Shashibala Soni, M.D., DAB CR5821 (2021)

DECISION

Petitioner, Shashibala Soni, M.D., is a New York physician who participated in the Medicare program.  In November 2008, she was convicted of conspiring to defraud the United States, a felony.  She lost her medical license, and Medicare contractors have twice revoked her Medicare enrollment and billing privileges, most recently on August 16, 2016, which was followed by a three-year reenrollment bar. 

Because her Medicare enrollment was revoked for conduct detrimental to the Medicare program and because she was under a reenrollment bar, the Centers for Medicare and Medicaid Services (CMS) added Petitioner’s name to the Medicare preclusion list, effective January 1, 2019. 

Petitioner appealed. 

I affirm CMS’s determination.  I find that CMS was authorized to include Petitioner Soni on the preclusion list because her Medicare enrollment was revoked for conduct detrimental to the best interests of the Medicare program, and she was under a reenrollment bar at the time her name was added to the preclusion list.

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Background

By letter dated August 1, 2018, CMS advised Petitioner that she was being added to the CMS preclusion list, effective January 1, 2019.  As the letter explains, CMS acted pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6) because Petitioner’s Medicare billing privileges were previously revoked, she was under a reenrollment bar, and CMS determined that the conduct leading to her revocation is detrimental to the best interests of the Medicare program.  CMS Ex. 7 at 1. 

Petitioner requested reconsideration.  CMS Ex. 8.  In a reconsidered determination, dated November 15, 2018, a CMS hearing officer upheld the initial determination.  The hearing officer agreed that including Petitioner on the preclusion list was proper because her enrollment was revoked for conduct detrimental to the Medicare program, and she was under a reenrollment bar.  P. Ex. 2. 

Petitioner timely appealed.

CMS moves for summary judgment.  My initial order instructs the parties to list any proposed witnesses and to submit their written direct testimony.  Acknowledgment and Prehearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (January16, 2019).  The order also directs the parties to indicate which, if any, of the opposing side’s witnesses the party wishes to cross-examine and explains that an in-person hearing is needed only if a party wishes to cross-examine the opposing side’s witnesses.  Id. at 5, 6 (¶¶ 9, 10).  CMS lists no witnesses.  Petitioner lists one witness, herself, but does not provide a written declaration.  She would therefore not be allowed to testify.  See James Brian Joyner, M.D., DAB No. 2902 at 11-12 (2018); Miracle Deeds Medical Supplies, LLC, DAB No. 2785 at 4-5 (2017).  In any event, CMS has not asked to cross-examine her.  See Acknowledgment at 5 (¶ 9).  An in-person hearing would therefore serve no purpose, and I may decide this case based on the written record without considering whether the standards for summary judgment are met.  

CMS submits its brief (CMS Br.) and ten exhibits (CMS Exs. 1-10).  Petitioner submits her brief and nine exhibits (P. Exs. 1-9).  In the absence of any objections, I admit into evidence CMS Exs. 1-10 and P. Exs. 1-9.

Discussion

CMS acted within its authority when it added Petitioner to its preclusion list because her Medicare enrollment was revoked for conduct detrimental to the best interests of the Medicare program, and she was then under a reenrollment bar.1

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The Medicare Program.  The Medicare program, Title XVIII of the Social Security Act (Act) is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease.  Medicare is divided into four parts: 

• Part A is the hospital insurance program.  It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, home health, hospice, and other services.  Act § 1832 (42 U.S.C. § 1395k);
• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health maintenance organizations, that receive a fixed payment for each enrollee.  Act § 1851 (42 U.S.C. § 1395w-21); and
• Part D is the voluntary prescription drug benefit program.  Act § 1860D (42 U.S.C. § 1395w-101). 

The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services.  CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes.  Act § 1842 (42 U.S.C. § 1395u).  Contractors pay claims to “providers” (Part A) and “suppliers” (Part B).  

Physicians, such as Petitioner, may participate in the program as “suppliers” of services.  Act § 1861(d), (q), (r) (42 U.S.C. § 1395x(d), (q), (r)); 42 C.F.R. § 400.202.

Revocation.  CMS may revoke a physician supplier’s Medicare billing privileges if, among other provisions: 

• she is not in compliance with enrollment requirements, which include state licensing requirements.  42 C.F.R. § 424.535(a)(1); see 42 C.F.R. §§ 410.20(b), 424.510(d)(iii)(A);
• within the preceding ten years, she was convicted of a felony offense that CMS “has determined to be detrimental to the best interests of the program and its beneficiaries.”  Offenses for which billing privileges may be terminated include – but are not limited to – financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and similar crimes.  42 C.F.R. § 424.535(a)(3)(i)(B); or

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• she fails to report, within 30 days, any adverse legal action.  42 C.F.R. § 424.535(a)(9); see 42 C.F.R. § 424.516(d)(1)(ii).

See also Act §§ 1842(h)(8), 1861(r), and 1866(b)(2)(D). 

The preclusion list.  Effective January 1, 2019, CMS implemented a “preclusion list” as part of its effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees,” particularly with respect to prescription drug abuse.2   Pursuant to 42 C.F.R. § 422.2 (Part C) and 42 C.F.R. § 423.100 (Part D) CMS’s “preclusion list” includes individuals and entities that:

• are currently revoked from Medicare enrollment, are under an active reenrollment bar, and CMS determines that the underlying conduct leading to the revocation is detrimental to the best interests of the Medicare program; or
• have engaged in behavior for which CMS could have revoked the prescriber, individual, or entity had it been enrolled in the Medicare program, and CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program.

Petitioner’s offense and the revocations.  Petitioner Soni was a physician, licensed and practicing in New York.  CMS Ex. 1 at 1.  On September 20, 2005, she and two others were indicted on one count of conspiring to defraud the United States.  Specifically, over a period of almost ten years, she and her co-conspirators set up shell companies, which conducted no business and had no legitimate purpose.  The conspirators transferred revenue from Petitioner’s medical practice to bank accounts held by the sham companies in order to conceal Petitioner’s income from the IRS.  CMS Ex. 1. 

On November 7, 2008, a jury found Petitioner guilty of conspiring to defraud the United States, in violation of 18 U.S.C. § 371.  CMS Ex. 2.  She was sentenced to 51 months in prison, followed by three years of supervised release, and ordered to pay $1,587,882 in restitution.  CMS Ex. 3.  Petitioner appealed, and the Court of Appeals for the Second Circuit affirmed her conviction.  U.S. v. Sehgal, 480 Fed. Appx. 16, 19-21 (2d Cir. 2012).

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Following her conviction, Petitioner lost her medical license.  P. Ex. 3b at 9; see CMS Ex. 4 at 1.  In a letter dated September 2, 2011, the Medicare contractor, Highmark Medicare Services, advised Petitioner that her Medicare billing privileges were revoked, effective July 6, 2011.  The letter explains that the contractor revoked for two reasons:  1) pursuant to section 424.535(a)(1), because Petitioner was no longer authorized to practice in the State of New York; and 2) because she did not report the loss of her license, Petitioner did not comply with the reporting requirements specified in section 424.516(d)(1)(ii).  The contractor imposed a one-year reenrollment bar.  CMS Ex. 4. 

On July 6, 2013, Petitioner filed a Medicare form 855O enrollment application, which is used by physicians to enroll in the Medicare program for the limited purposes of ordering or certifying items and services or prescribing Part D drugs for Medicare beneficiaries.  CMS Ex. 5.3   In a letter dated September 12, 2013, the contractor, National Government Services, approved the application, with an effective date of July 11, 2013.  P. Ex. 3b at 11-12.  

On August 16, 2016, however, the contractor advised Petitioner that her Medicare privileges were revoked, effective November 18, 2010, based on section 424.535(a)(3) because she was convicted of felony conspiracy to defraud the United States.  The contractor imposed a three-year reenrollment bar.  CMS Ex. 6.  Petitioner did not request reconsideration, so the contractor’s determination is binding.  42 C.F.R. § 498.20(b). 

This case is straight-forward.  Petitioner was convicted of felony tax fraud, a crime that is, by regulation, detrimental to the best interests of the Medicare program and its beneficiaries.  CMS was therefore authorized to revoke her Medicare enrollment and billing privileges and to impose a reenrollment bar.  42 C.F.R. §§ 424.535(a)(3)(B), 424.535(c).  Because her enrollment was revoked for a felony conviction deemed detrimental to the best interests of the Medicare program and its beneficiaries and because she was under a reenrollment bar, CMS was authorized to add Petitioner to the Medicare preclusion list.  42 C.F.R. §§ 422.2, 423.100. 

Petitioner, however, challenges the underlying revocation; she complains that she was denied due process because she did not receive the August 16, 2016 revocation notice.  She also complains that CMS did not revoke her enrollment until eight years after her conviction, and she continues to assert that she was wrongfully convicted. 

This is not the forum in which Petitioner can challenge any aspect of her revocation or the underlying conviction.  My review is limited.  I may review CMS’s reconsidered determination to include Petitioner on the preclusion list.  42 C.F.R. §§ 498.3(b)(20), 498.5(n)(1); see 42 C.F.R. § 423.120(c)(6)(v)(A) (“A prescriber may appeal his or her inclusion on the preclusion list under this section in accordance with part 498 of this

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chapter.”); 83 Fed. Reg. 16643 (confirming that “the preclusion appeals process would neither include nor affect appeals of . . . enrollment revocations, for there are separate appeals processes for these actions.”); Hiva Vakil, M.D., DAB No. 2460 at 5 (2012) (“[T]he regulations plainly require that CMS or one of its contractors must issue a ‘reconsidered determination’ before the affected party is entitled to request a hearing before an ALJ.”).  Other avenues were available for challenging her criminal conviction (which she pursued) and the revocation, but this forum is not one of them.

Finally, as the Departmental Appeals Board has repeatedly confirmed, I am not authorized to overturn a legally valid agency action based on equitable grounds or otherwise grant equitable relief.  Wendell Foo, M.D., DAB No 2904 at 25 (2018), citing Foot Specialists of Northridge, DAB No 2773 at 18 (2017).  I may review whether the regulations authorize CMS’s actions.  So long as CMS establishes a basis for placing Petitioner on the preclusion list, I must uphold its doing so.  See Foo, DAB No. 2904 at 3; Wassim Younes, M.D. and Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018), citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016).

Conclusion

CMS was authorized to include Petitioner Soni on the preclusion list because her Medicare enrollment was revoked for conduct detrimental to the best interests of the Medicare program, and she was under a reenrollment bar at the time her name was added.  I therefore affirm CMS’s determination.

1. I make this one finding of fact/conclusion of law to support my decision.
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2. Apparently, CMS considered requiring Medicare enrollment for all providers and suppliers of Medicare Advantage services and subscribers of Part D drugs but, ultimately, opted for a preclusion list instead.  CMS concluded that the burden of requiring Medicare enrollment for hundreds of thousands of additional providers, suppliers, and prescribers would be too great and would threaten beneficiary access to prescriptions and services.  See 82 Fed. Reg. 56442, 56448 (November 28, 2017); 83 Fed. Reg. 16646 (April 16, 2018).
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3. Petitioner disclosed her felony conviction.  CMS Ex. 5 at 2-3, 9-10.
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