Oliver Tsai, M.D., DAB CR5304 (2019)

DECISION

Noridian Healthcare Solutions (Noridian), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Oliver Tsai, M.D., effective July 14, 2017. The revocation was based on the suspension of Petitioner's medical license by the Medical Board of California. For the reasons stated below, I affirm CMS's revocation of Petitioner's Medicare enrollment and billing privileges.

I. Background and Procedural History

Petitioner, a physician, was enrolled as a supplier in the Medicare program. CMS Exhibit (Ex.) 1 at 1; see CMS Ex. 3 at 1. On July 11, 2017, the Medical Board of California issued a cease practice order prohibiting Petitioner from engaging in the practice of medicine, effective three days from the date of the order. CMS Ex. 2. Shortly thereafter, on July 21, 2017, Noridian sent Petitioner a letter informing Petitioner that his Medicare privileges had been revoked, effective July 11, 2017. CMS Ex. 3 at 1. Noridian provided the following explanation in its letter:

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

On July 11, 2017, you were issued a Cease Practice Order by the Medical Board of California. The Order took effect at 5:00 p.m. July 11, 2017. A Medicare claim was billed and paid for a date of service after the Cease Practice Order was in effect.

CMS Ex. 3 at 1 (emphasis omitted). Noridian informed Petitioner that he would be barred from re-enrolling in the Medicare program for a period of three years, effective 30 days from the date of postmark of the letter. CMS Ex. 3 at 2.

In a reconsideration request dated August 21, 2017, Petitioner explained that the cease practice order took effect on July 14, 2017, and that the revocation should be effective as of that date (and not July 11, 2017). CMS Ex. 4 at 5. Petitioner did not express any other disagreement with the revocation determination.

On November 14, 2017, Noridian issued a reconsidered determination upholding the revocation of Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1). CMS Ex. 5 at 1. However, Noridian revised the effective date of Petitioner's revocation to July 14, 2017. CMS Ex. 5 at 1.

Petitioner filed a timely request for an administrative law judge (ALJ) hearing that the Civil Remedies Division received on December 4, 2017. On December 8, 2017, ALJ Bill Thomas1 issued an Acknowledgment and Pre-Hearing Order (Order) directing the parties to file pre-hearing exchanges, consisting of a brief by CMS and a response brief by Petitioner, along with supporting evidence, in accordance with specific requirements and deadlines.

CMS filed a combined pre-hearing brief, motion to dismiss, and motion for summary judgment (CMS Br.), along with five exhibits (CMS Exs. 1-5). Petitioner submitted a pre-hearing brief2 (P. Br.). As neither party has objected to any of the proposed exhibits, I admit all submitted exhibits.

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Neither party has submitted written direct testimony, and it is therefore unnecessary to convene a hearing for the purpose of cross-examination of any witnesses. See Order, §§ 8-10. The record is closed, and the case is ready for a decision on the merits.3

II. Issue

Whether CMS has a legal basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) based on Petitioner's noncompliance with Medicare requirements.

 III. Jurisdiction

I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

IV. Findings of Fact, Conclusions of Law, and Analysis4

Petitioner is a "supplier" for purposes of the Medicare program. See 42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202 (definition of supplier). In order to participate in the Medicare program, a supplier must meet certain criteria to enroll and receive billing privileges. 42 C.F.R. §§ 424.505, 424.510. CMS may revoke a supplier's enrollment and billing privileges for any reason stated in 42 C.F.R. § 424.535(a).

Pursuant to 42 C.F.R. § 424.535(a)(1), CMS is authorized to revoke a currently enrolled supplier's billing privileges if the supplier is determined to no longer meet the requirements for enrollment. Among the applicable requirements with which a supplier must comply to maintain enrollment is compliance with the applicable federal and state

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licensure requirements. 42 C.F.R. § 424.516(a)(2). A supplier who is a physician must be "legally authorized to practice by the State in which he or she performs the functions or actions, and . . . acting within the scope of his or her license." 42 C.F.R. § 410.20(b).

If CMS revokes a supplier's Medicare billing privileges based on a license suspension, the revocation becomes effective on the date of the license suspension. 42 C.F.R. § 424.535(g). After a supplier's Medicare enrollment and billing privileges are revoked, the supplier is barred from re-enrolling in the Medicare program for one to three years. 42 C.F.R. § 424.535(c).

1. On July 11, 2017, the Medical Board of California issued a Cease Practice Order, effective July 14, 2017, which resulted in Petitioner being indefinitely suspended from the practice of medicine.

On July 11, 2017, the Medical Board of California ordered that Petitioner "is prohibited from engaging in the practice of medicine," effective July 14, 2017. The cease practice order stated: "Respondent shall not resume the practice of medicine until a final decision has been rendered on the accusation and/or a petition to revoke probation." CMS Ex. 2.

2. CMS has a legal basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) because Petitioner did not comply with the enrollment requirement of meeting the federal and state licensure provisions of 42 C.F.R. § 424.516(a)(2) due to not being licensed by his state as required by 42 C.F.R. § 410.20(b).

Noridian was authorized to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1), which states that CMS may revoke a supplier's Medicare billing privileges and any corresponding supplier agreement for noncompliance with enrollment requirements. Pursuant to 42 C.F.R. § 424.516(a)(2), a supplier must comply with federal and state licensure requirements, and a physician must be licensed in the state where he or she practices as required by 42 C.F.R. § 410.20(b). Petitioner does not dispute that he was not licensed to practice medicine after July 14, 2017. P. Br. In fact, Petitioner conceded that he continued to be prohibited from engaging in the practice of medicine. P. Br. Once Petitioner failed to meet the licensing requirement, a legitimate basis arose for CMS to revoke Petitioner's billing privileges for noncompliance with Medicare enrollment requirements. 42 C.F.R. § 424.535(a)(1).

3. The effective date of revocation is July 14, 2017.

The effective date of revocation is determined pursuant to 42 C.F.R. § 424.535(g), which provides:

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(g) Effective date of revocation. Revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier, except if the revocation is based on Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational. When a revocation is based on a Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational, the revocation is effective with the date of exclusion or debarment, felony conviction, license suspension or revocation, or the date that CMS or its contractor determined that the provider or supplier was no longer operational.

42 C.F.R. § 424.535(g). The evidence demonstrates that Petitioner's medical license was suspended effective July 14, 2017. CMS Ex. 2. The effective date of revocation is properly July 14, 2017. CMS Exs. 2; 5 at 1; 42 C.F.R. § 424.535(g).

4. The three-year length of the re-enrollment bar is not reviewable.

In his brief, Petitioner focuses on the three-year length of the re-enrollment bar and requests that it be "reduced to 1 or 2 years." P. Br. at 2. Petitioner argues that his specialty is internal medicine and his sub-specialty is in geriatric medicine, and that the enrollment bar is a "harsh punishment" and he would not be able to serve his Medicare patients again. P. Br. at 2-3. Petitioner also argues that, although he expected that his medical license would continue to be suspended for at least another 12 months, a three-year re-enrollment bar is "an excessive penalty." P. Br. at 2-3.

The DAB has explained that "CMS's determination regarding the duration of the re‑enrollment bar is not reviewable." Vijendra Dave, M.D., DAB No. 2672 at 11 (2016). The DAB explained that "the only CMS actions subject to appeal under Part 498 are the types of initial determinations specified in section 498.3(b)." Id. The DAB further explained that "[t]he determinations specified in section 498.3(b) do not, under any reasonable interpretation of that regulation's text, include CMS decisions regarding the severity of the basis for revocation or the duration of a revoked supplier's re-enrollment bar." Id. The DAB discussed that a review of the rulemaking history showed that CMS did not intend to "permit administrative appeals of the length of a re-enrollment bar." Id. I have no authority to review this issue, and I do not disturb the three-year re-enrollment bar.

To the extent that Petitioner's request for a shorter re-enrollment bar is based on principles of equitable relief, I cannot grant relief in equity. US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory

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requirements."). Petitioner points to no authority by which I may grant him relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) ("An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground ....").

V. Conclusion

For the reasons explained above, I affirm CMS's determination revoking Petitioner's Medicare enrollment and billing privileges.

1. This case was reassigned to me on March 8, 2019.
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2. It appears that Petitioner drafted his brief using a "short form brief" template that he presumably obtained from the Departmental Appeals Board (DAB) website. The "short form brief" template is applicable to a specific type of case in which the Inspector General of the Department of Health and Human Services is a party, but is not applicable to supplier enrollment cases in which CMS is the respondent. Nonetheless, because Petitioner only presents equitable arguments asking for a reduction in the length of the re-enrollment bar, which is a matter that is outside of my jurisdiction, Petitioner is not prejudiced by his use of the short-form brief template.
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3. CMS argues that dismissal is warranted because Petitioner did not challenge the duration of the re-enrollment bar when he requested reconsideration. Yet, CMS also contends that Petitioner has no right to challenge the re-enrollment bar. CMS Br. at 6-7 ("Imposing a three year enrollment bar is not an 'initial determination' under the regulations," and "any argument related to whether CMS properly imposed a three year enrollment bar on Petitioner cannot be considered in this appeal."). Owing to the inherent contradiction in CMS's argument that Petitioner had to preserve a right to appeal a determination that he purportedly has no right to appeal, I issue this decision on the merits.
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4. My numbered findings of fact and conclusions of law are set forth in italics and bold font.
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