Fawad Hameedi, DAB CR5990 (2021)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through its Medicare administrative contractor, National Government Services, Inc. (NGS), revoked the enrollment and billing privileges of Fawad Hameedi, M.D. (Petitioner).  NGS determined that revocation was authorized pursuant to 42 C.F.R. § 424.535, subsections (a)(3), (a)(4) and (a)(12) because Petitioner was convicted of a felony offense within the previous10 years; because, by failing to disclose his conviction, he provided false or misleading information on his Medicare enrollment application; and because he was terminated from the Connecticut Medicaid program.  NGS also barred Petitioner from re-enrolling in the Medicare Program for three years.  

Following the revocation of Petitioner’s Medicare enrollment, CMS placed Petitioner on its 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 now appeals an unfavorable reconsidered determination in which CMS affirmed his placement on the preclusion list.  As explained below, I conclude that CMS had legal basis to place Petitioner on its preclusion list.

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I.  Case Background and Procedural History

Petitioner is a physician licensed in Connecticut who participated in the Medicare program as a “supplier” of services.1   CMS Exhibit (Ex.) 5 at 1.  By letter dated May 10, 2019, NGS informed Petitioner that, effective March 4, 2018, his Medicare enrollment and billing privileges were revoked.2   CMS Ex. 8.  The notice letter cited three bases for revocation:  42 C.F.R. §§ 424.535(a)(3) – Felonies; 424.535(a)(4) – False or Misleading Information; and 424.535(a)(12) – Medicaid Termination.  Id. at 1.  The letter also informed Petitioner that he was barred from re-enrolling in Medicare for three years pursuant to 42 C.F.R. § 424.535(c).  Id. at 2.  Finally, the notice informed Petitioner of his right to request reconsideration of the revocation.  Id.  However, Petitioner did not request reconsideration.

In a letter dated August 30, 2019,3 CMS notified Petitioner that he would be added to CMS’s preclusion list effective February 1, 2020.4   CMS Ex. 9.  CMS’s letter informed Petitioner of his right to request reconsideration, but instructed that he “may not appeal, through this process, the merits of any past Medicare revocation or any exclusion by another Federal agency that has resulted in you being placed on the preclusion list” and that “[t]he reconsideration process described in this letter applies only to your placement on the preclusion list.”  Id. at 2.  Petitioner requested reconsideration.  CMS Ex. 10.  By letter dated December 13, 2019, CMS issued a reconsidered determination upholding its decision to place Petitioner on the preclusion list.  CMS Ex. 11.

On February 10, 2020, Petitioner, through counsel, requested a hearing to appeal CMS’s reconsidered determination and the case was assigned to me.  On February 12, 2020, my

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office acknowledged receipt of Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).

In response to the Prehearing Order, CMS filed a prehearing brief, incorporating a motion for summary judgment (CMS Br.), and 15 proposed exhibits (CMS Exs. 1‑15).  CMS did not propose any witnesses.  Petitioner, through counsel, filed a prehearing brief and opposition to CMS’s motion for summary judgment (P. Br.), as well as nine proposed exhibits (P. Exs. 1-9), including the written declarations of Petitioner and two other proposed witnesses.  Neither party has objected to the other party’s exhibits.  Therefore, in the absence of objection, I admit into the record CMS Exs. 1-15 and P. Exs 1-9.  Prehearing Order ¶ 7.

CMS did not request to cross-examine Petitioner’ witnesses.  Thus, a hearing is not necessary, and I decide this case on the written record without considering whether the standard for summary judgment is met.  Prehearing Order ¶ 10.  I deny CMS’s motion for summary judgment as moot.

II.  Issue

The issue in this case is:

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.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(20), 498.5(n)(2);5 see also Social Security Act (Act) § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)).

IV.  Discussion

A. Statutory and Regulatory Framework

Petitioner, a licensed physician, is a supplier of health care services for purposes of the Medicare program.  See Act § 1861(d) (42 U.S.C. § 1395x(d)); 42 C.F.R. §§ 400.202 (definition of supplier), 410.20(b)(1).  To participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R §§ 424.505, 424.510.

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CMS may revoke the enrollment and billing privileges of a supplier for any reason stated in 42 C.F.R. § 424.535(a).  Pursuant to 42 C.F.R. § 424.535(g), when revocation is based on a felony conviction, revocation is effective as of the date of conviction.6  After a supplier’s Medicare enrollment is revoked, the supplier is “barred from participating in the Medicare program from the effective date of the revocation until the end of the re‑enrollment bar.”  42 C.F.R. § 424.535(c).  At the time of the initial revocation determinations, the length of the re‑enrollment bar ranged from one to three years.  42 C.F.R. § 424.535(c)(1) (2019). 

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).  CMS is authorized to include an individual, entity, or prescriber on its preclusion list, if all of the following requirements are 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, 423.100.7   CMS considers the following factors when deciding whether the conduct underlying a revocation is detrimental to the best interests of the Medicare program:

(A) The seriousness of the conduct underlying the . . . revocation;

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(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.  An individual will only be included on the preclusion list after the expiration of either of the following:

(A) If the individual does not file a reconsideration request under [42 C.F.R.] § 498.5(n)(1) . . . the individual or entity will be added to the preclusion list upon the expiration of the 60-day period in which the individual or entity may request a reconsideration; or

(B) If the individual or entity files a reconsideration request under [42 C.F.R.] § 498.5(n)(1) . . . the individual or entity will be added to the preclusion list effective on the date on which CMS, if applicable, denies the individual's or entity’s reconsideration.

42 C.F.R. § 422.222(a)(3)(i); see also 42 C.F.R. § 423.120(c)(6)(v)(C) (2020) (containing substantially identical language with respect to prescribers under Part D).8

An individual or entity placed on the preclusion list may bring an appeal in accordance with 42 C.F.R. part 498, as inclusion on the preclusion list is identified as an initial determination for purposes of appeal rights.  42 C.F.R. §§ 498.3(b)(20), 498.5(n).  However, unless an individual or entity receives notice of Medicare revocation and inclusion on the preclusion list at the same time, any review by an administrative law judge is “limited strictly” to inclusion on the preclusion list.  See 83 Fed. Reg. at 16,663; see also 42 C.F.R. § 498.5(n)(1)(ii).

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

1. I have no authority to review CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges because CMS did not issue a reconsidered determination.

As described above, CMS, through its contractor NGS, revoked Petitioner’s Medicare enrollment and billing privileges, effective March 4, 2018.  CMS Ex. 8.  NGS’s notice cited three reasons for revoking Petitioner’s Medicare enrollment and subsequent imposition of a three-year re-enrollment bar:  42 C.F.R. §§ 424.535(a)(3) – Felonies; 424.535(a)(4) – False or Misleading Information; and 424.535(a)(12) – Medicaid Termination.  Id. at 1.  In contesting his inclusion on CMS’s preclusion list, Petitioner argues extensively that he should not be included on the preclusion list because the revocation of his Medicare enrollment and billing privileges was improper.  P. Br. at 5‑15.  However, those arguments are foreclosed in the present action.

First of all, 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) (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).  Petitioner argues that he did not request reconsideration because he did not receive the initial determination revoking his enrollment and billing privileges within five days of its date because it was sent to an incorrect address.9   P. Br. at 13.  The suppliers in Elzaim similarly argued that CMS’s contractor sent the revocation notice to an incorrect address, so that they did not receive the notice timely.  DAB 2501 at 4.  The appellate panel rejected the suppliers’ argument.  Id.  Therefore, consistent with the reasoning in the Elzaim decision, I conclude that, in the absence of a reconsidered determination, I may not review the revocation of Petitioner’s Medicare enrollment.

Second, even if CMS had issued a reconsidered determination upholding the revocation of Petitioner’s Medicare enrollment, a preclusion list appeal does not provide the supplier with another opportunity to challenge the underlying revocation.  On this point, the preamble to the preclusion regulation clearly states:

We note, however, that the appeals process is intended to permit a [supplier] to challenge CMS’ placement of the [supplier] on the list and not to challenge the underlying reason for the revocation . . . that led to the preclusion list

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inclusion.  Indeed, the preclusion appeals process would neither include nor affect appeals of payment denials or enrollment revocations, for there are separate appeals processes for these actions.  Any appeal under this . . . provision will be limited strictly to the individual's inclusion on the preclusion list.

83 Fed. Reg. at 16,663 (emphasis added).  Accordingly, the issue in this appeal is limited to whether CMS was authorized to place Petitioner on the preclusion list.

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

CMS argues that it properly added Petitioner to the preclusion list because Petitioner’s Medicare enrollment and billing privileges were revoked for reasons CMS deemed detrimental to Medicare and he was under a reenrollment bar.  CMS Br. at 14-20; see also 42 C.F.R. §§ 422.2, 423.100 (definitions of preclusion list).  I agree that CMS properly included Petitioner on the preclusion list.

As I have explained in the previous section of this decision, NGS’s initial determination revoking Petitioner’s Medicare enrollment is binding because CMS did not issue a reconsidered determination regarding the revocation.  Further, 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).  Therefore, the first two requirements for placing Petitioner on the preclusion list are satisfied.

Petitioner argues that CMS erred in determining that his conduct was detrimental to the best interest of the Medicare program.  P. Br. at 16-18.  As an initial matter, 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, 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). Further, I may presume that CMS properly discharged its duty under the regulations absent “clear evidence to the contrary.”  Douglas Bradley, M.D., DAB No. 2663 at 14 (2015) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)).  Moreover, 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.

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Petitioner has offered no evidence that CMS failed to consider the relevant factors or did so improperly.  To the contrary, in its reconsidered determination, CMS explicitly considered the factors outlined in 42 C.F.R. §§ 422.2 and 423.100.  For example, CMS stated: 

CMS has determined certain felony offenses to be per se detrimental to the Medicare program, including insurance fraud.  CMS considers Dr. Hameedi’s felony conviction to be akin to insurance fraud, as he was involved in creating and submitting false claims to insurance carriers, including the Medicare and Medicaid programs for his and his employers’ own benefit.  Furthermore, Dr. Hameedi misrepresented himself as the ordering physician and used other physicians[’] NPIs when communicating with insurance companies to obtain patient pre-authorizations.  The Medicare program relies on the trustworthiness and veracity of its partners for claims processing and reimbursements.  The actions underlying Dr. Hameedi’s conviction demonstrate[] the propensity to falsify and submit insurance claims to defraud insurance carriers, such as the Medicare and Medicaid programs.  The proper and accurate submission of claims is vital to ensuring the integrity of the Medicare program and protecting the Trust Funds.  Therefore, CMS deems the conduct underlying . . . Dr. Hameedi’s felony conviction to be detrimental to the best interests of the Medicare program, as it is very serious and has a negative effect on the integrity of the Medicare program.

CMS Ex. 11 at 5.  As this discussion demonstrates, CMS considered the seriousness of Petitioner’s conduct and the degree to which Petitioner’s conduct could impact the integrity of the Medicare program.  42 C.F.R. § 422.2; see also 42 C.F.R. § 423.100.  Based on Petitioner’s conviction alone, CMS had a reasonable basis to conclude that Petitioner could pose a risk to the Medicare program and its beneficiaries.

In summary, Petitioner satisfied all requirements to be added to the preclusion list.  Accordingly, CMS was legally authorized to add Petitioner to the preclusion list on February 1, 2020.

3. Petitioner’s arguments in equity are not a basis to reverse Petitioner’s inclusion on CMS’s preclusion list.

Petitioner’s arguments amount to contentions that there are equities or mitigating circumstances that CMS should have considered and, based on those considerations, should have refrained from placing Petitioner on the preclusion list.  P. Br. at 5-20.  To the extent Petitioner is arguing that CMS failed to take his unique circumstances into account when deciding to place him on the preclusion list, the regulations do not authorize me to remove Petitioner from the preclusion list on that ground.  In another

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context, an appellate decision of the DAB explained:  “Even assuming CMS had discretion to refrain from [taking an official action] in these circumstances, it chose not to do so, and we have no authority to review that choice.”  City of Sugar Land, DAB No. 2719 at 8 (2016).  I find the reasoning of the Sugar Land decision persuasive authority supporting a conclusion that I may not review CMS’s decision to proceed with placing Petitioner on the preclusion list (or not to remove him from the list based on the arguments in his reconsideration request).  Moreover, to the extent Petitioner is arguing that placing him on the preclusion list is inequitable under the circumstances, many appellate decisions of the DAB have held that administrative law judges are not authorized to overturn, on equitable grounds, an action CMS is authorized by regulation to undertake.  See, e.g., Letantia Bussell, M.D., DAB No. 2196 at 13 (2008); also Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2nd 167 (D. Mass. 2010); US Ultrasound, DAB No. 2302 at 8 (2010).  I see no reason to apply a different rule when CMS has exercised its discretion to place an individual on the preclusion list.

V.  Conclusion

For the reasons explained above, I find that CMS was authorized to include Petitioner on the preclusion list, effective February 1, 2020.

1. A “supplier” is “a physician or other practitioner, or an entity other than a provider, that furnishes health care services under Medicare.”  42 C.F.R. § 400.202.
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2. NGS’s letter was addressed to Petitioner at “163 UNIVERSAL DR N, NORTH HAVEN, CT 06473-3152.”  CMS Ex. 5 at 1 (all caps in original).  This is the address listed as Petitioner’s correspondence address on his CMS 855-I enrollment application.  CMS Ex. 8 at 1.
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3. CMS’s letter was also addressed to Petitioner at “163 UNIVERSAL DR N, NORTH HAVEN, CT 06473-3152.”  CMS Ex. 9 at 1.
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4. Petitioner argues that the letter he received indicated he would be added to CMS’s preclusion list effective February1, 2019.  P. Br. at 20 (citing P. Ex. 8 at 1).  Given that the preclusion list letter to Petitioner was dated August 30, 2019, I presume the date on the initial determination letter was a typographical error.  In any event, CMS’s reconsidered determination states that Petitioner will be added to the preclusion list effective February 1, 2020.  CMS Ex. 11 at 3, 6.  It is the reconsidered determination that is subject to my review.  42 C.F.R. § 498.5(n)(2).
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5. 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).
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6. In the present case, the date of Petitioner’s conviction preceded his enrollment as a Medicare supplier.  CMS Ex. 8 at 1.  NGS therefore informed Petitioner that the revocation would be effective beginning “the date of first enrollment.”  Id. at 2.
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7. Effective January 1, 2020, the preclusion regulations were revised.  84 Fed. Reg. 15,680, 15,827-28, 15,840-41 (April 16, 2019).  I apply the regulations that were in effect when CMS determined to place Petitioner on the preclusion list.
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8. The current provisions of 42 C.F.R. §§ 422.222(a)(3)(i) and 423.120(c)(6)(v)(C) were effective January 1, 2020.  84 Fed. Reg. at 15,680, 15,831, 15,840 (April 16, 2019).  However, the preamble to the final rule adopting the 2018 regulations similarly explained that it was CMS’s policy to place suppliers on the preclusion list following an unsuccessful first‑level appeal.  83 Fed. Reg. at 16,656 (“[N]o provider will be added to the preclusion list until they have exhausted their first level of CMS appeal or if they fail to appeal their addition to the list.”).  I therefore do not regard the current version of the regulations as reflecting any change in policy.
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9. Petitioner does not explain how he received CMS’s notice placing him on the preclusion list, which was mailed to Petitioner at the same address.
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