Samuel Bride, M.D., DAB CR5960 (2021)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through its Medicare administrative contractor, Novitas Solutions (Novitas), revoked the enrollment and billing privileges of Samuel Bride, M.D. (Petitioner), pursuant to 42 C.F.R. § 424.535(a)(2), based on Petitioner’s exclusion from Medicare on July 20, 2017.  Novitas also barred Petitioner from re-enrolling in the Medicare Program for three years.  Following the revocation of Petitioner’s enrollment, CMS’s Provider Enrollment and Oversight Group1  placed Petitioner on the CMS preclusion list.  See 42 C.F.R. §§ 422.2 and 423.100.  Medicare Advantage (Part C) organizations and Part D prescription drug plan sponsors may not make any payment for health care items, services, or drugs that are furnished, ordered, or prescribed by an individual or entity included on the preclusion list.  See 42 C.F.R. §§ 422.222 and 423.120(c)(6).

Petitioner requested reconsideration of CMS’s determination to place him on the preclusion list.  CMS issued an unfavorable reconsidered determination affirming

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Petitioner’s inclusion on the preclusion list, and Petitioner appealed.  As explained below, I conclude that CMS had a legal basis to place Petitioner on its preclusion list.

I.          Background and Procedural History

Petitioner is a physician who was licensed to practice medicine and surgery in the Commonwealth of Virginia.  See, e.g., CMS Exhibit (Ex.) 1 at 1.  In an order issued September 20, 2016, the Virginia Board of Medicine (Virginia Board) suspended Petitioner’s medical license for an indefinite period, not less than 24 months.  Id. at 7-8.  The Virginia Board’s order concluded that Petitioner was unfit and unable to practice medicine and surgery with reasonable skill and safety to patients and the public due to substance abuse.  Id. at 2.  The Board based its conclusion, in part, on evidence that Petitioner pleaded nolo contendere to charges of unlawful possession of controlled drugs and driving under the influence (DUI) of drugs and alcohol.  Id. at 3.  A state court in Oklahoma, where Petitioner was employed as a locum tenens physician, deferred sentencing for two years and required Petitioner to complete a drug and alcohol assessment, follow recommendations resulting from the assessment, attend DUI school, attend a Victim Impact Program, and pay fees, costs, and/or assessments totaling approximately $1,650.00.2   Id.

In a letter dated June 30, 2017, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (IG) notified Petitioner that, effective July 20, 2017, he was to be excluded from participating in Medicare, Medicaid, and other federal health care programs as authorized by section 1128(b)(4) of the Social Security Act (Act).  CMS Ex. 10.  The IG’s letter explained that Petitioner was being excluded because his medical license in Virginia was suspended3  for reasons bearing on Petitioner’s professional competence, professional performance, or financial integrity.4   Id. 

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By letter dated August 15, 2017, Novitas revoked Petitioner’s Medicare enrollment and billing privileges, effective as of the dated of Petitioner’s exclusion, July 20, 2017.  CMS Ex. 4 at 1.  Novitas explained that, pursuant to 42 C.F.R. § 424.535(a)(2), Petitioner’s Medicare enrollment was revoked based on the IG exclusion.  Id.  Novitas also imposed a three‑year re‑enrollment bar.  Id. at 2.  Petitioner did not contest the 2017 revocation of his enrollment and billing privileges.  There being no appeal of the revocation, that administrative sanction became binding.  42 C.F.R § 498.20(b).

By letter dated August 1, 2018, the CMS Center for Program Integrity notified Petitioner that he was being added to the preclusion list effective January 1, 2019, because his Medicare enrollment was revoked and he was under a three-year re-enrollment bar.  CMS Ex. 6.  Petitioner requested reconsideration of the August 1, 2018 initial determination.5   CMS Ex. 8.  On April 1, 2019, Petitioner submitted a supplemental request for reconsideration and attached additional exhibits.  CMS Ex. 9.

By letter dated May 29, 2019, a hearing officer in CMS’s Provider Enrollment and Oversight Group issued an unfavorable reconsidered determination finding that CMS properly placed Petitioner on the preclusion list:

[Petitioner’s] Medicare billing privileges were revoked under 42 C.F.R. § 424.535(a)(2), based on exclusion from Medicare on July 20, 2017.  In addition, a three-year re-enrollment bar was imposed against [Petitioner’s] Medicare enrollment.  CMS has confirmed that [Petitioner’s] enrollment remains revoked, and he is currently under a re-enrollment bar.  Lastly, as explained above, CMS determines that the underlying conduct, which led to the revocation of [Petitioner’s] Medicare billing privileges, is detrimental to the best interest of the Medicare program.  As a result, [Petitioner] will remain included on the CMS preclusion list, effective January 1, 2019.  

Docket Entry #1a in DAB E-File.

Petitioner, through counsel, timely requested a hearing before an administrative law judge, and the case was assigned to me.  At my direction, my office acknowledged Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  Pursuant to the Prehearing Order, CMS filed a motion for summary judgment and prehearing brief (CMS Br.) and ten proposed exhibits (CMS Exs. 1‑10). 

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With his brief, Petitioner filed four proposed exhibits (P. Exs. A-D).6   Petitioner did not object to CMS’s proposed exhibits.  CMS objected to all of Petitioner’s proposed exhibits.

There being no objection from Petitioner, I admit CMS Exs. 1‑10 into the record.  CMS argues that Petitioner’s proposed exhibits are duplicative of various CMS exhibits, and that their probative value is substantially outweighed by the danger of “needlessly presenting cumulative evidence.”  CMS Request to Cross-Examine at 1.  CMS argues that pursuant to my Pre-Hearing Order ¶ 4(c)(iii), and consistent with Fed. R. Evid. 403, all of Petitioner’s exhibits should be excluded.  Id.  Petitioner did not respond to CMS’s objection to his exhibits.  I have compared Petitioner’s proposed exhibits with those offered by CMS and I agree with CMS that Petitioner’s exhibits duplicate CMS’s exhibits.  As such, Petitioner’s exhibits are cumulative, and I sustain CMS’s objections.  Accordingly, I exclude Petitioner’s exhibits.

My Prehearing Order advised the parties that they must submit written direct testimony for any proposed witness and that an in-person hearing would only be necessary if the opposing party requested an opportunity to cross-examine a witness.  Prehearing Order ¶¶ 8-10; Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b); Pacific 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).  Petitioner listed himself as a witness; however, he did not submit his written direct testimony as an exhibit.  In the alternative, Petitioner cross-moved for summary judgment.

Although CMS requested to cross-examine Petitioner, I need not convene a hearing because, as I explain below, I find that regardless of any facts to which Petitioner might testify, CMS is entitled to judgment as a matter of law.  Accordingly, I grant CMS’s motion for summary judgment and deny Petitioner’s cross-motion for summary judgment.

II.       Issues

The issues in this case are: 

Whether summary judgment is appropriate; and

Whether CMS had a legal basis to place Petitioner on its preclusion list, as defined at 42 C.F.R. §§ 422.2 and 423.100.

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III.     Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17) and (20), 498.5(l)(2) and (n)(2);7  see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

 IV.     Discussion

1. Statutory and Regulatory Framework

As a doctor of medicine, Petitioner is a “supplier” in the Medicare program.  See Act § 1861(d) (42 U.S.C. § 1395x(d)); 42 C.F.R. §§ 400.202 (definition of supplier), 410.20 (definition of physician services).  To participate in the Medicare program as a supplier, an individual or entity must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.

CMS or its contractor may revoke a supplier’s Medicare enrollment and billing privileges for any reason specified in 42 C.F.R. § 424.535.  In particular, the regulation authorizes CMS to revoke a supplier’s Medicare enrollment if –

the provider or supplier, or any owner, managing employee, authorized or delegated official, medical director, supervising physician, or other health care personnel of the provider or supplier is excluded from the Medicare, Medicaid, and any other Federal health care program. . . in accordance with section 1128. . . of the Act.

42 C.F.R. § 424.535(a)(2).  Pursuant to 42 C.F.R. § 424.535(c), a supplier whose enrollment is revoked is subject to a re-enrollment bar.  The re-enrollment bar begins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of one year, but not greater than three years, depending upon the severity of the basis for revocation.8  42 C.F.R. § 424.535(c)(1).  A supplier under a re-enrollment bar is barred from participating in the Medicare program from the effective date of the revocation until the end of the re‑enrollment bar.

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An individual or entity whose enrollment has been revoked and who is under a re‑enrollment bar may also, in certain circumstances, be placed on CMS’s preclusion list.  42 C.F.R. §§ 422.2, 423.100.  Medicare Advantage organizations and Medicare Part D plan sponsors may not provide reimbursement for any items or services furnished by an individual or entity on CMS’s preclusion list, or for prescriptions the individuals write.  42 C.F.R. §§ 422.222, 422.224, 423.120(c)(6).  In order for CMS to include an individual, entity, or prescriber on its preclusion list, all of the following requirements must be met: 

(i) The individual, entity, or prescriber is currently revoked from Medicare under [42 C.F.R.] § 424.535;
(ii) The individual, entity, or prescriber is currently under a reenrollment bar under [42 C.F.R.] § 424.535(c);
(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program. 

42 C.F.R. §§ 422.2, 423.100.  CMS considers the following factors when deciding whether a Petitioner’s underlying conduct is detrimental to the best interests of the Medicare program:  

(A) The seriousness of the conduct underlying the . . . revocation;
(B) The degree to which the . . . conduct could affect the integrity of the [Medicare/Part D] program;
(C) Any other evidence that CMS deems relevant to its determination . . . .

Id.

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

1. Summary Judgment is appropriate.

Summary judgment is appropriate if “the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010) (citations omitted).  The moving party must show that there are no genuine issues of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Id.  If the moving party meets its initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial . . . .’”  Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).  “To defeat an adequately supported summary judgment motion, the non-moving party

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may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab., DAB No. 2300 at 3 (citations omitted).  To determine whether there are genuine issues of material fact for hearing, an administrative law judge must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  Id.

There is no genuine dispute as to any material fact in this case.  CMS may place an individual on the preclusion list if the following conditions are met:  1) the individual’s Medicare privileges are revoked; 2) the individual is under a re-enrollment bar; and 3) CMS determines that the conduct that led to the revocation is detrimental to the best interests of the Medicare program.  Undisputed evidence demonstrates the existence of the required factors.  Novitas’ August 15, 2017 initial determination, which Petitioner did not appeal, revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(2) and placed him under a re-enrollment bar.  CMS Ex. 4.  The reconsidered determination upholding preclusion articulates CMS’s reasons for concluding that Petitioner’s underlying conduct was detrimental to the best interests of the Medicare program.  Docket Entry 1a in DAB E-File.  These are the sole material facts on which the preclusion action depends. 

Petitioner interposes the following arguments:  (1) that his Medicare privileges were reinstated by the IG before his placement on the preclusion list took effect; (2) that CMS lacked a legal basis to place him on the preclusion list based on its failure to satisfy the elements under 42 C.F.R §§ 422.2 and 423.100; and (3) that the conduct underlying his revocation was not, and is not, detrimental to the best interest of the Medicare program because Petitioner has successfully completed the conditions of his probation and has fully rehabilitated from his substance abuse.  P. Br.

Petitioner’s first and second arguments raise purely legal issues which are properly addressed on summary judgment.  Petitioner’s third argument raises mixed issues of fact and law.  Nevertheless, for purposes of ruling on the CMS’s motion for summary judgment, I have accepted as true Petitioner’s representations regarding his rehabilitation and sobriety.  Even accepting these factual representations as true, CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate.

2. CMS had a legal basis to add Petitioner to the preclusion list on August 1, 2018, effective January 1, 2019, pursuant to 42 C.F.R. §§ 422.2 and 423.100.

1. As of January 1, 2019, the effective date of Petitioner’s placement on the preclusion list, Petitioner’s Medicare billing privileges were revoked under 42 C.F.R. § 424.535(a)(2) and Petitioner was subject to a three-year re-enrollment bar under 42 C.F.R. § 424.535(c).

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As described above, CMS, through its contractor Novitas, revoked Petitioner’s Medicare enrollment and billing privileges, effective July 20, 2017.  CMS Ex. 4 at 1.  Novitas revoked Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(2) because the IG had excluded Petitioner from participating in Medicare and other federal health care programs as permitted by section 1128(b)(4) of the Act.  Concurrent with the revocation, Novitas imposed a three-year re-enrollment bar.9   Id. at 2.

Petitioner did not appeal the revocation determination.  That determination is therefore final and no longer subject to review by an administrative law judge.  42 C.F.R. § 498.20(b); see generally Haissam Elzaim, M.D., et al., DAB No. 2501 at 4-5 (2013) (stating that an initial determination to revoke a supplier’s billing privileges becomes binding “[w]ithout a reconsidered determination to provide a basis for further review”); see also Hiva Vakil, M.D., DAB No. 2460 at 5 (2012); Rollington Ferguson, M.D., DAB No. 2949 at 3 (2019).  Furthermore, the duration of the re-enrollment bar is not subject to administrative law judge review because it is not an initial determination described in 42 C.F.R. § 498.3(b).  Vijendra Dave, M.D., DAB No. 2672 at 10-11 (2016).

Notwithstanding CMS’s final determination to revoke Petitioner’s Medicare enrollment and impose a re-enrollment bar, Petitioner argues that CMS did not have a legal basis to include him on the preclusion list.  P. Br. at 3.  It is Petitioner’s position that, when the IG lifted his exclusion by letter dated September 10, 2018, the revocation of his Medicare enrollment was no longer in effect.  This is incorrect.

Petitioner erroneously assumes that, because CMS revoked his Medicare enrollment under 42 C.F.R. § 424.535(a)(2), based on the IG’s exclusion action, the revocation would end when the exclusion ended.  However, an IG exclusion under section 1128 of the Act and a CMS revocation under 42 C.F.R. § 424.535 are separate and distinct enforcement tools, each with its own requirements and consequences.  See Fady Fayad, M.D., DAB No. 2266 at 12 (2009), aff’d, Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011) (citing Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 13 (2009)); Robert Tomlinson, DAB No. 2916 at 9 (2018), aff’d, Tomlinson v. Azar, No. 5:19-cv-05114, 20 WL376657 (W.D. Ark. Jan. 23, 2020);10  compare Act § 1128 (42 U.S.C. § 1320a-7) with Act § 1866(j) (42 U.S.C. § 1395cc(j)).

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It is true that the IG exclusion was a necessary predicate for CMS to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(2).  However, once CMS revoked Petitioner’s enrollment, the duration of the revocation was governed by the regulations at 42 C.F.R. § 424.535, not the IG regulations in 42 C.F.R. part 1001.  Section 424.535(c) is clear on this point:  “If a . . . supplier . . . has their billing privileges revoked, they are barred from participating in the Medicare program from the date of the revocation until the end of the re-enrollment bar.”  Consistent with this view, the reinstatement letter from the IG states “[w]e recommend that you contact the Medicare carrier to determine your options for participating in that program.”  CMS Ex. 5.  The IG’s letter in no way suggests that re-enrollment is automatic.

For these reasons, I find, as a matter of law, that at the time CMS placed Petitioner on the preclusion list, Petitioner’s Medicare enrollment was revoked and he remained under a re‑enrollment bar until at least September 14, 2020.  Accordingly, I find that the first two requirements of 42 C.F.R. §§ 422.2 and 423.100 are satisfied.  In the following section, I discuss why I uphold CMS’s determination that Petitioner’s conduct that led to the revocation is detrimental to the best interests of the Medicare program and its beneficiaries.

2. CMS acted within its discretion to determine that Petitioner’s underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program and its beneficiaries.

CMS determined the conduct that led to Petitioner’s revocation was detrimental to the best interests of the Medicare program and its beneficiaries.  In making that determination, CMS considered the factors outlined in 42 C.F.R. §§ 422.2 and 423.100.

In its reconsidered determination, CMS explained: 

Here, CMS revoked [Petitioner’s] Medicare billing privileges under § 424.535(a)(2), as he was excluded from the Medicare program by OIG.  [Petitioner] remained excluded from participation in Federal Health care programs on August 1, 2018, when CMS decided to include him on the preclusion list.  The revocation of [Petitioner’s] Medicare billing privileges indicates an inherent determination of detriment to the best interest to the Medicare program.  [Petitioner] did not possess the requisite State licensure to practice Medicine, which CMS considers to be of serious nature.  Although [Petitioner] claims to have recovered from his dependency on alcohol, CMS considers his actions that led to his conviction for a DUI, and, his dependency on alcohol, to be of a serious nature, due to its potential impact on Medicare patients.  The safety of Medicare patients is an utmost priority to CMS. A supplier with a history such as [Petitioner’s] poses a risk to Medicare patients and therefore, severely

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affects the integrity of the Medicare program.  Additionally, on August 1, 2018, when CMS included [Petitioner] on the preclusion list, he remained excluded by the OIG.  Consequently, CMS finds that the underlying conduct that led to [Petitioner’s] exclusion from Medicare, resulting in the revocation of his Medicare billing privileges, is detrimental to the best interests of the Medicare program.  As a result, [Petitioner] will remain on the CMS preclusion list effective January 1, 2019.

Docket Entry 1a in DAB E-File at 4.

As this discussion demonstrates, CMS considered the seriousness of the conduct underlying Petitioner’s revocation, the degree to which Petitioner’s conduct could affect the integrity of the Medicare program, and other evidence that CMS deemed relevant to its determination.  42 C.F.R. §§ 422.2 and 423.100.  CMS considered the suspension of Petitioner’s medical license in Virginia to be of a serious nature.  Id.  CMS also found that Petitioner’s revocation indicated “an inherent determination of detriment to the best interests of the Medicare program.”  Id.  Further, CMS found that Petitioner’s actions underlying his DUI conviction, as well as his dependency on alcohol, had an impact on the safety of Medicare patients.  Id.  In CMS’s view, Petitioner’s actions called into question whether he can be trusted not to put his patients’ safety at risk.  Id.  Moreover, CMS deemed it relevant that Petitioner remained excluded by the IG at the time CMS included him on the preclusion list on August 1, 2018.  Id.

Petitioner argues that it was unreasonable for CMS to consider his conduct, “although notably improper, [as rising] to the degree of ‘[a]ffecting the integrity of the Medicare program.’”  P. Br. at 8-9.  Petitioner maintains that, “without undermining the severity of [his] actions . . . [his] conduct occurred over three (3) years earlier, he took over three (3) years of remedial measures, the incident was isolated, and at the time of [his] placement on the preclusion list, [he] 1) was attending Alcoholics Anonymous meetings, 2) was enrolled in CPH,^[11 ^] 3) was undergoing routine urine tests for alcohol through CPH . . . 4) went back into the medical practice, with his license having been reinstated in New York[,] 5) had positive remarks from his program supervisors at CPH, 6) received psychological counseling, and 7) had all Oklahoma charges expunged.”  Id. at 9.

I accept Petitioner’s representations as true for purposes of ruling on CMS’s motion for summary judgment.  However, it is not clear to me that, in reviewing CMS’s decision to place a provider or supplier on the preclusion list, I am authorized to evaluate how CMS applied the factors enumerated in 42 C.F.R. §§ 422.2 and 423.100.  In other contexts,

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appellate decisions of the DAB have emphasized that, where the regulations grant CMS discretion to determine that a provider or supplier's underlying conduct is detrimental to Medicare, I may not substitute my own determination for that of CMS.  See Brian K. Ellefsen, DO, DAB No. 2626 at 7 (2015); see also Pa. Physicians, P.C., DAB No. 2980 at 13 (2019).  Yet, even if I were authorized to review CMS’s conclusion that Petitioner’s conduct was detrimental to Medicare and its beneficiaries, I would not find that CMS erred.  This is because the record contains evidence of additional facts – not disputed by Petitioner – that support CMS’s conclusion.

CMS concluded that Petitioner’s license suspension in Virginia raised serious concerns.  The Virginia Board of Medicine suspended Petitioner’s license to practice medicine in Virginia based on the conduct that led Oklahoma authorities to charge Petitioner with DUI and drug possession in 2016, among other issues.  CMS Ex. 1.  In its disciplinary order, the Virginia Board made findings of fact concerning Petitioner’s behavior.12   Id. at 1-7.  Based on those facts, the Virginia Board concluded that Petitioner had committed unprofessional conduct in violation of Virginia Code § 54.1-2915A.  Id. at 7.  For example, the Virginia Board concluded that Petitioner conducted his practice “in such a manner as to be a danger to the health and welfare of his patients or to the public” in violation of Virginia Code § 54.1-2915A(13).  Id.  This conclusion was based on the following facts:  

On or about October 6, 2015, approximately three (3) weeks after beginning employment as a locum tenens general surgeon at a hospital in Oklahoma, [Petitioner] exhibited signs and symptoms of impairment when arriving late to the hospital for a scheduled colonoscopy, to include slurred speech, an unsteady gait, and difficulty logging onto his computer, as well as creating an incomplete and illegible pre-surgical patient progress note.  After meeting with [Petitioner] that morning, the hospital clinical director prohibited [Petitioner] from performing the procedure, despite [Petitioner’s] assurances that he had no history of medical issues, was not taking any medications and was well-rested, and that he intended to proceed with the colonoscopy.  [Petitioner] was removed from the schedule that day and then left the hospital.  Shortly thereafter, he was contacted and informed that his services were “no longer requested.”

Id. at 2.

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The Virginia Board further concluded that Petitioner was unable to practice medicine with reasonable skill or safety because of substance abuse, in violation of Virginia Code § 54.1‑2915A(14).  Id. at 2, 7.  The factual basis for this conclusion included the following:  

On his way home from the hospital on the morning of October 6, 2015, after the incident [described above, Petitioner] was arrested and later charged with one (1) felony count of unlawful possession of controlled drugs (oxycodone, C-II); one (1) misdemeanor count of unlawful possession of controlled drugs (alprazolam, C-IV); one (1) misdemeanor count of driving under the influence (“DUI”) of drugs and alcohol; and one (1) misdemeanor count of threatening an act of violence.  Immediately preceding his arrest, an Owasso, Oklahoma police officer stopped [Petitioner] after he failed to obey a stop sign, turning left at an intersection from the right turn lane.  The arresting officer noted [Petitioner’s] slurred speech and apparent confusion while trying to locate insurance and registration documents.  After failing field sobriety tests, [Petitioner] was placed under arrest for DUI, and he refused the implied consent (blood) test.  [Petitioner] was observed to remove a bottle labeled “pain reliever” from his pocket, which was found to contain #6 alprazolam and #11-1/2 oxycodone.  A subsequent police search of [Petitioner’s] vehicle revealed another bottle labeled “Motrin PM” which was found to contain #10 Adderall XR (C-II), as well as a bottle of Fireball cinnamon whiskey that had been opened and which contained only a small amount of residue in the bottom of it.

Id. at 2-3.

The Virginia Board also found that on or about November 6, 2013, Petitioner provided fraudulent information in his Virginia license application in violation of Virginia Code § 54.1‑2915A(1).  Id. at 5, 7.  Specifically, Petitioner responded “no” when asked on the application whether he had “been placed on a corrective action plan, placed on probation or been dismissed or suspended or requested to withdraw from any professional school, training program, hospital. . . .”  Id. at 5.  However, an associate program director of the general surgery residency program at Boston Medical Center stated in a questionnaire response that Petitioner had been terminated from the residency program in June 2009.  Id.  Further, Petitioner was placed on probation in 2011, while a surgical resident at Saint Barnabas Medical Center in Livingston, New Jersey.  Id.  The Board found that the Saint Barnabas residency program placed Petitioner on probation based on –

“a series of continuing performance deficiencies including, but not limited to, medical knowledge (e.g., preparedness and presentations at weekly QI conferences, poor overall knowledge base, lack of

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attention to details and failure to demonstrate continued performance improvement despite multiple counseling sessions), professionalism (e.g., tardiness, distracted behavior, organizational skills, leadership skills, student complaints), patient care (e.g., not functioning at the level of a PGY-4, poor attention to detail, prioritization, clinical operative skills) and communications (e.g., lack of responding and completing tasks in a timely fashion, failure to demonstrate follow through, failure to complete assigned tasks and a disregard to the time tables and their consequences).” 

Id. 5-6.  In addition, the Virginia Board found that Petitioner was untruthful when he answered “no” to an application question that inquired, “Do you have a physical disease, mental disorder, or any condition, which could affect your performance of professional duties?”  Id. at 6.  The Board concluded this answer was untruthful because Petitioner stated in an email communication with a Board investigator “that he had been prescribed clonazepam and Prozac since 1993 for anxiety, and that at the time of the incident detailed [above] while on hospital duty, he had consumed an inappropriate dosage of ‘[his] anti-anxiety medicine’ because he had failed to obtain psychiatric treatment to appropriately adjust his medications.”  Id.  In summary, the Virginia Board’s findings and conclusions, which Petitioner did not contest, raise many concerns about Petitioner’s ability to practice safely and to deal honestly with government authorities, which could reasonably lead CMS to conclude that Petitioner’s conduct was detrimental to Medicare and its beneficiaries.

I acknowledge that the conduct for which Petitioner was arrested and for which his Virginia medical license was suspended occurred in the past and I accept Petitioner’s representations that he has devoted significant efforts to rehabilitation.  I also understand that he received positive feedback during his probationary period and has undergone psychological evaluations.  Yet, even if I accept Petitioner’s arguments that he is now rehabilitated and that his underlying conduct “does not define him, [or] his ability to practice in the field of medicine,” I do not find that Petitioner’s current state of recovery is a basis to conclude that, at the time CMS placed him on the preclusion list, it was unreasonable to find that Petitioner’s conduct underlying the revocation was detrimental to the Medicare program and its beneficiaries.

Moreover, to the extent Petitioner is arguing that placing him on the preclusion list is inequitable because he is fully rehabilitated, or because the IG recognized his rehabilitation efforts and reinstated his Medicare eligibility because of it, I am not authorized to remove Petitioner from the preclusion list based on equitable considerations.  See US Ultrasound, DAB No. 2302 at 8 (2010). 

For all these reasons, CMS was legally authorized to add Petitioner to the preclusion list on August 1, 2018, and for the inclusion to take effect on January 1, 2019.  I have no authority to change CMS’s determination to include a supplier on the preclusion list so long as CMS

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had a legal basis to do so.  I note that, because Petitioner’s re-enrollment bar has now expired, Petitioner may be eligible to apply for re-enrollment as a Medicare supplier as provided in 42 C.F.R § 424.535(d) and to be removed from the preclusion list.

V.       Conclusion

For the reasons explained above, I affirm that CMS had a legal basis to include Petitioner on its preclusion list.

1. The Provider Enrollment and Oversight Group is a component of CMS itself, not an administrative contractor.
• back to note 1
2. Petitioner admits that his Virginia medical license was suspended and that he was arrested for DUI in Oklahoma.   See CMS Ex. 9 at 1; see also Petitioner’s Pre‑Hearing Brief (P. Br.) at 4.   Regarding the criminal charges, Petitioner further represents that the state court in Oklahoma “issued an Order of Expungement of all charges on April 23, 2018.”   CMS Ex. 9 at 2.
• back to note 2
3. Petitioner states, incorrectly, that his exclusion was based on his “voluntary non‑renewal of his New York medical license.”   P. Br. at 4.   However, the exclusion notice states unequivocally that the action is based on the suspension of Petitioner’s Virginia medical license.   CMS Ex. 10.
• back to note 3
4. By letter dated September 10, 2018, the IG reinstated Petitioner’s eligibility to participate as a provider of services covered by Medicare.   CMS Ex. 5.   The effect of this letter was to lift the exclusion imposed by the IG.
• back to note 4
5. Petitioner’s reconsideration request was dated March 14, 2019.   See CMS Ex. 8 at 1.   Although the reconsideration request was submitted more than 60 days after the date of the initial determination, CMS found that Petitioner had good cause for the late filing.   Docket Entry #1a in DAB E-File.
• back to note 5
6. Petitioner did not mark his exhibits as directed in my Prehearing Order.   See Prehearing Order ¶ 5.c.
• back to note 6
7. CMS amended 42 C.F.R. part 498 to add sections 498.3(b)(20) and 498.5(n) (authorizing providers and suppliers to appeal their inclusion on the preclusion list) effective June 15, 2018.   83 Fed. Reg. 16,440, 16,757 (Apr. 16, 2018).
• back to note 7
8. Effective November 4, 2019, CMS increased the maximum re-enrollment bar from 3 to 10 years, and up to 20 years for a second revocation.   84 Fed. Reg. 47,794, 47,826, 47,855 (Sept. 10, 2019).
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9. CMS mailed Petitioner its revocation initial determination letter on August 15, 2017.   Therefore, the re-enrollment bar became effective on September 14, 2017, and would expire three years from that date.   CMS Ex. 4 at 2.
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10. The Tomlinson decision held explicitly that the IG’s decision to reinstate an individual following exclusion does not bind CMS to reinstate the individual’s Medicare enrollment.   DAB No. 2916 at 9.
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11. CPH is an abbreviation for the Committee for Physician Health, an organization within the Medical Society of the State of New York.   P. Br. at 4.
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12. Despite being provided notice of the Virginia Board’s disciplinary hearing, Petitioner did not appear and the hearing proceeded in his absence.   CMS Ex. 1 at 1-2.   Further, the Board’s order informed Petitioner of his right to appeal.   Id. at 8.   As far as the record reveals, Petitioner did not appeal.   Accordingly, I treat the Board’s order as final.
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