Alphonso Benton, M.D., DAB CR5410 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through its Medicare administrative contractor, Noridian Healthcare Solutions (Noridian), revoked the Medicare enrollment and billing privileges of Petitioner, Alphonso Benton, M.D. (Dr. Benton), pursuant to 42 C.F.R. § 424.535(a)(1) because the Medical Board of California (Medical Board) issued an order dated May 3, 2017, directing Dr. Benton to cease practicing medicine.  Because Dr. Benton’s medical license was suspended, I affirm CMS’s revocation of Dr. Benton’s Medicare billing privileges.  I set the effective date of the revocation to May 6, 2017, the date the Medical Board’s order became effective.

I. Background and Procedural History

Dr. Benton is a physician who is licensed to practice medicine in California.  CMS Exhibit (Ex.) 2 at 3.  On January 5, 2017, the Medical Board of California entered into a Stipulated Settlement and Disciplinary Order (Settlement Order) with Dr. Benton.  Id. at 1.  The Settlement Order required Dr. Benton, among other things, to enroll in a clinical training or educational program “equivalent to the Physician Assessment and

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Clinical Education Program (PACE)” within 60 calendar days of the effective date of the order, February 3, 2017.  Id. at 1, 6.  The Settlement Order provided that, if Dr. Benton failed to “enroll, participate in, or successfully complete the clinical training program within the designated time period,” he would receive notification from the Medical Board to cease practice.  Id. at 7.

By order issued May 3, 2017, the Medical Board directed Dr. Benton to cease practice (Cease Practice Order) within three calendar days, based on the Board’s conclusion that Dr. Benton failed to enroll in the required PACE-equivalent course.  CMS Ex. 3.  The Cease Practice Order provided that Dr. Benton was “prohibited from engaging in the practice of medicine” and that he may not resume the practice of medicine until the Medical Board verified his enrollment in a PACE‑equivalent course.  Id.  By letter dated May 5, 2017, Noridian notified Dr. Benton that his Medicare billing privileges were revoked, effective May 3, 2017.  CMS Ex. 4 at 1.  In the revocation notice, Noridian explained that Dr. Benton’s Medicare enrollment and billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(1) because Dr. Benton was not in compliance with Medicare requirements due to the Cease Practice Order.  Id.

In an action dated May 12, 2017, the Medical Board terminated the Cease Practice Order, finding that Dr. Benton had enrolled in the required PACE‑equivalent course.  CMS Ex. 6; see also CMS Ex. 5 (May 8, 2017 notice from the UC San Diego PACE Program regarding Dr. Benton’s enrollment).  In a letter dated May 12, 2017, Dr. Benton asked Noridian to reinstate his Medicare billing privileges.  CMS Ex. 7.  Dr. Benton’s letter to Noridian explained that he first became aware that his enrollment in the PACE program was incomplete when he received the Cease Practice Order.  Id.  In a letter dated July 13, 2017, Noridian informed Dr. Benton that it was rejecting what Noridian characterized as Dr. Benton’s Corrective Action Plan (CAP).  CMS Ex. 8.  Noridian explained that Dr. Benton was out of compliance with Medicare requirements, within the meaning of 42 C.F.R. § 424.530(a)(1), because the Medical Board’s Cease Practice Order forbade him to practice medicine from “May 1, 2017 to May 12, 2017.”  Id.

Dr. Benton submitted a request for an administrative law judge hearing and the request was docketed as Docket No. C-17-971.  On September 8, 2017, the administrative law judge to whom the case was assigned received a joint motion for remand from the parties and, on September 18, 2017, he remanded the case to CMS.  CMS Ex. 10.

In correspondence dated October 25, 2017, CMS, acting through its Provider Enrollment & Oversight Group,1 notified Dr. Benton that it was reopening and revising Noridian’s prior action pursuant to 42 C.F.R. §§ 498.30 and 498.32.  CMS Ex. 1 at 1.  On reopening, CMS found that Noridian correctly revoked Dr. Benton’s Medicare billing

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privileges because he was out of compliance with the enrollment requirements at 42 C.F.R. § 424.535(a)(1) when the Medical Board ordered him to cease practicing medicine on May 3, 2017.  Id. at 5.

CMS’s October 25, 2017 reconsidered determination explained that Noridian’s unfavorable decision letter, dated July 13, 2017, incorrectly cited 42 C.F.R. § 424.530(a)(1) as the basis for revocation, whereas it should have cited 42 C.F.R. § 424.535(a)(1).  CMS Ex. 1 at 3 n.3; see also CMS Ex. 8.  Section 424.530(a)(1) authorizes CMS to deny the enrollment application of a provider or supplier that fails to comply with Medicare enrollment requirements.  By contrast, section 424.535(a)(1) authorizes CMS to revoke an existing enrollment on parallel grounds.  CMS also explained that, while Noridian had treated Dr. Benton’s request for reinstatement as a CAP, CMS would treat it as a request for reconsideration.  CMS Ex. 1 at 1 n.1.

Dr. Benton again timely submitted a hearing request on October 25, 2017.  I issued an Acknowledgement and Pre‑Hearing Order (Pre‑Hearing Order) establishing deadlines for the submission of pre‑hearing exchanges.  On December 5, 2017, Dr. Benton submitted a series of documents, including a brief (P. Br.).  Dr. Benton’s remaining submissions are not labeled or exhibited as required by my Pre‑Hearing Order, nor does Dr. Benton’s brief explain their purpose beyond serving as general evidence of his arguments.

In accordance with my Order, CMS filed its pre‑hearing exchange on December 6, 2017, consisting of a brief (CMS Br.) in support of summary judgment and eleven exhibits (CMS Exs. 1‑11).  CMS did not submit the written direct testimony of any witnesses nor did CMS object to any of Dr. Benton’s December 5, 2017 submissions. 

Dr. Benton did not comply with my Pre‑Hearing Order in that he submitted his pre‑hearing exchange before CMS submitted its exchange.  For that reason, he did not have the opportunity to respond to CMS’s submission.  Therefore, I issued an order giving Dr. Benton time to respond or to notify me that he did not intend to file further submissions.  I informed Dr. Benton that I would close the record and issue a decision if he notified me that he did not intend to submit anything else.  On December 18, 2017, Dr. Benton notified me that he did not intend to file additional documents.

Neither party objected to the exhibits or submissions offered by the opposing party.  Therefore, in the absence of objection, I admit CMS Exs. 1‑11 and Dr. Benton’s submissions into the record.  There is no need for me to hold a hearing because neither party submitted the written direct testimony of any witnesses in accordance with my Pre‑Hearing Order.  Thus, I issue a decision based upon the written record, without regard to whether the standards for summary judgment are met.

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II. Issue

Whether CMS had a basis to revoke Dr. Benton’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(1).

III. Jurisdiction

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

IV. Discussion

A. Statutory and Regulatory Background

The Act authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

The Secretary has delegated authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or its administrative contractor may revoke an enrolled supplier’s Medicare enrollment and billing privileges for any of the reasons listed in 42 C.F.R § 424.535.  Pursuant to 42 C.F.R. § 424.535(a)(1), CMS may revoke a supplier’s enrollment and billing privileges if the supplier is determined not to be in compliance with enrollment requirements found at 42 C.F.R. § 424, subpart P.  Relevant here, suppliers have an obligation to maintain “[c]ompliance with Federal and State licensure, certification, and regulatory requirements, as required, based on the type of services or supplies the provider or supplier type will furnish and bill Medicare.”  42 C.F.R. § 424.516(a)(2).

If CMS revokes a supplier’s billing privileges, the revocation generally becomes effective 30 days after CMS or one of its contractors mails the revocation notice to the supplier, subject to some exceptions.  42 C.F.R. § 424.535(g).  However, where a revocation is based on a license suspension or revocation, the revocation is effective as of the date of the license suspension or revocation.  Id.  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).

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

1. CMS had a legal basis to revoke Dr. Benton’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(1) because Dr. Benton was prohibited from practicing medicine from on or about May 6, 2017 to May 12, 2017.

Pursuant to 42 C.F.R. § 424.535(a)(1), CMS or its contractor may revoke a Medicare supplier’s enrollment and billing privileges if the supplier no longer meets the enrollment requirements for a supplier of its type and the supplier has not submitted a CAP that has been accepted by CMS.  See Akram A. Ismail, M.D., DAB No. 2429 at 5 (2011).  To comply with applicable enrollment requirements within the meaning of 42 C.F.R. § 424.535(a)(1), suppliers must also comply with the additional requirements specified in 42 C.F.R. § 424.516.  Id.  In relevant part, section 424.516(a)(2) requires that a supplier comply with “Federal and State licensure, certification, and regulatory requirements . . . .”  A physician who is not “legally authorized to practice medicine” does not meet the regulatory requirements in section 424.516(a)(2).  Id. at 6 (cross-referencing the provisions of 42 C.F.R. § 410.20(b)).

Dr. Benton appears to argue that his license to practice medicine was never suspended.  He contends that the Cease Practice Order never went into effect because he provided the Medical Board proof that he had enrolled in a PACE-equivalent program on “the next business day” after he received the order.  P. Br. at 3.  I reject this argument because it is contradicted by the plain language of the Cease Practice Order and the termination order.  The Medical Board’s Cease Practice Order required Dr. Benton to cease practicing medicine three calendar days after May 3, 2017.  CMS Ex. 3.  The Cease Practice Order further stated that the order would remain in effect until the Medical Board verified Dr. Benton’s enrollment in the required program.  Id.  The Medical Board did not confirm that it had verified Dr. Benton’s compliance until it terminated the Cease Practice Order on May 12, 2017.  CMS Ex. 6.  I therefore find that, as a result of the Cease Practice Order, Dr. Benton was not legally authorized to practice medicine in California from at least on or about May 6, 2017 to May 12, 2017.  Thus, CMS had a basis to revoke Dr. Benton’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(1).

2. The reinstatement of Dr. Benton’s medical license does not remove the basis for revocation.

Dr. Benton points out that his license was reinstated on May 12, 2017, shortly after the Medical Board issued the Cease Practice Order.  P. Br. at 2‑3.  While it is true that the Medical Board terminated the Cease Practice Order and reinstated Dr. Benton’s medical license, this does not remove the basis for revocation.  As the appellate panel stated in

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Ismail, CMS may revoke a supplier’s Medicare billing privileges based on a license suspension of any length:

CMS may determine a supplier is out of compliance with the Medicare enrollment requirements at any time.  See 71 Fed. Reg. at 20,761(“[A] provider or supplier's enrollment and billing privileges may be revoked if at any time, it is determined to be out of compliance with the Medicare enrollment requirements outlined in subpart P . . . .” (emphasis added)).  Thus, the [appropriate inquiry was] the immediate effect of [the supplier’s] suspension rather than the possibility that the suspension may be lifted at some point.

Ismail, DAB No. 2429at 8; see also Angela R. Styles, M.D., DAB No. 2882 at 6 (2018) (explaining that the Ismail decision “concluded that the revocation was lawful because the suspension left [the supplier] without legal authority to practice medicine, regardless of whether the suspension was temporary or permanent.”).  For the reasons explained in the previous section of this decision, I have concluded that Dr. Benton was not legally authorized to practice medicine for a period of time during May 2017.  The fact that his license suspension was brief does not alter the outcome.  Nor do Dr. Benton’s remaining arguments provide a basis to overturn CMS’s revocation determination.

3. I have no authority to review Noridian’s rejection of Dr. Benton’s CAP.

Dr. Benton argues that Noridian violated the regulations because it did not give him an opportunity to submit a CAP.  P. Br. at 2.  He further argues that, because he perfected his enrollment in the PACE-equivalent program, Noridian should have determined that he was in compliance with Medicare requirements and withdrawn the revocation of his Medicare billing privileges.  Id.

As to the first point, I disagree that Dr. Benton did not have an opportunity to submit a CAP.  Noridian’s May 5, 2017 notice letter stated:

If you believe that you are able to correct the deficiencies and establish your eligibility to participate in the Medicare program, and if this revocation is based in whole or in part on § 424.535(a)(1), you may submit a corrective action plan (CAP) within 30 calendar days after the postmark of this letter. . . .  The CAP should provide evidence that you are in compliance with Medicare requirements.  The CAP request

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must be signed and dated by the authorized or delegated official within the entity.

CMS Ex. 4 at 1. 

On or about May 12, 2017, Dr. Benton submitted a letter to Noridian asking for “reversal of the termination [he] received” and requesting that his Medicare billing privileges be reinstated because the Cease Practice Order had been lifted.  CMS Ex. 7.  Noridian accepted Dr. Benton’s May 12 letter as a CAP.3  CMS Ex. 8.  In a letter dated July 13, 2017, Noridian informed Dr. Benton that it had rejected his CAP because Dr. Benton was “not allowed to practice medicine from May 1, 2017 [sic]4 through May 12, 2017.”  Id.  As this correspondence demonstrates, Noridian in fact notified Dr. Benton of his right to submit a CAP and treated Dr. Benton’s May 12 letter as his CAP.

To the extent Dr. Benton’s second argument is that Noridian improperly rejected his CAP, I have no authority to consider it.  The regulations do not authorize administrative law judge review of CMS’s acceptance or rejection of a CAP.  See 42 C.F.R. § 405.809(b)(2) (“The refusal of CMS or its contractor to reinstate a provider or supplier’s billing privileges based on a corrective action plan is not an initial determination under part 498 of this chapter.”).  The decision to accept or reject a CAP is entirely within CMS’s discretion and I may not consider whether CMS, through Noridian, acted appropriately in its handling of Dr. Benton’s May 12, 2017 letter.  See, e.g., Conchita Jackson, M.D., DAB No. 2495 at 6 (2013) (“[T]he refusal by CMS or one of its contractors to reinstate a supplier after a correction attempt is not . . . an action that constitutes an initial determination subject to administrative appeal under section 498.3(b)”).  Further, the legal conclusion that an affected party may not request administrative law judge review of CMS’s action on a CAP bears significantly on

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Dr. Benton’s claim that he was misled into agreeing to a remand in Docket No. C-17-971, which I discuss in the following section of this decision.

4. Dr. Benton was not adversely affected by the prior remand of his hearing request, nor was he deprived of due process.

Dr. Benton objects to the circumstances that led the administrative law judge to remand the hearing request in Docket No. C-17-971 to CMS.  P. Br. at 4.  Dr. Benton characterizes these circumstances as “an [a]buse of [p]rocess.”  Id.  In summary, he contends that he was misled into agreeing to the remand, in part based on advice he claims to have received from the staff attorney assigned to assist the administrative law judge in that case.  Id.  I note that Dr. Benton’s account of the advice he received is unsubstantiated.  He presents no documentary evidence in support of his assertions, nor did he offer his own declaration under oath.  I therefore find no factual basis for Dr. Benton’s allegations.  However, even if I were to accept as true Dr. Benton’s contention that he was misled into agreeing to a remand in Docket No. C-17-971, I would conclude that he suffered no prejudice as a matter of law.  This is because, as I have explained above, there is no right to a hearing to challenge CMS’s or its contractor’s rejection of a CAP.

In the case docketed as C-17-971, Noridian did not issue a reconsidered determination; rather, it treated Dr. Benton’s letter of May 12, 2017, as a CAP and rejected it.  CMS Ex. 8.  Thus, in Docket No. C-17-971, had CMS moved to dismiss rather than requesting remand, the regulations would require that the hearing request be dismissed, thus extinguishing Dr. Benton’s appeal rights.  Instead, on remand, CMS reopened and revised Noridian’s action and issued a reconsidered determination, thus giving rise to Dr. Benton’s right to request review in the present case.5 See CMS Ex. 1.  The remand in Docket No. C-17-971 therefore protected and expanded Dr. Benton’s right to due process, rather than limiting or restricting that right.6

Dr. Benton additionally argues that he was deprived of due process because he lacked notice of the regulatory authority on which CMS relied to revoke his Medicare

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enrollment and billing privileges because the reconsidered determination CMS issued on reopening added a new regulatory basis for the revocation.  P. Br. at 4.  In particular, Dr. Benton objects to CMS’s reliance on 42 C.F.R. § 424.516, which Dr. Benton argues was not cited in Noridian’s initial determination of May 5, 2017, which cited only 42 C.F.R. § 424.535(a)(1).  Id.  This argument fails for two reasons.

First, CMS’s citation to 42 C.F.R. § 424.516 did not amount to a new basis for revocation.  As stated in 42 C.F.R. § 424.535(a)(1), CMS may revoke a supplier’s billing privileges if the supplier fails to comply with any Medicare enrollment requirement described in “Subpart P.”  Subpart P of 42 C.F.R. Part 424 includes all sections from 424.500 through 424.570.  Thus, the requirements specified in section 424.516 are incorporated by reference in section 424.535(a)(1).

Second, even if failure to comply with the enrollment requirements specified in 42 C.F.R. § 424.516 did constitute a new basis for revocation, CMS was authorized to add it when it reopened Noridian’s prior action and issued the reconsidered determination in this case.  Pursuant to 42 C.F.R. § 498.30, CMS has broad discretion to reopen an initial or reconsidered determination within 12 months after the date of the notice of the initial determination.  Upon reopening, CMS must provide a new notice letter that “specifies the conditions with respect to which the affected party fails to meet the requirements of law and regulations, and informs the party of its right to a hearing.”  42 C.F.R. § 498.32(a)(3).  CMS’s reconsidered determination on reopening, dated October 25, 2017, meets these requirements.  CMS provided Dr. Benton with further explanation as to why his billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(1).  Relevant here, the revised reconsidered determination explained that Dr. Benton failed to meet the licensure requirements specified at 42 C.F.R. § 424.516(a)(2).  CMS Ex. 1 at 4.  Thus, Dr. Benton received notice of CMS’s basis for revoking his billing privileges and was afforded ample opportunity to address all applicable regulatory requirements in the present proceeding.  Accordingly, he was not denied due process.

Finally, to the extent Dr. Benton’s arguments turn on his perception that he has been treated unfairly in these proceedings, such arguments are equitable in nature and therefore, I cannot consider them.  I have no authority to grant Petitioner equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).

5. The effective date of revocation of Dr. Benton’s Medicare enrollment and billing privileges is May 6, 2017.

As a final matter, Dr. Benton argues that CMS deprived him of due process by setting an incorrect effective date for the revocation of his billing privileges.  P. Br. at 3.  Dr. Benton contends that, pursuant to 42 C.F.R. § 424.535(g), his revocation should have been effective 30 days from the date of the initial determination, rather than on

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May 3, 2017, the date the Cease Practice Order was issued.  See P. Br. at 2-3; CMS Exs. 3, 4.  However, Petitioner overlooks that 42 C.F.R. § 424.535(g) includes an exception for revocations based on license suspension or revocation.  In instances of license suspension, CMS revokes the supplier’s billing privileges effective “with the date of . . . license suspension or revocation . . . .”  42 C.F.R. § 424.535(g).  Therefore, Dr. Benton is incorrect in asserting that the effective date of revocation should have been 30 days after May 5, 2017.  However, I conclude that CMS did err in setting the effective date of revocation.  The error occurred because, while the Cease Practice Order was issued May 3, 2017, it was not effective until three calendar dates later, or May 6, 2017.  CMS Ex. 3.  I therefore find that Dr. Benton’s Medicare billing privileges were revoked effective May 6, 2017.

V. Conclusion

For the forgoing reasons, I affirm CMS’s determination to revoke Dr. Benton’s Medicare enrollment and billing privileges.  However I modify the effective date of revocation to May 6, 2017.

1. The Provider Enrollment & Oversight Group is an office within CMS itself, and not an administrative contractor.
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2. My findings of fact and conclusions of law are set forth in italics and bold font.
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3. Only after Dr. Benton’s original hearing request was remanded and CMS reopened Noridian’s initial determination and issued a reconsidered determination did CMS explain that it was construing Dr. Benton’s May 12, 2017 letter as a request for a reconsidered determination.  CMS Ex. 1 at 1 n.1.
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4. Noridian indicated that Dr. Benton was ordered to cease practicing medicine on May 1, 2017; however, the record clearly indicates, and Dr. Benton does not dispute, that the Cease Practice Order was issued on May 3, 2017.  CMS Ex. 8 at 1; CMS Ex. 3 at 1.  It appears that Noridian made a typographical error.  CMS’s reconsidered determination correctly states that the Cease Practice Order was issued May 3, 2017.  CMS Ex. 1 at 1.  Accordingly, I conclude that the erroneous date represents harmless error.  Nevertheless, as I discuss in section 5, below, I find that while the Cease Practice Order was issued May 3, 2017, it was not effective until May 6, 2017.
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5. A supplier’s right to administrative law judge review flows from the reconsidered determination.  42 C.F.R. § 498.5(l)(2); see also Neb Group of Arizona LLC, DAB No. 2573 at 7 (2014).
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6. I note, in addition, that even if Dr. Benton had expressly objected to the prior remand, the regulations authorize the administrative law judge to remand a case to CMS at CMS’s request, without regard to whether the affected party consents to the remand.  Effective in 2008, CMS amended 42 C.F.R. § 498.78 by removing language that previously made the affected party’s consent a condition of remand.  See 72 Fed. Reg. 9479, 9486 (Mar. 2, 2007); see also 73 Fed. Reg. 36,448, 36,451 (June 27, 2008).
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