Jeremy R. Clark, DC, DAB CR5565 (2020)

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DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, revoked the Medicare enrollment and billing privileges of Jeremy R. Clark, DC (Dr. Clark or Petitioner) for certifying on a CMS-855I Medicare enrollment application that he had not been subject to a final adverse action even though the Illinois Department of Financial and Professional Regulation (IDFPR) suspended his chiropractic license for four days in 2016.  The CMS contractor barred Dr. Clark from re-enrollment for three years.  CMS subsequently notified Dr. Clark that it added his name to its preclusion list.  I affirm the revocation because Dr. Clark admitted that he incorrectly certified as true that he did not have a final adverse action.  Further, I affirm CMS's action to add Dr. Clark's name to the preclusion list because Dr. Clark did not contest that action.  Finally, I am unable to rule on Dr. Clark's request that I reduce the length of the re-enrollment bar because I do not have authority to review that issue.  However, given the nature of his brief suspension and Dr. Clark's mistaken belief that the suspension was not disciplinary in nature, CMS should consider reducing the length of the re-enrollment bar it imposed.

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I.  Case Background and Procedural History

Petitioner is a chiropractor who was enrolled to provide health care services to Medicare beneficiaries and receive reimbursement from the Medicare program.  CMS Exhibit (Ex.) 2 at 3.  In a July 11, 2019 initial determination, a CMS contractor revoked Petitioner's Medicare enrollment and billing privileges, effective August 10, 2019, for the following reason:

42 CFR § 424.535(a)(4) – False or Misleading Information

On your [CMS] 855 enrollment application, signed on April 15, 2019, you answered "no" in section three of the application indicating that you did not have any adverse legal history.  However, your Illinois chiropractic license was suspended from July 29, 2016 to August 2, 2016.  A license suspension is a final adverse action that requires reporting on the 855I application.

CMS Ex. 3 at 1.  The determination stated that the CMS contractor imposed a three-year re-enrollment bar beginning "30 days after the postmark of this letter."  CMS Ex. 3 at 2.

Petitioner timely requested reconsideration of his revocation from the Medicare program.  CMS Ex. 4.  Petitioner asserted that he did not list an adverse legal action on his enrollment application because he was not aware that his license was "technically suspended" since it was only suspended for a period of four days.  CMS Ex. 4.  Petitioner further asserted that he did not know his suspension was recorded and that had he known, he would have marked it down.  Finally, Petitioner stated that he is now aware "after checking the [Illinois] website that the suspension is actively recorded as such towards my license and [he] will continue to record it as an adverse legal action from this point forward."  CMS Ex. 4.

In an August 30, 2019 initial determination, CMS notified Petitioner that:

You are being added to the CMS preclusion list effective February 1, 2020, because your Medicare billing privileges have previously been revoked and you are currently under a reenrollment bar.  CMS has determined that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  This action is taken pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).

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CMS Ex. 5 at 1 (emphasis in original).  CMS described the effect of being on the preclusion list as follows:

[A]ny claims you submit for health care items or services furnished under a Medicare Advantage (MA) benefit may be denied.  Additionally, any pharmacy claims submitted for Medicare Part D drugs that you prescribe may be rejected or denied.  This means that your patients may not be able to receive coverage of their prescriptions using their Part D benefit at the pharmacy.

CMS Ex. 5 at 1.

Petitioner timely requested reconsideration of his inclusion on the preclusion list.  CMS Ex. 6.  He explained that he was suspended from the Medicare program because he was late on paying state income taxes.  CMS Ex. 6.  He again asserted that he was unaware that his license was suspended because the suspension period was only four days.  CMS Ex. 6.  Petitioner stated that his failure to list his suspension as an adverse action was "an oversight."  CMS Ex. 6.

On October 22, 2019, a CMS hearing officer issued a reconsidered determination upholding the revocation of Petitioner's billing privileges, which stated:

Dr. Clark's claim that he was not aware that his license was technically suspended does not absolve him of his duty to properly disclose his license suspension in his Medicare enrollment applications.  The onus was on Dr. Clark who signed and certified the Medicare enrollment application, to thoroughly read the provided instructions and ensure that all applicable final adverse legal actions were properly reported.  Although Dr. Clark maintains that he did not intend to conceal the suspension of his chiropractic license, the element of intent is not required for CMS to appropriately implement a revocation under 42 C.F.R. § 424.535(a)(4).

By signing and submitting the Medicare enrollment application on April 15, 2019, Dr. Clark certified as "true", misleading or false information, because he failed to disclose all final adverse actions against him, specifically the suspension of his chiropractic license by IDFPR for a period of four days from July 29 to August 2, 2016.  As a result, CMS finds that there was no error made by NGS in the

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revocation of Dr. Clark's Medicare billing privileges under § 424.535(a)(4).

CMS Ex. 7 at 3.

In the same reconsidered determination, the CMS hearing officer upheld Petitioner's placement on the preclusion list.  CMS Ex. 7 at 4-5.

On October 23, 2019, Petitioner timely filed a request for a hearing with the Civil Remedies Division (CRD).  On November 7, 2019, CRD acknowledged receipt of the hearing request and issued my Standing Prehearing Order.  In response, CMS filed a brief/motion for summary judgment, along with seven proposed exhibits (CMS Exs. 1-7).  CMS did not offer any witness testimony.  Petitioner filed a combined prehearing brief and response to CMS's motion for summary judgment (P. Br) with no exhibits.

II.  Decision on the Record

Petitioner did not object to CMS's proposed exhibits.  Therefore, I admit CMS Exs. 1-7 into the record.  See Standing Prehearing Order ¶ 10; CRD Procedures § 14(e).

The Standing Prehearing Order advised the parties that an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine a witness.  Standing Prehearing Order ¶¶ 11-13; CRD Procedures §§ 16(b), 19(b).  Neither party submitted written direct testimony.  Therefore, a hearing in this case is unnecessary and I decide this case based on the written record.  CRD Procedures § 19(d).

III.  Issues

1. Whether CMS had a legitimate basis to revoke Petitioner's billing privileges under 42 C.F.R. § 424.535(a)(4).
2. Whether CMS had a legitimate basis to place Petitioner on the preclusion list.  42 C.F.R. §§ 422.2 and 423.100.

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

My findings of fact and conclusions of law are set forth in italics and bold below.

1. From July 29, 2016 through August 2, 2016, the IDFPR suspended Petitioner's chiropractic license for failure to pay state income taxes.

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IDFPR suspended Petitioner's chiropractic license from July 29, 2016 to August 2, 2016 for "Failure to file and/or pay Illinois state income taxes."  IDFPR received a "Notice of tax deficiency release" on August 3, 2016.  CMS Ex. 1 at 2.

2. Petitioner indicated on an April 15, 2019 Medicare enrollment application that that he had not been subject to a final adverse legal action.

On April 26, 2019, CMS received an enrollment application from Petitioner.  CMS Ex. 2 at 1.  Petitioner submitted the application to enroll with another Medicare Administrative Contractor.  CMS Ex. 2 at 2.  Petitioner signed the certification statement attesting that he "read the contents of this application, and the information contained herein is true, correct, and complete."  CMS Ex. 2 at 21.  In section 3 of the application, entitled "FINAL ADVERSE LEGAL ACTIONS," Petitioner answered "no" to the question:  "Have you, under any current or former name, ever had a final adverse legal action listed above imposed against you?"  CMS Ex. 2 at 9.  That list included a current or past license suspension.  See CMS Ex. 2 at 9.

3. CMS had a legitimate basis to revoke Petitioner's enrollment and billing privileges in the Medicare program under 42 C.F.R. § 424.535(a)(4), because Petitioner certified as true misleading or false information about the suspension of his Illinois chiropractic license on an enrollment application filed to enroll in the Medicare program.

A chiropractor who participates in the Medicare program is considered to be a "supplier."  42 U.S.C. § 1395x(d), (r)(1).  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 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).  To maintain Medicare billing privileges, providers and suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time.  42 C.F.R. § 424.515.  When CMS notifies providers and suppliers that it is time to revalidate, the providers or suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS's notification.  42 C.F.R. § 424.515(a)(2).

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).

The regulations define the term "Final adverse action" to include a "[s]uspension . . . of a license to provide health care by any State licensing authority."  42 C.F.R. § 424.502.

In the present case, Petitioner filed an enrollment application with CMS for the purpose of enrolling with another Medicare Administrative Contractor.  CMS Ex. 2 at 2.  On that application, Petitioner stated that he had not been subject to a final adverse action.  CMS Ex. 2 at 9.  Petitioner signed the certification statement as to the accuracy of that answer.  CMS Ex. 2 at 21.

In this proceeding, Petitioner neither disputes that he was subject to a suspension nor that he indicated on the enrollment application that he had not been subject to a final adverse legal action.  P. Br. at 1-2; see Akram A. Ismail, M.D., DAB No. 2429 at 4 n.4, 11 (2011) (interpreting the regulatory definition of a final adverse action in the regulations to include any license suspension that went into effect).  Additionally, Petitioner concedes that this false representation is grounds for revocation under 42 C.F.R. § 424.535(a)(4).  P. Br. at 1.  However, Petitioner argues that the answer he gave on the enrollment application was an inadvertent error, not an attempt to deceive.  P. Br. at 1-2.  Petitioner further states that office staff assisted him in filling out the enrollment application, and he signed it after only a cursory review.  P. Br. at 2.

A supplier's signature on an enrollment application "attests that the information submitted is accurate . . . ."  42 C.F.R. § 424.510(d)(3).  The suspension of Petitioner's chiropractic license was germane to CMS's consideration of his enrollment application, and Petitioner should have ensured that the answer he gave to the question regarding final adverse actions was accurate.  Petitioner did not do this.  Therefore, he is subject to revocation, even if Petitioner did not intend to provide false or misleading information.  Mark Koch, D.O., DAB No. 2610 at 4-5 (2014).

4. I do not have jurisdiction to review the length of the re-enrollment bar imposed in this case.

Whenever CMS revokes a supplier's Medicare enrollment and billing privileges, CMS must also determine how long the supplier will be barred from seeking re-enrollment as a supplier.  The regulations at 42 C.F.R. § 424.535(c)(1) provide that "[t]he re-enrollment bar begins 30 days after CMS or its contractor mails notice of the revocation

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and lasts a minimum of 1 year, but not greater than 3 years, depending on the severity of the basis for revocation."2

The CMS contractor imposed a three-year re-enrollment bar on Petitioner; however, despite imposing a bar for the longest permissible period of time, the CMS contractor did not explain why the severity of the basis for revocation warranted such a long bar.  CMS Ex. 3 at 2.  It appears that the CMS contractor imposed a three-year re-enrollment bar because a CMS manual indicates that revocations based on § 424.535(a)(4) would generally warrant such a long period.  However, that manual also says that the three-year length is not binding on the CMS contractor and that "[i]t is crucial to note that every situation must and will be judged on its own merits, facts, and circumstances . . ."  Medicare Program Integrity Manual Ch. 15, § 15.27.2(D)(2) (emphasis omitted).

The CMS hearing officer did not expressly provide any analysis on this issue either.  CMS Ex. 7.  However, the CMS hearing officer indicated in her analysis related to the preclusion list that Petitioner's failure to accurately disclose his short suspension for briefly not paying his state taxes is detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 7 at 4-5.

For his part, Petitioner argues that CMS should not have imposed a three-year bar because the punishment "far exceeds the alleged wrong and serves no policy that benefits the Petitioner's patients or the medical community as a whole."  P. Br. at 2.  Petitioner explains that the Illinois budget crisis resulted in an inability to pay his state income taxes.  P. Br. at 2.  This led to his suspension from the Medicare program.  P. Br. at 2.  Petitioner states that once the tax liability was resolved, his license was reinstated within days after he received notice of the suspension.  P. Br. at 2.  Finally, Petitioner argues that a three-year bar will effectively put an end to his career and deprive a large percentage of his patients of needed services.  P. Br. at 2.

I am unable to consider Petitioner's arguments.  The length of the re-enrollment bar CMS imposes is not a determination subject to review by an administrative law judge.  Vijendra Dave, M.D., DAB No. 2672 at 9 (2016) ("our authority in a revocation case does not extend to reviewing the length of the reenrollment bar imposed by CMS.").  But, I recommend that CMS consider again whether it should impose the highest sanction possible (i.e., a three-year length re-enrollment bar) in this matter.  It is true that Petitioner is responsible for not accurately providing information on his enrollment application, and CMS has legitimately revoked his Medicare billing privileges due to that conduct.  However, it is quite possible that Petitioner did not believe that a brief suspension related to tax payments was disciplinary or a final adverse action.  The suspension appears to be nothing more than a state using its licensing authority to assist

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in collecting taxes.  In any event, it is up to CMS to decide if it wants to look into this issue again.

5. CMS had a legitimate basis to add Petitioner to the CMS preclusion list effective February 1, 2020.

On July 22, 2016, the Comprehensive Addiction and Recovery Act of 2016 (CARA) was enacted, and its stated purpose was to "authorize the Attorney General and Secretary of Health and Human Services to award grants to address the prescription opioid abuse and heroin use crisis, and for other purposes."  Pub. L. No. 114-198, 130 Stat. 695 (2016).  Section 704 of the CARA called on the Secretary of the Department of Health and Human Services (Secretary) to establish a program to prevent prescription drug abuse under Medicare Parts C and D.  130 Stat. at 742-52.  Among other things, Section 704 amended the Social Security Act (42 U.S.C. § 1395w-10(c)) to require the Secretary to implement a drug management program to limit access to controlled substances for at-risk Medicare beneficiaries.  Id. at 742-48.  Section 704(g) of the CARA directed the Secretary to promulgate regulations implementing the provisions of that section of the act.  Id. at 751-52.  Section 704(g)(1) directed that "amendments made by this section shall apply to prescription drug plans . . . for plan years beginning on or after July 1, 2019."  Id. at 751.  Additionally, Section 704(b)(2) of the CARA specifically amended the Social Security Act, at 42 U.S.C. § 1395w-104(c), to add a provision for a "utilization management tool to prevent drug abuse," and required that the Secretary conduct a "[r]etrospective utilization review to identify . . . providers of services or suppliers that may facilitate the abuse or diversion of frequently abused drugs by beneficiaries."  Id. at 748.

The Secretary issued a notice of proposed rulemaking to implement the CARA on November 28, 2017.  82 Fed. Reg. 56,336 (Nov. 28, 2017).  As relevant here, the Secretary proposed that an MA organization may not make payment for an item or service that is furnished by an individual or entity on a newly established preclusion list, and likewise, that a Part D plan sponsor must reject pharmacy claims for Part D drugs if the prescriber is on the same preclusion list.  Id. at 56,340.  The Secretary explained that individuals, entities, and prescribers would be placed on the preclusion list if certain requirements were all met, to include having engaged in conduct that is detrimental to the best interests of the Medicare program and its beneficiaries.  Id.  The Secretary "note[d] also that [his] proposal is of particular importance when considering the current nationwide opioid crisis" and that "the inclusion of problematic prescribers on the preclusion list could reduce the amount of opioids that are improperly or unnecessarily prescribed by persons who pose a heightened risk to the Part D program and Medicare beneficiaries."  Id. at 56,444.  With respect to the Part C program, the Secretary remarked that "we believe that an appropriate balance can be achieved between this program integrity objective and the desire to reduce the burden on the provider and supplier communities" and "propose[d] to utilize the same 'preclusion list' concept in MA that we

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are proposing for Part D."  Id. at 56,448.  The Secretary further remarked that "[w]e believe this approach would allow us to concentrate our efforts on preventing MA payment for items and services furnished by providers and suppliers that could pose an elevated risk to Medicare beneficiaries and the Trust Funds, an approach, as previously mentioned, similar to the risk-based process in § 424.518."  Id.  In his final rule, the Secretary established a January 1, 2019 effective date for the preclusion list, which is consistent with the CARA's mandate.  83 Fed. Reg. 16,440 (Apr. 16, 2018).

The regulation established a single list of individuals and entities for whom MA plans cannot provide reimbursement for items and services they provide, and for prescribers to whom Medicare Part D plans cannot provide reimbursement for any prescriptions the individuals write.  42 C.F.R. §§ 422.222 and 423.120(c)(6).

As applicable to this case, in order for CMS to include an individual, entity, or prescriber on its preclusion list, all of the following three 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.  In making this determination under this paragraph . . ., CMS considers the following factors:

(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. . .

42 C.F.R. §§ 422.2 and 423.100.

CMS added Petitioner to its preclusion list because Petitioner's Medicare billing privileges had been revoked, he was under a re-enrollment bar, and because CMS determined that the underlying conduct that led to his revocation was detrimental to the best interests of the Medicare program.  CMS Ex. 5 at 1.

In its reconsidered determination, CMS reasoned that "by providing false and misleading information to CMS, Dr. Clark's actions call into question his integrity in his continued relationship with CMS as a supplier of Medicare services."  CMS Ex. 7 at 4.  Additionally, CMS explained that Petitioner's failure to pay state income taxes on time indicates a "propensity to be indifferent towards his obligations to State authorities and

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his ability to follow applicable laws and regulations."  CMS Ex. 7 at 5.  Petitioner does not dispute his inclusion on the preclusion list in either his hearing request or his brief.

Petitioner's Medicare billing privileges were revoked effective August 10, 2019.  I have upheld that revocation in this decision.  Therefore, I uphold CMS's decision to include Petitioner on the preclusion list effective February 1, 2020.

VI.  Conclusion

I affirm CMS's revocation of Petitioner's Medicare enrollment and billing privileges the inclusion of Petitioner on the preclusion list.

1. I modify the case caption to add Petitioner's Doctor of Chiropractic (DC) degree and an additional Provider Transaction Access Number (PTAN).  See Centers for Medicare & and Medicaid Services' Exhibit 1 at 2 and Exhibit 3 at 1.
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2. The regulations have subsequently changed.  84 Fed. Reg. 47,794, 47,855 (Sept. 10, 2019).
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