Stephen Ducker, M.D., DAB CR6093 (2022)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative contractor, First Coast Service Options, Inc. (First Coast), revoked the Medicare enrollment and billing privileges of Stephen Ducker, M.D. (Petitioner) for noncompliance with enrollment requirements and failure to report an adverse legal action within 30 days under 42 C.F.R. § 424.535(a)(1) and (9).  On reconsideration, First Coast upheld the revocation based solely on the failure to timely report the adverse legal action.  Petitioner requested a hearing to dispute the revocation.  Based on the undisputed facts, I conclude that Petitioner's medical license was suspended, and he did not report his suspension within 30 days.  Therefore, I affirm CMS's determination to revoke Petitioner's Medicare enrollment and billing privileges.  I also modify the effective date of the revocation to August 25, 2021, which is 30 days after the date of the revocation notice.

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 July 26, 2021, First Coast revoked Petitioner's Medicare enrollment and billing privileges, effective

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June 28, 2021, based on violations of 42 C.F.R. § 424.535(a)(1) and (9).  Specifically, First Coast determined that Petitioner was noncompliant with Medicare enrollment requirements because his Florida medical license had been suspended effective June 28, 2021.  Further, First Coast determined that Petitioner failed to report the suspension (i.e., an adverse legal action) by the Florida State Board of Medicine (state board) to CMS within 30 days of the adverse legal action, as required by 42 C.F.R. § 424.516(d)(1)(ii).  CMS Exhibit (Ex.) 1 at 107-08.

On August 27, 2021, Petitioner sent to First Coast a Corrective Action Plan (CAP) indicating the suspension was a continuation of the emergency restriction during which CMS allowed Petitioner's billing privileges to remain active.  In addition, Petitioner asserted that he was in the "process of completing [his] petition for reinstatement."  CMS Ex. 1 at 52-55.  The CAP was denied on November 8, 2021.  Id. at 116-19.

On September 29, 2021, Petitioner filed a request for reconsideration with First Coast.  Petitioner acknowledged that his Florida medical license was suspended, but as also stated in the CAP, asserted that he did not need to notify CMS because the suspension was a continuation of the emergency restriction during which CMS allowed Petitioner's billing privileges to remain active.  In addition, Petitioner asserted that he will "soon" have his license reinstated in Florida and will be "back in compliance."  Id. at 92-95.

On December 20, 2021, First Coast issued a reconsidered determination, upholding the revocation under 42 C.F.R. § 424.535(a)(9).  CMS Ex. 1 at 1-6.  First Coast determined that the revocation under 42 C.F.R. § 424.535(a)(1) had been resolved,1 but the revocation and re-enrollment bar under 42 C.F.R. § 424.535(a)(9) is "justified as [Petitioner] failed to timely report the medical license suspension."  Id. at 3.

On December 29, 2021, Petitioner timely filed a request for a hearing with the Departmental Appeals Board, Civil Remedies Division.  The case was assigned to Judge Keith Sickendick.  In accordance with Judge Sickendick's January 3, 2022 Acknowledgment and Pre-hearing Order (Pre-hearing Order), CMS timely filed a motion for summary judgment and brief (CMS Br.), along with CMS Ex. 1.  Petitioner timely filed his pre-hearing exchange, which included a response brief and cross motion for summary judgment (P. Br.).  The case was reassigned to me on May 3, 2022.

II.  Summary Judgment is Appropriate

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

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Summary judgment is appropriate if there is "no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law."  Mission Hosp. Reg'l Med. Ctr., DAB No. 2459 at 5 (2012) (citations omitted), aff'd sub nom Mission Hosp. Reg'l Med. Ctr. v. Burwell, 819 F.3d 1112 (9th Cir. 2016).  Here, there is no genuine dispute of material fact.  The parties' arguments center not on what the facts are, but the legal significance of those facts.  As explained below, I grant CMS's motion for summary judgment and deny Petitioner's cross-motion for summary judgment.

III.  Issue

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

IV.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

V.  Findings of Fact, Conclusions of Law, and Analysis2

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 billing privileges of a supplier who fails to timely inform CMS of any adverse legal action taken against the supplier.  Id. §§ 424.516(d)(1), 424.535(a)(9).

1. On June 28, 2021, the Florida Board of Medicine indefinitely suspended Petitioner's medical license.

On December 8, 2020, the state board restricted Petitioner's license on an emergency basis.  CMS Ex. 1 at 86-89.  On June 28, 2021, the state board filed a final order accepting and adopting a settlement agreement that had been reached in January 2021.  Based on the agreement, Petitioner was fined $10,000 and the state board suspended Petitioner's license "until such time as [Petitioner] demonstrates . . . his ability to practice medicine with reasonable skill and safety."  Id. at 24.  The agreement prohibited Petitioner from practicing medicine unless and until he applied for reinstatement, appeared before the state board, and had his license reinstated.  Id. at 24-25.

2. Petitioner did not report the suspension to the Medicare contractor until on or about August 13, 2021.

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Petitioner does not dispute that his license to practice medicine was suspended from June 28, 2021, to about October 26, 2021.  P. Br. at 1; CMS Ex. 1 at 2-3.  Further, he does not dispute that he first reported the suspension to First Coast on or about August 13, 2021, which is more than 30 days after the date his license was suspended.  P. Br. at 3; CMS Ex. 1 at 3.  As discussed in the following section, Petitioner's reasons for failing to report timely the suspension of his license do not provide a basis for reversing the revocation of his Medicare enrollment and billing privileges.

3. CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) because Petitioner failed to report an adverse legal action within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii).

The regulations require 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."  Id. § 424.502.  Failure to report an adverse legal action is a basis to revoke a physician's Medicare enrollment and billing privileges.  Id. § 424.535(a)(9).

It is true that that the regulations do not separately define the phrase "any adverse legal action" as used in 42 C.F.R. § 424.516(d)(1)(ii).  However, if anything, the phrase "any adverse legal action" in section 424.516(d)(1)(ii) is broader than the term "final adverse action," as defined in section 424.502, because the word "any" can encompass all adverse legal actions, not just final adverse actions.  See Akram A. Ismail, DAB No. 2429 at 10-11 (2011) (concluding that the plain language of the phrase "any adverse legal action" in 42 C.F.R. § 424.516(d)(1)(ii) requires the reporting of a license suspension, even if under appeal). 

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, a basis for revocation of Petitioner's billing privileges exists under 42 C.F.R. § 424.535(a)(9).  CMS Br. at 4-5.  Petitioner argues that he was not required to provide notice to CMS because the June 28, 2021 order of suspension "was a continuation of the initial emergency restriction" that was "sufficiently reported to [the contractor]."3   P. Br.

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at 2-3.  Furthermore, Petitioner argues that his earlier reporting of the emergency restriction "met the drafters' intent to ensure that contractors are able to quickly review recent legal action and determine if any steps are necessary to protect the Medicare program."  Id. at 3.

Petitioner's argument is without merit.  As the CMS hearing officer correctly stated, Petitioner's reporting of the emergency restriction was not sufficient to serve as a notification for the subsequent license suspension.  CMS Ex. 1 at 3.  Petitioner was still allowed to practice medicine under the emergency restriction.  However, Petitioner was no longer allowed to practice medicine after the suspension, triggering the requirement to notify CMS within 30 days of the adverse legal action.  42 C.F.R. § 424.516.  Furthermore, reportable final adverse legal actions include suspension or revocation of a medical license when a medical board suspends or revokes a license for any period of time.  Medicare Program Integrity Manual § 10.6.6.  Petitioner failed to notify First Coast within 30 days following the suspension of his license to practice medicine in Florida.  Therefore, I conclude that CMS had a legal basis to revoke Petitioner's enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9).

4. The revocation effective date is August 25, 2021.

First Coast initially revoked Petitioner's billing privileges effective June 28, 2021, which was based on the date that Petitioner's medical license was suspended.  CMS Ex. 1 at 107; 42 C.F.R. § 424.535(g).  As noted, however, on reconsideration, First Coast upheld the revocation based solely on the failure to report the suspension and not on the suspension itself.  Given that basis for revocation, the regulation at 42 C.F.R. § 424.535(g) mandates that the revocation is effective 30 days after the CMS contractor mails notice of its determination.  30 days after the July 26, 2021 revocation notice in this case is August 25, 2021.  CMS Ex. 1 at 107.

5. 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 "[t]he re-enrollment bar begins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 10 years . . . depending on the severity of the basis for revocation."

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CMS imposed a one-year re-enrollment bar on Petitioner.  CMS Ex. 1 at 19.  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. 2675 at 9 (2016) ("our authority in a revocation case does not extend to reviewing the length of the reenrollment bar imposed by CMS.").  CMS properly imposed the minimum re-enrollment bar of one year mandated by the regulations.  42 C.F.R. § 424.535(c)(2).  CMS and I are both 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).

Moreover, to the extent Petitioner argues that revocation of his Medicare enrollment and billing privileges is inequitable under the circumstances presented, CMS's discretionary act to revoke a provider or supplier is not subject to review based on equity or mitigating circumstances.  Letantia Bussell, M.D., DAB No. 2196 at 13 (2008).  Rather, "the right to review of CMS's determination by an [administrative law judge] serves to determine whether CMS has the authority to revoke [the provider's or supplier's] Medicare billing privileges, not to substitute the [administrative law judge's] discretion about whether to revoke."  Id. (emphasis original).  Once CMS establishes a legal basis on which to proceed with a revocation, then the CMS determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  See id. at 10; see also Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff'd, 710 F. Supp. 2nd 167 (D. Mass. 2010) (if CMS establishes the regulatory elements necessary for revocation, an administrative law judge may not substitute his or her "discretion for that of CMS in determining whether revocation is appropriate under the circumstances").

VI.  Conclusion

I affirm CMS's revocation of Petitioner's Medicare enrollment and billing privileges.

1. On November 3, 2021, Petitioner submitted information that his medical license suspension was lifted in October 2021.  CMS Ex. 1 at 3.
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2. My findings of fact and conclusions of law are set forth in italics and bold.
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3. On December 8, 2020, the state board restricted Petitioner's license on an emergency basis.  CMS Ex. 1 at 3, 61-62.  On February 2, 2021, CMS revoked Petitioner's Medicare billing privileges, effective December 8, 2020, under 42 C.F.R. § 424.535(a)(1) and (a)(9).  Id. at 99-102.  Petitioner, through counsel, notified CMS of the emergency restriction on February 11, 2021.  On February 23, 2021, First Coast sent Petitioner a letter stating that his revocation is rescinded and there will be no break in billing privileges.  Id. at 97-98.  CMS determined that revocation was not appropriate because Petitioner was still authorized to practice medicine under the restriction.  Id. at 65.
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