Nirmal Singh Rai, DAB CR6051 (2022)

DECISION

Petitioner, Nirmal Singh Rai, is a California physician who participated in the Medicare program.  In September 2018, he was convicted of felony grand theft.  He did not report that conviction to the Centers for Medicare & Medicaid Services (CMS). Based on his conviction and his failing to report, the Medicare contractor, Noridian Healthcare Solutions, revoked his Medicare enrollment and billing privileges, effective September 26, 2018, followed by a three-year reenrollment bar.

Because his Medicare billing privileges were revoked for conduct detrimental to the Medicare program and because he was under a reenrollment bar, CMS has added Petitioner’s name to the Medicare preclusion list.

Petitioner now appeals CMS’s determination to add his name to the preclusion list.

I affirm CMS’s determination. I find that CMS is authorized to include Petitioner Rai on the preclusion list because his Medicare enrollment was revoked for conduct detrimental to the best interests of the Medicare program, and he was under a reenrollment bar at the time his name was added to the preclusion list.

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Background

By letter dated January 31, 2020, CMS advised Petitioner that he was being added to the CMS preclusion list. As the letter explains, CMS acted pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6), because Petitioner’s Medicare billing privileges were previously revoked, he was under a reenrollment bar, and CMS determined that the conduct leading to his revocation is detrimental to the best interests of the Medicare program.  CMS Ex. 2 at 1.

Petitioner requested reconsideration.  CMS Ex. 1.

In a reconsidered determination, dated June 8, 2020, a CMS hearing officer upheld the initial determination.  CMS Ex. 7. The hearing officer agreed that including Petitioner on the preclusion list was proper because his enrollment was revoked for conduct detrimental to the Medicare program (which it unquestionably was), and he was under a reenrollment bar. CMS Ex. 7 at 3-6.

The effective date of the reconsideration determination, June 8, 2020, became the date that Petitioner was added to the preclusion list. CMS Ex. 2 at 1; CMS Ex. 7 at 5.

Petitioner timely appealed.

Hearing on the written record. CMS moves for summary judgment.  My initial order instructs the parties to list any proposed witnesses and to submit their written direct testimony. Acknowledgment and Prehearing Order at 4, 5 (¶¶ 4(c)(iv), 8) (August 12, 2020). The order also directs the parties to indicate which, if any, of the opposing side’s witnesses the party wishes to cross-examine and explains that an in-person hearing is needed only if a party wishes to cross-examine the opposing side’s witnesses. Id. at 5, 6 (¶¶ 9, 10). CMS lists no witnesses. Petitioner, who is represented by counsel, lists one witness, himself, but does not provide a written declaration. He would therefore not be allowed to testify. See James Brian Joyner, M.D., DAB No. 2902 at 11-12 (2018); Miracle Deeds Medical Supplies, LLC, DAB No. 2785 at 4-5 (2017). An in-person hearing would therefore serve no purpose, and I may decide this case based on the written record without considering whether the standards for summary judgment are met.

Exhibits. CMS submits its brief (CMS Br.) and eight exhibits (CMS Exs. 1-8). Petitioner submits his brief (P. Br.) and three exhibits (P. Exs. 1-3).  In the absence of any objections, I admit into evidence CMS Exs. 1-8.

CMS objects to my admitting Petitioner’s exhibits:  

• P. Ex. 1 is a court order for dismissal, filed January 10, 2020, issued as part of Petitioner’s criminal proceeding.

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• P. Ex. 2 is a January 24, 2020 letter (identical to CMS Ex. 2, except for the date) advising Petitioner that he was being placed on the preclusion list.1
• P. Ex. 3 is a series of emails between Petitioner’s counsel and CMS.  One, dated June 8, 2020, transmits the reconsidered determination from CMS to Petitioner’s counsel.  In one, dated August 4, 2020, Petitioner’s counsel asks about the appeal deadline. The remaining two, dated August 5 and 6, 2020, involve CMS’s forwarding attachments to Petitioner’s counsel.

CMS objects to my admitting these documents because:  1) Petitioner did not submit them at the reconsideration level and has not shown good cause for its failing to do so; and 2) they are irrelevant.

I am required to examine any new documentary evidence to determine whether the provider has good cause for submitting it for the first time at the ALJ level of review. If I find that good cause does not exist, I must exclude the evidence and may not consider it in reaching a decision. 42 C.F.R. § 498.56(e); see 42 C.F.R. § 405.803(e).

In advising Petitioner of his right to request reconsideration, the contractor also advised him that he could submit additional information.  The contractor warned:  

However, if you have additional information that you would like a Hearing Officer to consider during the reconsideration or, if necessary, an Administrative Law Judge (ALJ) to consider during a hearing, you must submit that information with your request for reconsideration. This is your only opportunity to submit information during the administrative appeals process unless an ALJ allows additional information to be submitted.

CMS Ex. 2 at 2 (emphasis added). My prehearing order also advised Petitioner that he could not offer new documentary evidence absent a showing of good cause for failing to present that evidence previously to CMS. My order directed Petitioner to identify the evidence as new and to explain why good cause exists for me to receive it. Prehearing Order at 5 (¶ 6).

Petitioner has not explained why he did not submit P. Exs. 1 and 2 at the reconsideration level. They were certainly available. The court order (P. Ex. 1) was issued more than two months prior to Petitioner’s requesting reconsideration and five months prior to CMS’s issuing its reconsidered determination. And, assuming Petitioner thought that the

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January 24 letter (P. Ex. 2) had special significance, Petitioner could have submitted it as well.

Because no good cause justifies Petitioner’s failing to submit the documents at the reconsideration stage, I must exclude the evidence and may not consider it in reaching my decision. Mohammad Nawaz, M.D., & Mohammad Zaim, M.D., PA, DAB No. 2687 at 12-13 (2016), aff’d, Nawaz v. Price, 2017 WL 2798230 (E.D. Tex. 2017) (finding that the ALJ did not abuse his discretion when he did not find good cause to admit documents not offered at reconsideration because the regulation itself provided notice of the requirement to provide all documents on reconsideration).

The emails that comprise P. Ex. 3 were not available prior to CMS’s issuing its reconsidered determination, so, even though Petitioner did not comply with my prehearing order that he show good cause, I find good cause for his not submitting the documents earlier. However, I agree with CMS that they are irrelevant. As Petitioner concedes, he received the reconsidered determination and the attachments. That he needed to send a follow-up e-mail before he obtained the attachments is hardly relevant. In any event, the attachments, which were specifically identified in the reconsidered determination, should already have been in Petitioner’s possession: his own reconsideration request, notice letters, court documents from his criminal case, and the California State Medical Board settlement and disciplinary order. CMS Ex. 7 at 2.

I therefore decline to admit P. Exs. 1-3.

Discussion

CMS acted within its authority when it added Petitioner to its preclusion list because his Medicare enrollment was revoked for conduct detrimental to the best interests of the Medicare program, and he was then under a reenrollment bar.2

The Medicare Program. The Medicare program, Title XVIII of the Social Security Act (Act), is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease. Medicare is divided into four parts:  

• Part A is the hospital insurance program. It covers hospital services, post-hospital extended care, home health, and hospice care. Act § 1811 (42 U.S.C. § 1395c);

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• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, home health, outpatient rehabilitation, and other services. Act § 1832 (42 U.S.C. § 1395k);
• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health maintenance organizations, that receive a fixed payment for each enrollee. Act § 1851 (42 U.S.C. § 1395w-21); and
• Part D is the voluntary prescription drug benefit program. Act § 1860D (42 U.S.C. § 1395w-101).

The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services. CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes. Act § 1842 (42 U.S.C. § 1395u). Contractors pay claims to “providers” (Part A) and “suppliers” (Part B).

Physicians, such as Petitioner, may participate in the program as “suppliers” of services. Act § 1861(d), (q), (r) (42 U.S.C. § 1395x(d), (q), (r)); 42 C.F.R. § 400.202.

Revocation. CMS may revoke a physician supplier’s Medicare billing privileges if, among other provisions:

• within the preceding ten years, he was convicted of a felony offense that CMS “has determined to be detrimental to the best interests of the program and its beneficiaries.”  Offenses for which billing privileges may be terminated include, but are not limited to:  financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and similar crimes; and any felonies that would result in mandatory exclusion under section 1128(a) of the Act.  42 C.F.R. § 424.535(a)(3)(i), (ii)(B) and (D).

Among the felonies that would result in mandatory exclusion under section 1128(a) are: offenses related to the delivery of an item or service under Medicare or a state health care program (1128(a)(1)); and offenses related to health care fraud (1128(a)(3)).

• he fails to report, within 30 days, any adverse legal action.  42 C.F.R. § 424.535(a)(9); see 42 C.F.R. § 424.516(d)(1)(ii).

See also Act §§ 1842(h)(8), 1861(r), and 1866(b)(2)(D).

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Where, as here, CMS revokes on multiple grounds, the revocation may be upheld based on any one of those grounds. Eva Orticio Villamor-Goubeaux, DAB No. 2997 at 13 (2020) and cases cited therein.

The preclusion list.  Effective January 1, 2019, CMS implemented a “preclusion list” as part of its effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees,” particularly with respect to prescription drug abuse.3 Pursuant to 42 C.F.R. § 422.2 (Part C) and 42 C.F.R. § 423.100 (Part D), CMS’s “preclusion list” includes individuals and entities that:

• are currently revoked from Medicare enrollment, are under an active reenrollment bar, and CMS determines that the underlying conduct leading to the revocation is detrimental to the best interests of the Medicare program; or
• have engaged in behavior for which CMS could have revoked the prescriber, individual, or entity had it been enrolled in the Medicare program, and CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program.

Petitioner’s offense and the revocation. Petitioner Rai was a physician, licensed and practicing in California. In a complaint filed June 13, 2018, he was charged with one felony count of submitting false and fraudulent statements to Medi-Cal (the state Medicaid program), two felony counts of health care fraud, and two felony counts of grand theft. CMS Ex. 4 at 15-17. Specifically, for almost five years, he submitted false claims to the state Medicaid program, claiming to have performed medical procedures that he did not perform. He prepared and signed medical records, falsely documenting that he had performed those procedures. CMS Ex. 4 at 2. 

Pursuant to a plea agreement, Petitioner pleaded nolo contendere, and, on September 26, 2018, was convicted on one count of felony grand theft – taking money, “by means of fraudulent representation and pretense,” from the Medi-Cal program, in violation of section 487(a) of the California Penal Code. CMS Ex. 4 at 16; CMS Ex. 5 at 1. He was sentenced to 90 days in the county jail, followed by five years probation, and ordered to pay restitution in the amounts of:  $21,058 to the Medicare program; $39,574.20 to the Medi-Cal program; and $5,000 to the Department of Justice. CMS Ex. 5 at 1, 2.

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The judgment of conviction also provided that, after completing the period of probation and complying with all the terms of his sentence, Petitioner could ask the court to withdraw his plea and set aside the guilty verdict.  CMS Ex. 5 at 6.

Petitioner did not advise the Medicare contractor of his conviction.

In a letter dated December 17, 2018, the Medicare contractor advised Petitioner that his Medicare billing privileges were revoked. The letter explained that the contractor revoked for two reasons:  1) pursuant to section 424.535(a)(3), because, on September 26, 2018, Petitioner was convicted of a felony grand theft; and 2) pursuant to section 424.535(a)(9) because he did not report his felony conviction, as required by section 424.516(d)(1)(ii). The contractor imposed a three-year reenrollment bar.  CMS Ex. 3.

Petitioner did not request reconsideration, so the contractor’s determination is binding. 42 C.F.R. § 498.20(b).

This case is straight-forward. Petitioner was convicted of felony grand theft because he stole money from the state Medicaid program. His crime is, by regulation, detrimental to the best interests of the Medicare program and its beneficiaries, both because it involved “insurance fraud” or “similar crime” and because it is a crime for which exclusion is required under section 1128(a) of the Act. CMS was therefore authorized to revoke Petitioner’s Medicare enrollment and billing privileges and to impose a reenrollment bar. 42 C.F.R. §§ 424.535(a)(3)(ii)(B), 424.535(c). Because his enrollment was revoked for a felony conviction deemed detrimental to the best interests of the Medicare program and its beneficiaries and because he was under a reenrollment bar, CMS was authorized to add Petitioner to the Medicare preclusion list. 42 C.F.R. §§ 422.2, 423.100.

Petitioner’s arguments. Underlying Petitioner’s arguments is his attack on the revocation itself. But this is not the forum in which Petitioner can challenge any aspect of his revocation. My review is limited. I may review CMS’s reconsidered determination to include Petitioner on the preclusion list. 42 C.F.R. §§ 498.3(b)(20), 498.5(n)(1); see 42 C.F.R. § 423.120(c)(6)(v)(A) (“A prescriber may appeal his or her inclusion on the preclusion list under this section in accordance with part 498 of this chapter.”); 83 Fed. Reg. at 16642-43 (confirming that the preclusion “appeals process would neither include nor affect appeals of . . . enrollment revocations, for there are separate appeals processes for these actions.”); Hiva Vakil, M.D., DAB No. 2460 at 4 (2012) (“[T]he regulations plainly require that CMS or one of its contractors must issue a ‘reconsidered determination’ before the affected party is entitled to request a hearing before an ALJ.”). Other avenues were available for Petitioner to challenge the revocation, but this forum is not one of them.

Virtually all of Petitioner’s defenses suggest that CMS improperly revoked his Medicare billing privileges and must fail because I am not authorized to review that determination.

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However, to the extent that they can be considered challenges to CMS’s determination to add his name to the preclusion list, they fail for a myriad of other reasons.

No felony conviction. Petitioner argues that he was not convicted of a felony because his felony conviction was later reduced to a misdemeanor and then dismissed.  P. Br. at 3.  In fact, under federal law, notwithstanding the state court’s later actions, Petitioner was convicted of a felony. Section 424.535(a)(3) adopts the definition of “convicted” found at 42 C.F.R. § 1001.2. That section and the statute itself provide that a person is “convicted” when:  1) “a judgment of conviction has been entered” regardless of whether that judgment has been (or could be) expunged; 2) there has been a finding of guilt; 3) a plea of guilty or nolo contendere has been accepted by the court; or 4) the individual has entered into participation in a first offender, deferred adjudication, or other arrangement or program where the judgment of conviction has been withheld. Act § 1128(i); 42 C.F.R. § 1001.2 (convicted). Petitioner’s “no contest” plea is thus a conviction, within the meaning of the statute and regulation.

By a long line of cases, the Departmental Appeals Board has confirmed that, under federal law, a “conviction” includes diverted, deferred, and expunged convictions, regardless of whether state law treats such actions as a conviction.  Federal law, not state law, controls what constitutes a “conviction” for the purpose of federal laws designed to protect the Medicare program and its beneficiaries. Sunsites Pearce Fire District, DAB No. 2926 (2019); Stephen White M.D., DAB No. 2912 (2018); Dennis McGinty, PT, DAB No. 2838 (2017); Kimberly Shipper, PA, DAB No. 2804 (2017); Lorrie Laurel, PT, DAB No. 2524 (2013); Henry L. Gupton, DAB No. 2058 (2007), aff’d sub nom. Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).

Faulty notice. Petitioner complains that CMS’s January 2020 notice letter (CMS Ex. 2) is “extremely vague” and “does not even give a reason” for his being placed on the preclusion list. P. Br. at 3.  This is not so. The notice letter explains that Petitioner was being placed on the preclusion list because his Medicare billing privileges were revoked, he is currently under a reenrollment bar, and the underlying conduct that led to the revocation “is detrimental to the best interests of the Medicare program.”  The letter also cited the regulations that authorized CMS to add Petitioner’s name to the preclusion list. CMS Ex. 2 at 1.

According to Petitioner, he was unaware that his billing privileges had been revoked and “assumed” that he was placed on the preclusion list because of an “issue” with the Medical Board of California. P. Br. at 3.4 Considering that the notice letter said that he

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was placed on the preclusion list because his “billing privileges have been previously revoked,” it is impossible to credit this.  I also find disingenuous his claim that he did not even suspect that the revocation might have been related to his felony conviction for stealing from a state health insurance program. He suggests that his assumption was reasonable because his felony conviction had been reduced to a misdemeanor. In fact, his felony conviction was reduced to a misdemeanor at about the same time he received CMS’s first notice that he’d been placed on the preclusion list (January 10, 2020 and January 24, 2020). 

In any event, that he misunderstood the reasons for his being placed on the preclusion is difficult to understand. Did he really assume that stealing from a federal health-care program would have no impact on his ability to participate in Medicare?  If so, this evidences a profound ignorance of the Medicare regulations. It is well-settled that, as a participant in the Medicare program, Petitioner is charged with knowing its governing regulations. Sunshine Haven Lordsburg, DAB No. 2456 at 20 (2012) (citing Heckler v. Community Health Services of Crawford County, 467 U.S. 51, 63, 64 (1984)); Manor of Wayne, DAB No. 2249 at 10 (2009) (holding that the prospective provider had “constructive notice” of the regulations); Cary Health and Rehab Ctr., DAB No. 1771 (2001) (finding that applicants are responsible for understanding what is required of them to be program participants).

Petitioner also argues that he was denied due process because the January 31, 2020 notice letter does not mention section 424.535(a)(9), which the hearing officer cited in her reconsidered determination. P. Br. at 3-4. This argument fails on several levels, primarily because it is immaterial. Even disregarding the revocation under section 424.535(a)(9), CMS was authorized to add him to the preclusion list based on the section 424.535(a)(3) revocation. CMS Ex. 3 at 1.

Further, Petitioner should have known the bases for his revocation because they were listed in the December 17, 2018 revocation notice that was sent to his address. CMS Ex. 3. He asserts that he did not receive the December 17 revocation notice.  P. Br. at 2, 4. Based on what appears to be a typographical error in CMS’s brief (CMS Br. at 2), he suggests that the notice letter was sent to the wrong address, 1980 E. Hatch Road, instead of his actual address, 1930 E. Hatch Road.  P. Br. at 2.  In fact, the notice was sent to 1930 E. Hatch Rd, and the presumption is that he received it. CMS Ex. 3 at 1. The regulatory presumption is that he received it five days after the date of the notice, unless there is a showing that it was received earlier or later. 42 C.F.R. § 498.22(b)(3).

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Petitioner submits no actual evidence to overcome the regulatory presumption that he received the reconsidered determination within five days of its mailing. (Arguments of counsel are not evidence.) A presumption of receipt “reflects the well-recognized principle that it is ‘both reasonable and legally sound’ for parties in litigation to consider certain legal documents sent through a regular mail system and in the course of litigation to have been received by a date certain.”  Kenneth Schrager, DAB No. 2366 at 4 (2011); see MedStar Health, Inc., DAB No. 2684 at 7 (2016) (finding that, without other evidence, the assertion by an “authorized official” that the supplier did not timely receive notice of a reconsidered determination was insufficient to overcome the regulatory presumption).

Moreover, Petitioner’s claim of ignorance rings hollow in another respect. He concedes that he knew that he was no longer allowed to bill the Medicare program:  “His NPI stopped working and he assumed it was due to the action of the Medical Board of California. He assumed it was temporarily inactive and would be reactivated once his probation was complete.” CMS Ex. 1 at 1. Yet, he did not even ask why he was no longer allowed to bill the program.5

Finally, whatever injury Petitioner suffered as the result of a purportedly deficient initial notice of preclusion could have been corrected at this level. He concedes that the reconsideration determination discussed section 424.535(a)(9). Yet, although he claims that he didn’t know about it until he received the reconsidered determination, Petitioner has not shown that he suffered any particular harm as a result. See Fady Fayad, DAB No. 2266 at 11 (2009) (holding that the de novo proceedings before an ALJ cured alleged deficiencies of the reconsidered determination), aff’d sub nom. Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011); accord Heckler v. Campbell, 461 U.S. 458, 462 n.6 (1983) (holding that hearings held pursuant to section 205(b) of the Social Security Act are de novo).  

Detrimental to the best interests of the program and its beneficiaries. Petitioner challenges CMS’s determination that his felony conviction was detrimental to the best interests of the Medicare program, claiming that “no evidence establishes that he stole Medicare funds.”  P. Br. at 6.  In fact, we know that Petitioner stole money from the Medicare program because the criminal court ordered him to return it; the court required him to pay $21,058 in restitution to the Medicare program. CMS Ex. 5 at 2. Restitution has long been considered a measure of program losses. See Jason Hollady, M.D., DAB No. 1855 (2002).

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In any event, financial crimes, such as insurance fraud and similar crimes (which would include stealing large sums from the Medicaid program) are, by law, crimes that are detrimental to the best interests of the Medicare program. Act § 1128(a)(3); 42 C.F.R. § 424.535(a)(3)(ii)(B) and (D).

Other arguments. Petitioner argues that he should not be sanctioned because his “last instance of any wrongdoing” occurred in January 2016.  P. Br. at 6.  But the regulation authorizes CMS to revoke billing privileges if his felony conviction occurred “within the preceding ten years.” 42 C.F.R. § 424.535(a)(3)(ii)(B) and (D).

He claims that “no evidence” suggests that he was “an incompetent physician, mistreated patients, or that his treatment of patients fell below the requisite standard of care.”  P. Br. at 6. Again, this is not so. Petitioner admitted that the California Medical Board “could establish a factual basis for” charges of gross negligence in the treatment of five patients, repeated negligent acts, and creating and signing false records, plainly evidence that he mistreated patients. CMS Ex. 6.

Finally, as the Departmental Appeals Board has repeatedly confirmed, I am not authorized to overturn a legally valid agency action based on equitable grounds or otherwise grant equitable relief.  Wendell Foo, M.D., DAB No 2904 at 25 (2018) (citing Foot Specialists of Northridge, DAB No. 2773 at 18 (2017)). I may review whether the regulations authorize CMS’s actions.  So long as CMS establishes a basis for placing Petitioner on the preclusion list, I must uphold its doing so.  See Foo, DAB No. 2904 at 3; Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018) (citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016)).

Conclusion

CMS was authorized to include Petitioner Rai on the preclusion list because his Medicare enrollment was revoked for conduct detrimental to the best interests of the Medicare program, and he was under a reenrollment bar at the time his name was added. I therefore affirm CMS’s determination.
 

1. Apparently, CMS inadvertently sent two identical notices. See CMS Objections at 3.
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2. I make this one finding of fact/conclusion of law.
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3. Apparently, CMS considered requiring Medicare enrollment for all providers and suppliers of Medicare Advantage services and prescribers of Part D drugs but, ultimately, opted for a preclusion list instead. CMS concluded that the burden of requiring Medicare enrollment for hundreds of thousands of additional providers, suppliers, and prescribers would be too great and would threaten beneficiary access to prescriptions and services. See 82 Fed. Reg. at 56,336, 56,442, 56,448 (Nov. 28, 2017); 83 Fed. Reg. 16,440, 16,646 (Apr. 16, 2018).
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4. This “issue” before the California Medical Board was hardly as insignificant as Petitioner suggests. In a lengthy and detailed complaint, the Board charged him with gross negligence in the treatment of five patients, repeated negligent acts, creating false records, signing false records, submitting false claims to the Medi-Cal program, and failing to maintain adequate records. CMS Ex. 6 at 17-49. Acknowledging that Board “could establish a factual basis for the charges,” Petitioner agreed to having his medical license revoked, although the revocation was stayed pending his successful completion of a five-year probationary period. CMS Ex. 6 at 2-15.
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5. And if his assumption had been correct, and CMS imposed sanctions based on the Medical Board’s actions (which it was empowered to do), Petitioner still failed to request reconsideration. So it’s hard to see how his purported misunderstanding of the basis for CMS’s actions justified his failing to find out why his billing privileges had been cut off and to appeal that determination.
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