CMS filed a reply brief (CMS Reply).

The Civil Remedies Division originally docketed this case with Dr. Probst as the sole Petitioner. However, I modified the case caption to include Stateline as a petitioner because the hearing request appears to include both suppliers as parties. See June 20, 2019 Order.

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II. Decision on the Record

I admit CMS Exs. 1-17 and P. Ex. 1 into the record without objection. Standing Prehearing Order ¶ 10; Civil Remedies Division Procedures (CRDP) § 14(e).

I ordered the parties to provide written direct testimony for any witnesses they may want to present in this case and to submit a request if they wanted to cross-examine any of the witnesses. Standing Prehearing Order ¶ ¶ 7(d)(iv), 11-12; CRDP §§ 16(b), 19(b). I informed the parties that I would not hold a hearing unless a party wanted to cross-examine a witness. Standing Prehearing Order ¶ 13. In the present case, CMS did not provide written direct testimony for any witnesses and did not request to cross-examine Dr. Probst. Therefore, I render this decision based on the written record. Standing Prehearing Order ¶ 14; CRDP § 19(d).

III. Issue

Whether CMS had a legitimate basis to revoke Petitioners' billing privileges under 42 C.F.R. §§ 424.535(a)(2) and (4).

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 appear in bold and italics.

Chiropractors who participate in the Medicare program are considered"suppliers." See 42 U.S.C. § 1395x(d), (r)(5). 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 provider or 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).

CMS may revoke the enrollment and billing privileges for any of the reasons listed in 42 C.F.R. § 424.535(a).

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1. The IG excluded Dr. Probst from participating in all federal health care programs effective December 20, 1999, and the exclusion has remained in effect.

On December 1, 1998, a District Judge with the United States District Court for the Eastern District of Missouri (District Court) issued a Judgment in a Criminal Case in which it noted that Dr. Probst pleaded guilty to committing Mail Fraud (18 U.S.C. § 1341). CMS Ex. 2 at 24; CMS Ex. 9 at 6. The District Court sentenced Dr. Probst to 12 months and one day in prison. CMS Ex. 2 at 25. The District Court also ordered Dr. Probst to pay a total of $19,469.80 in restitution to numerous insurance companies and to the Medicare program. CMS Ex. 2 at 28-29. In his criminal case, Dr. Probst stipulated that he used the United States mail to further a scheme to defraud Medicare and other health insurers. CMS Ex. 2 at 15. Specifically, Dr. Probst stipulated that from 1991 to 1996, he submitted insurance and Medicare claims that falsely and fraudulently represented, omitted, and concealed material facts, and included claims for services that he had not rendered. CMS Ex. 2 at 21-22. Finally, Dr. Probst stipulated:1

Exclusion from Programs. [Dr. Probst] recognizes that the conduct in this Agreement is classified as a program related offense under 42 U.S.C. § 1320a-7(a). [Dr. Probst] further recognizes that he will be excluded from participation in any federal or state program, including but not limited to Title XVIII (Medicare), Title XIX (Medicaid), and Title V and XX, under the authority of the Office of the Inspector General for the Department of Health and Human Services, as identified in 42 U.S.C. § 1320a-7(b), 42 U.S.C. § 1320a-7(d) and 42 U.S.C. § 1320a-7(a), for a period to be determined by the United States Department of Health and Human Services. This exclusion is nationwide and applies to all other federal procurement and non-procurement programs and activities. The defendant hereby waives any and all rights to appeal the exclusion, to include the duration of the exclusion, to any judicial or administrative body.

CMS Ex. 8 at 12.

The IG sent a letter on November 30, 1999, to Dr. Probst at the Federal Corrections Institute in Manchester, Kentucky, informing him that the IG was excluding him for ten years from participation in federal health care programs. Hearing Request at 1. Dr.

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Probst was released from prison on December 2, 1999, and did not receive the letter. Hearing Request at 1; CMS Ex. 8 at 2; CMS Ex. 11. The exclusion became effective on December 20, 1999, and, while Petitioner is now attempting to obtain reinstatement, the exclusion remains in effect. CMS Exs. 6, 12-13; see also 42 C.F.R. § 1001.2002(b). Dr. Probst was excluded under section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)), which requires exclusion for any individual or entity who is convicted of a criminal offense related to the delivery of an item or services under the Medicare program or any state health care program. CMS Exs. 6, 12-13. Although Dr. Probst is seeking reinstatement from the IG, there is no evidence that his exclusion has ended. P. Ex. 1 ¶ 6.

2. CMS had a legitimate basis to revoke Petitioners' Medicare enrollments and billing privileges because the IG excluded Dr. Probst under section 1128 of the Act.

CMS may revoke the enrollment and billing privileges of a supplier when the supplier or the owner of the supplier is:

Excluded from the Medicare, Medicaid, and any other Federal health care program, as defined in [42 C.F.R.] § 1001.2 ... in accordance with section 1128, 1128A, 1156, 1842, 1862, 1867 or 1892 of the Act.

42 C.F.R. § 424.535(a)(2)(i).

In the present case, there is no dispute that Dr. Probst was a supplier in the Medicare program, the IG excluded him in 1999, and he remains excluded. Therefore, CMS had a legitimate basis to revoke Dr. Probst's enrollment and billing privileges.

Further, the record indicates that Dr. Probst is the sole owner of Stateline. CMS Ex. 15 at 5. As such, CMS had the authority to revoke Stateline's enrollment and billing privileges.

In defense, Dr. Probst asserts that he did not know that he was excluded and that he needed to be reinstated by the IG. Dr. Probst thought that the exclusion would terminate at the end of the period of exclusion. P. Ex. 1 ¶ 4; P. Br. at 3; Hearing Request at 1; CMS Ex. 8 at 2. Although the timing of the exclusion notice appears to support Dr. Probst's assertion that the notice must have reached the prison he was housed in shortly after his release, this does not provide a defense to revocation. Dr. Probst signed a stipulation related to his criminal case in which he acknowledged he would be excluded by the IG and that he waived all appeal rights to the exclusion. CMS Ex. 8 at 12. Therefore, Dr. Probst was on notice that he would be excluded. Prudence would dictate that he should have inquired with the IG as to his exclusion status, especially since Dr. Probst stipulated that the IG could set the length of exclusion without recourse to appeal. The IG could

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have excluded him for longer than 10 years. Therefore, it was incumbent on Dr. Probst to find out how long the exclusion was to last.

Further, as CMS argues, Dr. Probst had notice through the Act and regulations that exclusions do not automatically end, but rather, excluded individuals must apply for the exclusion to end. 42 U.S.C. § 1320a-7(g); 42 C.F.R. §§ 1001.3001-1001.3005. While Dr. Probst appears to be pursuing reinstatement with the IG, that is insufficient for me to reverse CMS's revocation.

3. Dr. Probst certified on two CMS-855I enrollment applications and a CMS-855B enrollment application that the only final adverse actions he had been subject to were a criminal conviction and a disciplinary action related to his chiropractic license, and failed to reveal that he was excluded by the IG.

On or about April 24, 2018, Dr. Probst signed and submitted a CMS-855I application seeking enrollment as a supplier in the Medicare program. CMS Ex. 2. The application stated that Dr. Probst needed to"report each final adverse legal action" and expressly identified a final adverse action as"[a]ny suspension or exclusion from participation in, or any sanction imposed by, a Federal or State health care program." CMS Ex. 2 at 13-14. However, Dr. Probst only listed his 1998 criminal conviction and 2018 consent order regarding a disciplinary action involving his Illinois chiropractic license, and did not indicate that he was excluded by the IG. CMS Ex. 2 at 14. Dr. Probst signed a statement certifying that the contents of the application were"true, correct, and complete." CMS Ex. 2 at 56-57.

CMS rejected Dr. Probst's CMS-855I application, but permitted him to file another one. CMS Ex. 3. On August 6, 2018, Dr. Probst filed another CMS-855I application, again certifying that the only adverse actions he had been subject to were his criminal conviction and the disciplinary action related to his license. CMS Ex. 4 at 5. On that same date, Dr. Probst filed a CMS-855B application to enroll Stateline in the Medicare program, and certified that his only final adverse actions were the criminal conviction and the disciplinary action against his chiropractic license. CMS Ex. 15 at 3.

4. CMS had a legitimate basis to revoke Petitioners' Medicare enrollments and billing privileges because Dr. Probst certified, as true, false or misleading information related to his exclusion on Petitioners' Medicare enrollment applications.

CMS may revoke a supplier's Medicare enrollment and billing privileges under the following circumstance:

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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).

In the present case, Dr. Probst filed three CMS-855I enrollment applications and, on each one, did not indicate that he was excluded from participation in all federal health care programs by the IG, despite the fact that the application required him to disclose all final adverse actions. As indicated in the enrollment application's instructions, a final adverse action includes an exclusion. 42 C.F.R. § 424.502. Dr. Probst's certification on the enrollment applications that he had provided true, correct, and complete answers on the application, is sufficient to provide CMS with a basis to revoke Petitioners' Medicare enrollments and billing privileges under 42 C.F.R. § 424.535(a)(4).

As stated above, Petitioners argue that Dr. Probst did not know that he was excluded or that he needed to seek reinstatement from the IG. Petitioners characterize Dr. Probst's actions as a simple mistake and indicate that they would like the opportunity to correct the misinformation on the enrollment applications.

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.").

Further, 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 Probst a chance to correct his mistaken certification. Under the regulations, CMS only allows a supplier to submit a corrective action plan when the revocation involves a failure to meet enrollment requirements. 42 C.F.R. § 405.809(a). Therefore, I cannot require CMS to allow Petitioners to correct their applications.

Although Petitioners assert that Dr. Probst was not trying to hide his exclusion since he disclosed his criminal conviction, a recent decision from the DAB is instructive. In that case, a physician had been convicted of a crime and was excluded by the IG from participation in the Medicare program and all other federal health care programs for five years. After the IG reinstated the physician, the physician submitted a CMS-855I application 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

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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). This reflects the requirement that enrollment applications be"[c]omplete, accurate, and truthful responses to all information requested within each section as applicable to the provider or supplier type." 42 C.F.R. § 424.510(d)(2).

As indicated earlier, Dr. Probst stipulated to an IG exclusion when he was pleading guilty in his criminal case. CMS Ex. 8 at 12. While it appears that Dr. Probst did not receive the IG's notice of exclusion, he should have confirmed his exclusion status with the IG before failing to inform CMS of the exclusion.

VI. Conclusion

I affirm CMS's revocation of Petitioners' Medicare enrollments and billing privileges.

• 1.Dr. Probst attached the stipulation in his criminal case to his Medicare enrollment application. That version was missing the second page of the stipulation. CMS Ex. 2 at 15-16. Attached to the reconsideration request is the missing page. CMS Ex. 8 at 12.