Parth S. Bharill, M.D., DAB CR5958 (2021)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative contractor, revoked the Medicare enrollment and billing privileges of Parth S. Bharill, M.D. (Dr. Bharill or Petitioner) for noncompliance with enrollment requirements and failure to report an adverse legal action under 42 C.F.R. § 424.535(a)(1) and (a)(9).  Dr. Bharill disputes the reconsidered determination and timely requested a hearing.  Based on the evidence of record, I conclude that Dr. Bharill was not in compliance with enrollment requirements because his medical license was suspended.  Therefore, I affirm CMS’s determination to revoke Dr. Bharill’s Medicare enrollment and billing privileges, effective June 18, 2018.  I also affirm CMS’s determination to impose upon Dr. Bharill a three (3) year re enrollment bar.

I. Case Background and Procedural History

Petitioner is a physician who was enrolled to provide health care services to Medicare beneficiaries and receive reimbursement from the Medicare program.  On August 17, 2018, a CMS administrative contractor revoked Petitioner’s Medicare enrollment and

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billing privileges, effective June 18, 2018, based on violations of 42 C.F.R. § 424.535(a)(1) and (a)(9). The notice imposed a three-year re-enrollment bar beginning September 16, 2018.  Specifically, the administrative contractor determined that Petitioner was noncompliant with Medicare enrollment requirements because his Pennsylvania medical license had been suspended effective June 18, 2018. Further, the administrative contractor determined that Petitioner failed to report the suspension (i.e., an adverse legal action) by the Commonwealth of Pennsylvania Board of Medicine (Medical Board) to the Medicare contractor as required by 42 C.F.R. § 424.516(d)(1)(ii).  CMS Exhibit (Ex.) 3.

On September 10, 2018, Petitioner filed a request for reconsideration with the CMS administrative contractor. Petitioner acknowledged that his Pennsylvania medical license was temporarily suspended and that he immediately ceased his medical practice on June 18, 2018.  He asserts that his license suspension is temporary, not a final adverse action, and he intends to defend the alleged criminal offenses.  Petitioner also argues that the Participating Provider Agreement he signed allows 90 days to report any revocation or suspension, as articulated in the CMS Form 855 Enrollment Application.  CMS Ex. 4.  

On November 16, 2018, the CMS administrative contractor issued a reconsidered determination.  CMS Ex. 5. The administrative contractor upheld the revocation of Petitioner’s billing privileges and the three-year re-enrollment bar, concluding that both were issued correctly in accordance with 42 C.F.R. § 424.535(a)(1) and (a)(9). CMS Ex. 5 at 1, 3.

On January 10, 2019, Petitioner timely filed a request for a hearing with the Departmental Appeals Board, Civil Remedies Division.  The case was originally assigned to Administrative Law Judge Bill Thomas.  On January 24, 2019, Judge Thomas issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order).  On September 1, 2021, the case was reassigned to me.  I adopt the January 24, 2019 Pre-hearing Order.  CMS timely filed a motion for summary judgment and brief (CMS Br.), along with CMS Exs. 1-5.  Petitioner timely filed his pre-hearing exchange, which included a response brief (P. Br.), and P. Exs. 1-5.  Petitioner’s exhibits are duplicative of those filed by CMS.  

II. Decision on the Record

Because neither party objected to any of the proposed exhibits, I admit CMS Exs. 1-5 and P. Exs. 1-5 into the record.  Pre-hearing Order ¶ 8; Civil Remedies Division Procedures (CRDP) § 14(e).

The Pre-hearing 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 the witness.  Pre-hearing Order ¶¶ 9, 10, and 11; see Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB

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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).  Neither party submitted any proposed witnesses.  Therefore, a hearing in this case is unnecessary and I decide this case based on the written record. CRDP §§ 16(b), 19(b), (d).  The motion for summary judgment is therefore moot.

III. Issue

Whether CMS had a legitimate basis to revoke Petitioner’s billing privileges under 42 C.F.R. § 424.535(a)(1) and (a)(9).

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

My findings of fact and conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

In order to participate in the Medicare program as a supplier, individuals must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510, and 424.516.  CMS may revoke the Medicare billing privileges of suppliers who do not continue to comply with all enrollment requirements.  42 C.F.R. § 424.535(a)(1).  CMS may also revoke the billing privileges of a supplier who fails to timely inform CMS of any adverse legal action taken against the supplier.  42 C.F.R. §§ 424.516(d)(1), 424.535(a)(9).

1. On June 18, 2018, the Medical Board temporarily suspended Petitioner’s medical license.

On June 18, 2018, Petitioner’s Pennsylvania medical license was temporarily suspended by the Medical Board. CMS Ex. 1; P. Ex. 1.

2. 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)(1), because Petitioner was no longer in compliance with enrollment requirements once his medical license was suspended.

Any physician who participates in the Medicare program is considered a “supplier.”  42 U.S.C. § 1395x(d).  The regulation at 42 C.F.R. § 424.535(a)(1) authorizes CMS to revoke a currently enrolled supplier’s billing privileges if CMS determines that the supplier no longer meets the enrollment requirements for its supplier type, subject to an opportunity for the supplier to make corrections before revocation.

Among the applicable requirements for a supplier to maintain enrollment is compliance with the applicable federal and state licensure requirements for his supplier type.

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42 C.F.R. § 424.516(a)(2).  Relevant to this case, a “physician” for Medicare program purposes is “a doctor of medicine . . . legally authorized to practice medicine and surgery by the State in which he performs such function or action. . . .”  42 U.S.C. § 1395x(r)(1); 42 C.F.R. § 410.20(b).

In order to enroll in Medicare as a supplier and receive billing privileges, Petitioner needed to be recognized as a licensed physician.  Petitioner does not dispute that his medical license was temporarily suspended on June 18, 2018.  P. Br. at 2; P. Ex. 1 at 1; CMS Ex. 1.  Petitioner was required to surrender his wall certificate, biennial renewal certificates, and wallet cards.  When the Medical Board suspended Petitioner’s medical license, Petitioner no longer met the enrollment requirements of 42 C.F.R. §§ 410.20(b) and 424.516(a)(2).  As Petitioner was no longer a licensed physician, even if temporarily, Petitioner was unable to demonstrate that he met all enrollment requirements.  42 C.F.R. § 424.545(c). Therefore, CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges. 42 C.F.R. § 424.535(a)(1).

3. I do not need to decide whether Petitioner failed to report an adverse legal action under 42 C.F.R. § 424.535(a)(9).

The regulation requires that a physician report “any adverse legal action” to the Medicare contractor within 30 days.  42 C.F.R. § 424.516(d)(1)(ii).  The phrase “adverse legal action” is not specifically defined in 42 C.F.R. Part 424.  However, “final adverse action” is defined in the regulations to include “[s]uspension or revocation of a license to provide health care by any State licensing authority.”  42 C.F.R. § 424.502.  Failure to report an adverse legal action is a basis to revoke a physician’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(9).

CMS argues that Petitioner failed to report the suspension of his medical license to the Medicare contractor within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii), and thus, another basis to revoke Petitioner’s billing privileges exists under 42 C.F.R. § 424.535(a)(9).

Because I have concluded that Petitioner did not comply with Medicare requirements for enrollment due to the suspension of his medical license, I do not need to decide whether Petitioner also violated 42 C.F.R. § 424.535(a)(9).  If CMS revokes a supplier’s billing privileges, the effective date of the revocation is usually 30 days after the date on the notice of revocation.  However, if CMS revokes a supplier’s billing privileges because it did not meet certain enrollment requirements, including a license suspension or revocation, then the effective date of revocation is the date CMS determined that the provider was out of compliance with the enrollment requirements.  42 C.F.R. § 424.535(g).  Therefore, it is only necessary for me to decide whether to uphold the finding that Petitioner was noncompliant with enrollment requirements to affirm CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges.

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4. When CMS revoked Petitioner’s billing privileges, the regulations required CMS to impose a re-enrollment bar that is at least one year in duration.

Whenever CMS has properly imposed revocation on a supplier, 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 the re-enrollment bar “[b]egins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 3 years, depending on the severity of the basis for revocation.”

CMS has imposed a three-year re-enrollment bar for Petitioner.  CMS Ex. 3 at 3. I cannot consider Petitioner’s arguments related to the length of the re-enrollment bar.  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.”).  I am bound by the regulations because they have the force and effect of federal law.  See Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979); 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

V. Conclusion

I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges. I also affirm CMS’s determination to impose upon Petitioner a three (3) year re enrollment bar.