Michael Turano, M.D., DAB CR5093 (2018)

DECISION

Michael Turano, M.D. (Petitioner or Dr. Turano), challenges the Centers for Medicare & Medicaid Services’ (CMS’s) reconsidered determination upholding the initial determination by National Government Services (NGS), a CMS administrative contractor, to revoke Dr. Turano’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) and 42 C.F.R. § 424.535(a)(9).  The undisputed evidence shows that Petitioner was re-enrolled in the Medicare program despite being subject to a re-enrollment bar from a previous revocation and failed to report to CMS, within 30 days, his 2012 felony conviction.  For these reasons, as explained more fully below, I conclude that CMS had a legal basis to revoke Dr. Turano’s Medicare enrollment and billing privileges.

I.  Background and Procedural History

Petitioner is a medical doctor licensed to practice medicine in the State of New York.  See, e.g., CMS Exhibit (Ex.) 6 at 3; CMS Ex. 9 at 1.  On November 22, 2011, Petitioner was indicted in the United States District Court for the Southern District of New York on

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five counts alleging that he, along with others, conspired to commit fraud, bribery, and money laundering in connection with a scheme to influence a member of the New York State Senate to take certain actions.  CMS Ex. 1.  On or about December 20, 2011, Petitioner agreed to plead guilty to Count Two of the indictment, Conspiracy to Commit Bribery in violation of 18 U.S.C. § 371.  CMS Ex. 2; see also CMS Ex. 4.  On or about April 26, 2012, the district court adjudicated Petitioner guilty of Count Two and dismissed the remaining counts of the indictment.  CMS Ex. 3 at 1.  The court sentenced Petitioner to two years in prison and ordered him to pay restitution in the amount of $223,534.00.  CMS Ex. 3 at 3; see also CMS Ex. 6 at 3.1

As a result of Petitioner’s conviction, on June 12, 2013, the State of New York Department of Health’s State Board for Professional Medical Conduct (State Medical Board) unanimously determined that Petitioner’s license to practice medicine should be revoked.  CMS Ex. 6; CMS Ex. 7 at 5.  On January 16, 2014, the State of New York Department of Health’s Administrative Review Board for Professional Medical Conduct (Administrative Review Board) affirmed the State Medical Board’s determination that Petitioner’s criminal conduct constituted professional misconduct that made him liable for disciplinary action.  CMS Ex. 7 at 7.  However, the Administrative Review Board overturned the determination to revoke Petitioner’s medical license.  Id.  Instead, the Administrative Review Board suspended Petitioner’s medical license for two years, stayed the suspension, and placed Petitioner on probation for five years.  Id. at 7, 10.

In a letter dated July 9, 2013, NGS notified Petitioner that his Medicare billing privileges were revoked, effective December 20, 2011, pursuant to 42 C.F.R. § 424.535(a)(3), due to his guilty plea.  CMS Ex. 10 at 1.  CMS’s revocation notice advised Petitioner that he was barred from re-enrolling in the Medicare Program for a period of three years, or until December 20, 2014.  Id. at 2.  Petitioner did not appeal CMS’s revocation determination.

In May 2014, Petitioner submitted an application to re-enroll in the Medicare program.  CMS Ex. 11.  Based on the information contained in his re-enrollment application, the application was approved and Petitioner was re-enrolled in the Medicare program.  CMS Ex. 15.

By letter dated June 22, 2016, NGS notified Petitioner that his Medicare billing privileges were revoked, effective April 26, 2012, pursuant to 42 C.F.R. §§ 424.535(a)(3) and (a)(9), due to his felony conviction and his failure to report

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the conviction as required by 42 C.F.R. § 424.516.  CMS Ex. 20 at 1.2 On July 11, 2016, Petitioner requested reconsideration of the June 22, 2016 revocation determination.  CMS Ex. 21.  NGS issued an unfavorable reconsidered determination, dated July 25, 2016, finding that Petitioner had not provided evidence that he fully complied with Medicare standards.  CMS Ex. 22 at 1-2.

Petitioner submitted a hearing request, which was docketed and assigned to a different administrative law judge, who remanded the case upon CMS’s request.  CMS Brief (Br.) at 11-12; Petitioner (P.) Br. at 2.  Thereafter, on October 4, 2016, NGS issued a revised initial determination, notifying Petitioner that his Medicare billing privileges were being revoked, effective November 3, 2016, for the following reasons:

42 CFR § 424.535(a)(1) – Noncompliance

On July 9, 2013, the Centers for Medicare & Medicaid Services (CMS) revoked your Medicare billing privileges pursuant to 42 C.F.R. 424.535(a)(3) because you were adjudged guilty of a felony for Conspiracy to Commit Bribery in the United States District Court, Southern District of New York on April 26, 2012.  The effective date of this revocation letter was December 20, 2011 and a subsequent enrollment bar of three years was placed on your enrollment.  Despite the expiration of your enrollment bar being in December 2014, you submitted and signed on May 1, 2014, an application to re-enroll into the Medicare program.

42 CFR § 424.535(a)(9) – Failure to Report

You were adjudged guilty of a felony for Conspiracy to Commit Bribery in the United States District Court, Southern District of New York on April 26, 2012.  Additionally, your New York medical license was revoked by the New York State Department of Health.  You did not notify CMS of these adverse legal actions, as required by 42 CFR § 424.516.

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

On your CMS 855 Medicare application to reactivate your billing privileges, you answered “yes” in section three of the application indicating that you had a “license revocation taken by NGS.” and that your “license [was] reinstated 1/16/14.”  However, you failed to additionally report that you were adjudged guilty of a felony for Conspiracy to Commit Bribery in the United States District Court, Southern District of New York on April 26, 2012.  A felony conviction is defined as a reportable final adverse action on the CMS 855 application and your omission of this action was false and misleading.

On a subsequent Change of Information application, you verified as true in section six that your only adverse legal action was a “license revocation taken by NGS.”  However, you again failed to report on this application that you were adjudged guilty of a felony for Conspiracy to Commit Bribery in the United States District Court, Southern District of New York on April 26, 2012.  A felony conviction is defined as a reportable final adverse action on the CMS 855 application and your omission of this action was false and misleading.  You additionally stated on this application that your medical license was reinstated on January 12, 2014 “without limitations or restrictions.”  However, your reinstatement by the New York State Department of Health was subject to terms and conditions.  Your assertion that your reinstatement was without limitations or restrictions was a false statement.

CMS Ex. 23 at 1-2 (bold type in original).  The revocation notice advised Petitioner that he was barred from re-enrolling in the Medicare Program for a period of three years.  Id. at 3.

Petitioner submitted a Corrective Action Plan (CAP) on November 3, 2016 and requested reconsideration of the revised revocation determination on December 2, 2016.  CMS Exs. 24, 25.  On January 5, 2017, CMS, through its Provider Enrollment & Oversight Group (and not an administrative contractor), issued an unfavorable reconsidered determination denying Petitioner’s CAP and upholding Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(1) and (9).  CMS Ex. 27.  CMS found Petitioner’s billing privileges were properly revoked pursuant to 42 C.F.R. § 424.535(a)(1) and (9) because he re-enrolled in the Medicare program prior to the end of his re-enrollment bar and because he failed to report both his license suspension and felony conviction within 30 days of each adverse legal action.  Id. at 8.  However, CMS found that Petitioner did disclose both his felony conviction and license suspension in a letter attached to his May 2014 submission and overturned the revocation pursuant to 42 C.F.R. § 424.535(a)(4).  Id.

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Petitioner requested a hearing before an administrative law judge by letter dated March 6, 2017.  The case was assigned to me, and I issued an Acknowledgment and Pre-Hearing Order dated March 21, 2017 (Pre-Hearing Order).  Pursuant to the Pre-Hearing Order, CMS filed a Pre-Hearing Brief and Motion for Summary Judgment (CMS Br.), along with 29 proposed exhibits (CMS Exs. 1-29), including the declaration of Eric Boyles (CMS Ex. 29).  Petitioner filed a Response in Opposition to CMS’s Motion for Summary Judgment (P. Response) and a Pre-Hearing Brief (P. Br.), along with 10 proposed exhibits (P. Exs. 1-10).  Petitioner also filed a witness list indicating he intended to subpoena certain NGS representatives identified only as Christina R., Chad, Laurie, Pamela, and Emily.  In addition, Petitioner filed a Request for Discovery, which I denied in an Order issued on October 19, 2017.

Petitioner did not object to CMS’s proposed exhibits.  Therefore, in the absence of objection, I admit into evidence CMS Exs. 1-29.  CMS objected to the admission of P. Exs. 1, 3, 4, 5, 9, and 10, contending that the exhibits constitute new evidence that was not presented to NGS at the reconsideration level of administrative review.3  CMS also objected to Petitioner’s listed witnesses Christina R., Chad, Laurie, Pamela, and Emily, contending that the information Petitioner sought to present via these witnesses is irrelevant to the sole issued presented, whether CMS had a legal basis to revoke Petitioner’s Medicare billing privileges.  Petitioner did not file a response to CMS’s Objections; therefore, Petitioner made no showing of good cause to admit P. Exs. 1, 3, 4, 5, 9, and 10.  Because Petitioner has not shown good cause for their admission, I exclude P. Exs. 1, 3, 4, 5, 9, and 10.  In the absence of objection, I admit into evidence P. Exs. 2, 6, 7, and 8.

CMS offered the written direct testimony of one witness.  See CMS Ex. 29.  Although Petitioner listed himself as a witness, and offered his affidavit (P. Affidavit), he did not mark the affidavit as an exhibit as directed in my Pre-Hearing Order.  Pre-Hearing Order ¶ 8.  Petitioner also filed a Request for Subpoenas for the witnesses listed previously, as well as additional witnesses.  Below, I explain why I deny Petitioner’s Request for Subpoenas.  In any event, neither party requested to cross-examine a witness.  As I informed the parties in my Pre-Hearing Order, a hearing is only necessary if a party requests to cross-examine a witness proposed by the opposing party.  Pre-Hearing Order ¶ 10.  Because an in-person hearing to cross-examine witnesses is not necessary, I decide

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this case based on the written record, without considering whether the standards for summary judgment are satisfied.

II.  Ruling Denying Pending Subpoena Request

On November 20, 2017, Petitioner filed a motion (P. Motion), pursuant to 42 C.F.R. § 498.58, requesting the issuance of a subpoena that would require CMS to produce the testimony of identified witnesses and documents.  Petitioner seeks the following:

(1) Subpoenas issued to the following individuals: Christina R., a CMS employee; Chad, Laurie, Pamela, and Emily, members of the CMS/NGS application team; all supervisors or senior staff of Christina R., Laurie and Chad; and Alexander Bateman and Andrew Garbarino, Petitioner’s former attorneys.

(2) Any documentary evidence such as audio tapes of telephone interviews between the listed parties and Petitioner.

(3) Internal records related to the process and decision for reinstatement of Petitioner’s Medicare provider privileges.

P. Motion at 2-5.  Petitioner asserts that the requested witnesses and documents are directly related to his claims of estoppel on a government agency and whether CMS’s decision to revoke Petitioner’s Medicare billing privileges was arbitrary and capricious.  Id. at 1.  On December 4, 2017, CMS filed its objections to the motion.

I may issue a subpoena for the production of documents or testimony at the request of a party, or sua sponte, but only if I conclude that a subpoena is “reasonably necessary for the full presentation of a case.”  42 C.F.R. § 498.58(a).  According to 42 C.F.R. § 498.58(c), a subpoena request must identify the witnesses or documents to be produced, describe their address or location with sufficient particularity to permit them to be found, and specify the pertinent facts the party expects to be established.

Petitioner’s subpoena requests fail to meet the stringent requirements for the issuance of a subpoena.  Specifically, Petitioner has not identified “the witnesses or documents to be produced” as required by 42 C.F.R. § 498.58(c)(1).  Petitioner lists most of the witnesses from whom he seeks testimony by their first names only, which does not meet the requirement that subpoena requests include “sufficient particularity to permit them to be found.”  42 C.F.R. § 498.58(c)(3).  Furthermore, Petitioner’s document request is not for specific documents that he knows CMS possesses, but rather he requests documents that CMS may possess regarding CMS’s involvement in Petitioner’s revocation.  See Civil Remedies Division Procedures (CRDP) § 12(c) (“[a] party may request the [administrative law judge] to issue a subpoena for the production of certain documents”).  Petitioner identifies broad categories of records and asks that CMS be compelled to

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identify and locate particular documents that fit within those categories.  Essentially, Petitioner seeks a subpoena to learn what documents CMS possesses, rather than obtain documents it knows CMS to possess.  Such a request is an attempt to obtain discovery.  However, “[d]iscovery in cases before the [Civil Remedies Division] is limited, and available only in some cases where provided by regulation.”  CRDP § 12(a).  A review of 42 C.F.R. Part 498, the procedures that govern supplier revocation cases, reveals that there are no provisions authorizing discovery.  See Oaks of Mid City Nursing and Rehab. Ctr., DAB No. 2375 at 32 (2011); 42 C.F.R. §§ 405.803(a), 424.545(a)(1).

Lastly, subpoenas may be issued only “if they are reasonably necessary for the full presentation of a case.”  42 C.F.R. § 498.58(a).  Petitioner asserts that he expects the requested witness testimony and documents to establish and support his arguments that CMS should be estopped from revoking his Medicare enrollment and billing privileges and that the decision to revoke was arbitrary and capricious.  However, this case turns on a narrow issue:  whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(1) and 42 C.F.R. § 424.535(a)(9).  The requested witness testimony (including that of his former attorneys) and documents, assuming they exist, are not necessary because they do not relate to the issue of whether CMS had a basis to revoke Dr. Turano’s Medicare billing privileges.  The evidence sought is relevant, if at all, to Petitioner’s equitable arguments; but, as discussed in more detail in section V.B.4, below, I do not have authority to set aside the revocation on equitable grounds.  Therefore, I deny Petitioner’s subpoena request and proceed to consider the merits of this case.

III.  Issue

Whether CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(1) and 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 Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

V.  Discussion

A. Statutory and Regulatory Background

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers. Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act

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§ 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).  The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.

In order to maintain Medicare billing privileges after being enrolled, a provider or supplier must meet the reporting requirements of 42 C.F.R. § 424.516.  Under 42 C.F.R. § 424.516(d)(1)(ii), physicians must report any adverse legal action to their Medicare contractor within 30 days.  CMS or its Medicare contractor may revoke an enrolled supplier’s Medicare enrollment and billing privileges for any of the reasons listed in 42 C.F.R. § 424.535.  Pursuant to 42 C.F.R. § 424.535(a)(1), CMS may revoke a supplier’s enrollment and billing privileges if the supplier is determined not to be in compliance with enrollment requirements.  Under 42 C.F.R. § 424.535(a)(9), CMS may revoke a supplier’s enrollment and billing privileges if the supplier did not comply with the reporting requirements specified in 42 C.F.R. § 424.516(d)(1)(ii) and (iii).

If CMS revokes a supplier’s Medicare billing privileges, the revocation becomes effective 30 days after CMS or one of its contractors mails the revocation notice to the supplier, subject to some exceptions not applicable in this case.  After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from reenrolling in the Medicare program for one to three years.  42 C.F.R. § 424.535(c).

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

1. CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(1) because he submitted a re-enrollment application prior to the end of his three-year re-enrollment bar.4

Under 42 C.F.R. § 424.535(a)(1), CMS may revoke a Medicare supplier’s enrollment and billing privileges if the supplier no longer meets the enrollment requirements for a supplier of its type and the supplier has not submitted a corrective action plan (CAP).  If a supplier’s billing privileges are revoked, the supplier is barred from participating in the Medicare program from the date of the revocation until the end of the re-enrollment bar.  42 C.F.R. § 424.535(c).  Therefore, a supplier cannot apply to re-enroll in the Medicare program until the re-enrollment bar has expired.  Common sense dictates that, if a supplier is subject to a re-enrollment bar, the supplier does not meet Medicare enrollment requirements.

Here, Petitioner concedes that his enrollment in the Medicare program was revoked, pursuant to 42 C.F.R. § 424.535(a)(3), effective December 20, 2011.  P. Brief at 1-2; see CMS Ex. 10.  Petitioner’s revocation was subject to a re-enrollment bar of three years,

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which expired on December 20, 2014.  See CMS Ex. 10 at 2.  Petitioner further concedes that he applied for re-enrollment in the Medicare program in May 2014, during the re-enrollment bar.  P. Brief at 3-5.  Based on the information provided in Petitioner’s enrollment application (which did not state that he was subject to a re-enrollment bar), his application was approved and he was granted billing privileges.  CMS Ex. 11; CMS Ex. 15.

Petitioner spends much of his pre-hearing brief arguing that the error was “insignificant” due to an “error in timing.”  See, e.g., P. Br. at 3.  Petitioner minimizes his noncompliance by asserting his actions are distinguishable from other cases in which CMS focuses on fraud and abuse of billing.  P. Br. at 3-4.  Contrary to Petitioner’s arguments, I find that Petitioner’s re-enrollment during a re-enrollment bar represents significant noncompliance.  Because of Petitioner’s noncompliance, Petitioner gained access to and reimbursement from the Medicare Trust Fund during a seven-month period when he was barred from doing so, as he well knew.  While Petitioner’s actions perhaps do not rise to the level of fraud, they can be analogized to abuse of billing.5  Petitioner’s arguments attempting to shift blame to CMS’s contractor are misguided and to no avail.  See P. Br. at 5-6.

To the contrary, persons “who deal with the government are expected to know the law . . . .”  John Hartman, D.O., DAB No. 2564 at 3 (2014), citing Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 63 (1984); see also 42 C.F.R. § 424.516(a)(2) (requiring suppliers to certify that they meet all Medicare requirements).  “As courts and the Board have recognized, Medicare providers and suppliers, as participants in the program, have a duty to familiarize themselves with Medicare requirements.”  Richard Weinberger, M.D., and Barbara Vizy, M.D., DAB No. 2823 at 21 (2017) (holding it was not reasonable for Petitioners to rely solely on verbal advice from the administrative contractor’s staff).  Petitioner cannot avoid responsibility by deflecting blame to CMS’s contractor.6  The Medicare regulations set forth the

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requirements for enrolling in the Medicare program and clearly state that a person subject to a re-enrollment bar may not enroll in the program until the end of the bar.

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)(1).

2. CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9) because he failed to report to CMS or its contractor his felony conviction within 30 days.

“CMS may revoke a currently enrolled . . . supplier’s Medicare billing privileges” where “the supplier did not comply with the reporting requirements specified in § 424.516(d)(1)(ii) and (iii) of this subpart.”  42 C.F.R. § 424.535(a)(9).  These reporting requirements mandate that a supplier report to the appropriate CMS contractor “[a]ny adverse legal action” within 30 days.  42 C.F.R. § 424.516(d)(1)(ii).  A “final adverse action” includes, as relevant here, a “suspension or revocation of a license to provide health care by any State licensing authority” and “a conviction of a Federal or State felony offense . . . within the last 10 years preceding enrollment, revalidation, or re-enrollment.”  42 C.F.R. § 424.502.

Petitioner does not contend that he reported his felony conviction to CMS or its contractor within 30 days of the event (on or about April 26, 2012).  Rather, Petitioner asserts that “principles of fundamental fairness” forbid revoking his enrollment in the Medicare program a second time based on what he characterizes as “the same facts and circumstances” arising from his 2013 revocation.7  P. Br. at 6.  However, the revocation of Petitioner’s billing privileges presently before me is not based on the same facts and circumstances as the 2013 revocation.  The earlier revocation was based on the fact of Petitioner’s conviction in 2012 and was taken based on 42 C.F.R. § 424.535(a)(3).  See CMS Ex. 10.  Petitioner’s failure to report that conviction is a separate ground for revocation under 42 C.F.R. § 424.535(a)(9).  Petitioner had the obligation, per the regulations, to report his conviction within 30 days and he failed to do so.  Therefore, he violated 42 C.F.R. § 424.535(a)(9), and CMS had a legal basis to revoke him on that basis.  There is no regulatory requirement that CMS revoke a supplier within a certain time frame.  See Horace Bledsoe, M.D. and Bledsoe Family Medicine, DAB No. 2753 at 9 (2016) (“the Medicare statute and regulations do not require CMS to take action within a specified time frame after discovering information about a Medicare enrollee’s conviction”).  Nor is it a defense that CMS’s contractor may have already been aware that Petitioner had been convicted of a felony offense.  See P. Br. at 7.  The regulation places the burden upon the participating supplier to report any adverse legal action.  42 C.F.R.

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§ 424.516(d)(1)(ii).  “There are no exceptions to the requirement to report.”  Phyllis Barson, M.D., DAB CR2510 at 7 (2012).

Moreover, even if I were sympathetic to Petitioner’s arguments criticizing the decision to revoke his Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) based on his failure to report his conviction, I am mindful that administrative law judges and the Departmental Appeals Board (DAB) “are authorized to review only whether CMS had a legal basis to revoke Petitioner’s Medicare billing privileges, not CMS’s exercise of discretion to do so.”  Lorrie Laurel, PT, DAB No. 2524 at 7 (2013), citing Letantia Bussell, M.D., DAB No 2196 at 12-13 (2008); see 42 C.F.R. § 498.3.  Thus, 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 Letantia Bussell, M.D., DAB No. 2196 at 10; see 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) (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 all the circumstances”).

CMS also argues that it is authorized to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9) because he failed to report his medical license revocation and subsequent suspension within 30 days as required by the regulations.  I disagree with this contention.  The evidence establishes that Petitioner’s medical license was revoked on June 12, 2013.  CMS Ex. 6; CMS Ex. 7 at 5.  CMS revoked Petitioner’s Medicare enrollment and billing privileges on July 9, 2013.  CMS Ex. 10.  Thus, CMS revoked Petitioner’s Medicare enrollment 27 days after Petitioner’s medical license was revoked.  When CMS revoked Petitioner’s Medicare enrollment, his obligation to report his state medical license revocation within 30 days ended.8  Furthermore, the Administrative Review Board issued its order reversing the revocation of Petitioner’s license and instead imposing a two-year suspension during the time Petitioner’s Medicare enrollment was revoked.  Because Petitioner was not an enrolled Medicare supplier at the time, he had no obligation to notify CMS or its contractor of his medical license suspension.  Therefore, I find that CMS erred in revoking Petitioner’s Medicare enrollment for failure to report the adverse legal actions related to his state medical license.

In summary, I conclude that CMS had a legal basis to revoke Petitioner’s enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) because he failed to report his felony conviction within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii).  Petitioner’s

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failure to report his license revocation and suspension does not represent a violation of 42 C.F.R. § 424.535(a)(9).

3. I do not have authority to order CMS to re-enroll Petitioner in the Medicare program on the ground that CMS’s determination to revoke his enrollment is arbitrary and capricious.

Petitioner asserts that I should declare CMS’s determination to revoke Petitioner from the Medicare program unlawful on the ground that the determination was arbitrary and capricious.  Petitioner contends that NGS’s October 4, 2016 determination to revoke his enrollment was arbitrary and capricious because NGS had the opportunity to revoke him in 2013 for any other infraction arising from his 2011 conviction and chose not to do so.  P. Br. at 7.

However, in NMS Healthcare of Hagerstown, the Board explained:

The arbitrary and capricious standard . . . is an Administrative Procedure Act (APA) standard for court review of final agency actions set forth at 5 U.S.C. § 706.  The [administrative law judges] and the Board are adjudicators in an administrative appeal process, not courts, and neither CMS’s determination nor the [administrative law judge] Decision is a final agency action in matters subject to appeal under Part 498.  See 42 C.F.R. § 498.90 (providing that the Board decision is the final agency action that may be appealed to federal court). . . . Thus, there is no merit to [petitioner’s] argument that the [administrative law judge] was required to consider whether CMS’s actions were arbitrary and capricious.

NMS Healthcare of Hagerstown, DAB No. 2603 at 6 (2014).  Therefore, whether CMS’s decision to revoke Petitioner’s Medicare enrollment and billing privileges was arbitrary and capricious is not an issue I may hear and decide.

4. I do not have authority to set aside the revocation of Petitioner’s Medicare enrollment and billing privileges based on his equitable arguments.

Petitioner argues that CMS acted unfairly and unreasonably in approving his re-enrollment application to the Medicare program while he was subject to a re-enrollment bar.  Petitioner argues that, due to CMS’s misconduct, he opened a medical office and began booking patients, believing that he was approved.  Petitioner asserts that his approval “came after multiple correspondence and telephone communications over a four-month review.”  Petitioner contends that due to CMS’s misconduct in approving his

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application during a re-enrollment bar, CMS should be estopped from taking the revocation action.  P. Br. at 11-12.

Whether the government can ever be estopped from enforcing valid regulations based on the misrepresentations of government employees or their agents is highly questionable.  See Heckler v. Cmty. Health Servs. of Crawford Cnty., 467 U.S. 51, 63 (1984); Schweiker v. Hansen, 450 U.S. 785 (1981).  In any event, on the present facts, I would find that Petitioner could not reasonably rely on the alleged advice.  As discussed above, Petitioner knew, or should have known, that the re-enrollment bar to which he was subject had not expired at the time he applied to re-enroll in Medicare.  As such, it was not reasonable to rely on advice to the contrary.  Indeed, Petitioner’s own conduct in failing to disclose that he was subject to a re-enrollment bar can be viewed as misleading to an equal extent with any incorrect or incomplete advice provided by CMS or its contractor.  By applying to re-enroll before his re-enrollment bar expired and then claiming detrimental reliance based on the contractor’s omission to discover that the bar was still in place suggest that Petitioner, at a minimum, is attempting to benefit from sharp practice.

Furthermore, to the extent Petitioner’s arguments raise equitable considerations beyond estoppel, those arguments are unavailing.  I do not have authority to grant equitable relief based on Petitioner’s general contentions that the actions of CMS and its administrative contractor violated “principles of fundamental fairness” (P. Br. at 6).  See US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the [administrative law judge] nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements”).

VI.  Conclusion

For the foregoing reasons, I affirm that CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) and (9).  Petitioner’s Medicare enrollment and billing privileges are subject to revocation pursuant to 42 C.F.R. § 424.535(a)(9) based on his failure to report his felony conviction.  However, I find that revocation pursuant to 42 C.F.R. § 424.535(a)(9) is not proper based on Petitioner’s failure to report the adverse actions on his medical license because he was not an enrolled supplier at the time those actions were taken.

• 1. CMS Ex. 3 is a copy of the court’s judgment in Dr. Turano’s case. The exhibit is missing even-numbered pages 2, 4, and 6 (as numbered in the original); it appears that the missing page 2 would recite the term of Dr. Turano’s imprisonment. In any event, there is no dispute that Dr. Turano’s sentence included imprisonment. See Petitioner’s Response in Opposition to CMS’s Motion for Summary Judgment at 1.
• 2. The June 22, 2016 revocation notice states that Dr. Turano was convicted on April 26, 2012. CMS Ex. 20 at 1. The Judgment in a Criminal Case (CMS Ex. 3) recites that “4/26/2012” is the “Date of Imposition of Judgment.” CMS Ex. 3 at 1. However, the U.S. District Judge signed the judgment on May 1, 2012, and it was stamped as filed on May 2, 2012. Id. Thus, it is not entirely clear that April 26, 2012, is the date of Dr. Turano’s conviction. Nevertheless, because NGS reopened and revised the June 22, 2016 notice and imposed a new revocation date of November 3, 2016, the uncertainty regarding the date of conviction is not material.
• 3. The regulations governing provider and supplier enrollment appeals provide that if a provider or supplier submits evidence to the administrative law judge that was not previously submitted, the administrative law judge will “determine whether the provider or supplier has good cause for submitting the evidence for the first time at the [administrative law judge] level.” 42 C.F.R. § 498.56(e)(1). If the administrative law judge finds good cause, the evidence must be admitted and may be considered; however, if the administrative law judge does not find good cause, the evidence must be excluded. 42 C.F.R. § 498.56(e)(2).
• 4. My numbered findings of fact/conclusions of law appear in bold italic type.
• 5. Pursuant to 42 C.F.R. § 424.535(a)(8)(ii), abusive billing occurs when CMS determines that a supplier has engaged in a pattern of submitting claims that do not meet Medicare requirements. It could be argued that claims submitted during a re-enrollment bar do not meet Medicare requirements. Moreover, I note that Petitioner’s cover letter to his re-enrollment application nowhere acknowledges that his Medicare billing privileges were previously revoked or that he was subject to a re-enrollment bar. See CMS Ex. 11 at 2-3.
• 6. Nor may Petitioner avoid responsibility by shifting blame to his former attorneys. See P. Resp. at 13-14; P. Affidavit. As the administrative law judge held in George E. Anderson, M.D., DAB CR4631 at 12 (2016), a supplier “cannot avoid responsibility for failure to comply with reporting requirements by blaming his agent.” See also Michael Reiner, M.D., DAB CR2547 at 2 (2012) (explaining that actions of a party’s attorney are deemed to be within the party’s control).
• 7. Petitioner’s Medicare enrollment was revoked in 2013 pursuant to 42 C.F.R. § 424.535(a)(3) due to his 2012 conviction for conspiracy to commit bribery. CMS Ex. 10.
• 8. As part of the Medicare enrollment application process, suppliers agree to report “Final Adverse Actions” within 30 days, among other requirements. See, e.g., CMS Ex. 11 at 33.