Jamshid Niknam, M.D., DAB CR5287 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS) revoked the Medicare enrollment and billing privileges of Jamshid Niknam, M.D. (Dr. Niknam or Petitioner) because Dr. Niknam filed Medicare claims for services provided to individuals who were deceased on the dates on which the services were allegedly provided.  Dr. Niknam requested a hearing to dispute the revocation.  Because there is no dispute that Petitioner erroneously filed 111 Medicare claims for services that were never provided to the deceased beneficiaries named in each claim, I deny Petitioner’s motion for summary judgment, grant CMS’s motion for summary judgment, and affirm the revocation of Petitioner’s Medicare enrollment and billing privileges.

I. Background and Procedural History

Dr. Niknam was enrolled in the Medicare program as a physician, which means that he was a “supplier” for Medicare program purposes. CMS Exhibit (Ex.) 1; 42 U.S.C. § 1395x(d).

In an October 20, 2016 initial determination, CMS revoked Dr. Niknam’s Medicare billing privileges, effective November 19, 2016, for the following reason:

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42 CFR §424.535(a)(8)(i) – Abuse of Billing Privileges
Data analysis conducted on claims billed by Jamshid Niknam, for dates of service between January 6, 2011, and June 6, 2016, revealed that Jamshid Niknam billed one hundred fifteen (115) claims for services provided to sixty-nine (69) unique Medicare beneficiaries who were deceased on the purported date of service.  See Enclosure A.

CMS Ex. 4 at 2 (emphasis in original).  CMS barred Dr. Niknam from reenrolling in the Medicare program for three years.  CMS Ex. 4 at 3.  Finally, CMS attached a chart summarizing information concerning the 115 claims that CMS referenced in its initial determination.  CMS Ex. 4 at 4-15.

Dr. Niknam requested reconsideration of the revocation in which he stated:

We respectfully submit that the decision to revoke Dr. Niknam’s Medicare privileges is unfounded; the claims at issue were inadvertently billed in good faith by an outside billing company, all of the claims were denied and no payments were made, and upon receipt of the denials, the billers promptly corrected the good faith clerical errors which caused the issues in the first place.

CMS Ex. 5 at 1.  Dr. Niknam also said:

[I]t appears that CMS has itself made a clerical error.  Three of the patients (with 4 associated claims) listed in CMS’ letter were never in fact patients of Dr. Niknam’s.  Therefore, Dr. Niknam disputes the fact that he submitted 115 claims corresponding to 69 patients.  His review of the records shows that he actually submitted 111 mistaken claims corresponding to 66 patients.

CMS Ex. 5 at 2 n.2.  Dr. Niknam also argued that the erroneous claims only constituted 0.14% of Dr. Niknam’s claims during the period of time that CMS reviewed and that such a small percentage did not constitute a pattern of abusive billing.  CMS Ex. 5 at 2.  Dr. Niknam submitted with the reconsideration request a chart covering all of the claims identified by CMS.  CMS Ex. 5 at 6-16.  Petitioner stated that all of the claims involved an inadvertent error.  CMS Ex. 5 at 6-16.  Petitioner also submitted the medical records for the beneficiaries related to each claim.  CMS Ex. 6 at 2.

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In a February 8, 2017 reconsidered determination, a CMS hearing officer upheld the revocation.  CMS Ex. 6.  The hearing officer stated:

Negligent submission of multiple erroneous claims for services that could not have been delivered to beneficiaries amounts to abuse. While Dr. Niknam argues that it was not he who submitted the claims in error, but rather his billing service, it is ultimately the responsibility of the provider to ensure that the claims submitted on his behalf are submitted correctly and appropriately. Therefore, it is not a defense to a revocation action for abuse of billing privileges that the false claims were due to accidental billing errors.  Additionally, the billing errors were not isolated. For purposes of revocation under 42 C.F.R. § 424.535(a)(8)(i), CMS finds an abuse of billing when three or more claims[]have been submitted to Medicare for services that could not have been furnished to the specific individuals identified on the claims on the dates of the claimed services.  Here, Dr. Niknam admits, by stating “inadvertent error” or “billing error” in response to multiple claims, that he has submitted at least three claims to Medicare in error.

CMS Ex. 6 at 3.

Petitioner timely requested administrative law judge (ALJ) review.  The case was assigned to Judge Carolyn Cozad Hughes for hearing and decision.  Judge Hughes issued an Acknowledgment and Pre-hearing Order (Order).  The parties filed prehearing submissions in conformance with the Order.  On November 20, 2018, I was assigned to hear and decide this case.

In its prehearing exchange, CMS filed a brief in which it moved for summary judgment (CMS Br.), submitted six exhibits (CMS Exs. 1-6), and explicitly stated that it had no witnesses to offer.  Petitioner submitted a brief (P. Br.) in opposition to summary judgment and in support of summary judgment in favor of Petitioner, and nine exhibits (P. Exs. A-I), which included written direct testimony from two witnesses (P. Exs. H, I).  Petitioner also listed himself as a witness, but, contrary to the Order, did not file written direct testimony.  P. Br. at 24.  CMS filed a reply to Petitioner’s brief and objected to a number of Petitioner’s exhibits.  CMS did not request to cross-examine Petitioner’s witnesses.

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II. Issues

1. Whether summary judgment is appropriate.

2. Whether CMS had a legitimate basis for revoking Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(i).

III. Jurisdiction

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

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

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to establish regulations for enrolling providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  Suppliers must enroll in the Medicare program and receive a billing number in order to obtain payment for services rendered to Medicare beneficiaries.  42 C.F.R. § 424.505.

The regulations delegate to CMS the authority to revoke the enrollment and billing privileges of suppliers.  42 C.F.R. § 424.535.  CMS or a Medicare contractor may revoke a supplier’s Medicare enrollment and billing privileges for any of the reasons listed in 42 C.F.R. § 424.535(a).  42 C.F.R. §§ 405.800(b)(1), 424.535(a).  If CMS revokes a supplier’s Medicare enrollment and 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.  42 C.F.R. §§ 405.800(b)(2), 424.535(g).  After CMS revokes a supplier’s enrollment and billing privileges, CMS bars the supplier from re-enrolling in the Medicare program for a minimum of one year, but no more than three years.  42 C.F.R. § 424.535(c).

1. Summary judgment in CMS’s favor is appropriate.

When appropriate, an ALJ may decide a case arising under 42 C.F.R. part 498 by summary judgment.  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 172 (6th Cir. 2004) (citing Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 749-50 (6th Cir. 2004)); see also Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449-50 (7th Cir. 2010); Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010).  “Matters presented to the ALJ for summary judgment will follow Rule 56 of the Federal Rules of Civil Procedure and federal case law . . . .”  Civil Remedies Division Procedures § 19(a).

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As stated by the United States Supreme Court:

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.  By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

To determine whether there are genuine issues of material fact for an in-person hearing, the ALJ must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (citations omitted).  To defeat a well-pleaded motion for summary judgment, the non-moving party must come forward with some evidence of a dispute concerning a material fact; mere denials in its pleadings are not sufficient.  Id.

Petitioner does not present a genuine dispute as to the material facts necessary to uphold the basis for revocation.  Specifically, Petitioner admits that he filed 111 claims for services in which he, through his billing agents, erroneously identified beneficiaries who were deceased on the dates of services.   CMS Ex. 5 at 2 n.2, 3, 6-16.  Further, Petitioner admits that items 1 through 7 of CMS’s statement of undisputed facts are true.  P. Br. at 4; CMS Br. at 2-4.  These include the following factual statements:

3. On November 10, 2016, through counsel, Petitioner submitted a request for reconsideration to CMS.  CMS Ex. 5.  In his November 10 request, Petitioner admitted that billing for deceased patients was “in error” and due to “inadvertent clerical errors made by the billers in good faith.”  Id.  Petitioner also stated that he had implemented a series of corrective actions to ensure these clerical billing errors do not occur in the future.  Id.

4. Petitioner also submitted Exhibit A with his November 10 request, a table of the claims that CMS had identified in the revocation letter, with Petitioner’s annotations that detailed

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the specific billing errors that he made when he submitted the claims.  Id.  Except for four of the identified claims for three beneficiaries, Petitioner did not dispute the list of inaccurate claims that CMS provided in its October 20, 2016 letter.  Id.

5. Petitioner explained that the identified claims resulted from accidental billing errors falling into one of four categories:  (a) errors due to similarly named patients; (b) errors due to similar account numbers; (c) errors due to similar dates of service; and (d) errors due to mistakes by billers in reading spreadsheets.  Id.

CMS Br. at 3.

For purposes of summary judgment, I accept as true the facts that Petitioner asserts are undisputed in this case.  P. Br. at 2-8 (Numbered Findings 1-13).  In particular, this includes that “the correct figures are 111 claims for 66 unique Medicare beneficiaries” and that Petitioner “never intentionally billed Medicare for deceased beneficiaries but his third-party billing company inadvertently made date entry errors by entering billing data into the wrong patient’s account or by typing the wrong date of service.”  P. Br. at 5.  However, I do not accept as true conclusions that Petitioner draws about the undisputed facts in this case, such as:  “Fundamentally these represent nothing more than mere typographical errors.  They do not re[pre]sent billing for services rendered to deceased patients.”  P. Br. at 5.  I also do not accept as true Petitioner’s application of law to the facts in this case, which are listed as undisputed facts.  P. Br. at 8-10.

I also accept as true, for summary judgment purposes, the factual statements of Petitioner’s expert witnesses.  In regard to Demosthenes A. Halcoussis, Ph.D., I accept that he mathematically calculated Petitioner’s claim error rate during the period of time consistent with claims at issue in this case to be 0.15%, and it is his opinion that the error rate is consistent with random errors.  P. Ex. I at 6.  In regard to Dona Hall, I accept for purposes of summary judgment her opinion that the most common billing errors for claims include:

(1) typing the wrong date of service, (2) typing the wrong diagnosis code, (3) entering the wrong CPT code, (4) posting the claim to the wrong patient by incorrect transcription of the beneficiary’s HICN, the billing account number, confusing a patient with a patient with a similar name or the same name.  All these sorts of typographical errors occurred in the 111 claims cited by CMS as giving rise to cause for revocation.

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P. Ex. H at 4.  However, I do not accept as true Ms. Hall’s application of the facts to the law or her interpretation of the law.

CMS objected to a number of Petitioner’s exhibits, including the written direct testimony of Petitioner’s two witnesses.  For purposes of summary judgment, I will not exclude Petitioner’s exhibits from the record.  Therefore, I admit all of the parties’ proposed exhibits into the record.  However, as indicated above, the undisputed facts in this case are sufficient to affirm the revocation as a matter of law.

2. There is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(i), because Petitioner authorized the filing of 111 Medicare claims for physician services that were provided to beneficiaries who were deceased on the claimed dates that services were rendered.

CMS revoked Petitioner’s enrollment and billing privileges based on 42 C.F.R. § 424.535(a)(8)(i), which permits revocation when the provider or supplier submits a claim or claims for services that could not have been furnished to a specific individual on the date of service.  The regulatory provision reads as follows:

(i) The provider or supplier submits a claim or claims for services that could not have been furnished to a specific individual on the date of service.  These instances include but are not limited to the following situations:

(A)  Where the beneficiary is deceased.
(B)  The directing physician or beneficiary is not in the state or country when services were furnished.
(C)  When the equipment necessary for testing is not present where the testing is said to have occurred.

42 C.F.R. § 424.535(a)(8)(i).  It is important to note for the discussion that follows that § 424.535(a)(8)(i) was originally promulgated as the sole provision in § 424.535(a)(8).  See 73 Fed. Reg. 36,448, 36,461 (June 27, 2008).  However, when § 424.535(a)(8)(ii) was added, the original text of § 424.535(a)(8) became § 424.535(a)(8)(i).  79 Fed. Reg. 72,500, 72,520 (Dec. 5, 2014).  Therefore, all references to § 424.535(a)(8) in the 2008 preamble to the final rule as well as case decisions before 2015 relate to the text that is now located at § 424.535(a)(8)(i).

The Departmental Appeals Board (DAB) has interpreted § 424.535(a)(8)(i) to mean the following:

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We conclude that the plain language of the regulation sufficed to notify Petitioners that the submission of a claim for services that could not have been provided to the specific individual identified in the claim on the date of services was an abuse of billing privileges that could lead to revocation, and the preamble provided notice that the submission of at least three such claims would not be viewed as merely accidental.

John P. McDonough III, Ph.D., DAB No. 2728 at 8 (2016) (emphasis added); see also Patrick Brueggeman, D.P.M., DAB No. 2725 at 11 (2016). As further clarified by the DAB:

The improper claims to which [§ 424.535(a)(8)] applies are not all erroneous claims but claims for services that could not have been provided as claimed, that is to say that are “impossible” in that the identified beneficiary could not have been treated by the identified provider/supplier on the specific dates given.

John M. Shimko, D.P.M., DAB No. 2689 at 7 (2016).

It is undisputed in this case that 111 claims were filed on Petitioner’s behalf asserting that Petitioner provided services to beneficiaries who, on the date of service listed in each claim, were deceased.  The regulation expressly states that such a situation is a basis for revocation.  42 C.F.R. § 424.535(a)(8)(i)(A).  Further, these admissions demonstrate that many claims were filed for services that could not have been provided to the beneficiary identified in the claim on the date of service listed on the claim.  Therefore, CMS had a legitimate basis to revoke Petitioner under the plain language of the regulation.

3. It is no defense to a revocation action for abuse of billing privileges under 42 C.F.R. § 424.535(a)(8)(i), that the noncompliant claims were due to clerical errors and that Petitioner had a low rate of error in his claims.

Petitioner argues that the 111 claims that CMS identified contained accidental errors attributable to Petitioner’s billing agents, that those claims represent a tiny fraction of the claims Petitioner submitted to CMS, and that CMS has failed to apply standards from the preamble to the final rule as well as the factors set forth in § 424.535(a)(8)(ii) to determine a pattern or practice of abusive billing.  P. Br. at 1-2, 15, 19-22, 24; CMS Ex. 5 at 2-4.

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Petitioner’s arguments do not provide a defense to revocation.  The DAB has consistently interpreted § 424.535(a)(8)(i) as not requiring proof as to the intent of a provider or supplier with regard to the incorrect billing.  The fact that the claims were billed improperly due to clerical errors is not a defense under § 424.535(a)(8).  See generally, Louis J. Gaefke, D.P.M., DAB No. 2554 at 6-10 (2013); Brueggeman, DAB No. 2725 at 8.  The regulation does not require CMS to demonstrate that Petitioner intended to defraud Medicare before it may revoke Petitioner’s billing privileges.  Rather, the regulation authorizes CMS to revoke the billing privileges of a supplier when that supplier submits “a claim or claims for services that could not have been furnished to a specific individual on the date of service.”  Howard B. Reife, D.P.M., DAB No. 2527 at 5 (2013); see also id. at6, 8.  Petitioner is responsible under the regulations for ensuring that his submitted claims comply with Medicare requirements.  As the DAB summarized:

Petitioners also mistakenly assert that CMS must demonstrate that abusive billing practices by a supplier or provider are fraudulent or dishonest before it may revoke Medicare billing privileges.  The Board has long held, most recently in John P. McDonough III, Ph.D., Geriatric Psychological Specialists, and GPS II, LLC, DAB No. 2728 (2016), that the plain language of the regulation does not require CMS to establish fraudulent or dishonest intent to revoke a supplier’s billing privileges under this section and that “[t]he regulatory language also does not provide any exception for inadvertent or accidental billing errors.”  McDonough at 7 (citing Louis J. Gaefke, D.P.M., DAB No. 2554, at 7 (2013)).  The Board has rejected the contention that a supplier who has submitted claims for “services that could not have been furnished to a specific individual on the date of service” under section 424.535(a)(8) must also be proven to have done so intentionally.  Patrick Brueggeman, D.P.M., DAB No. 2725, at 8 (2016).  The Board further stated in Brueggeman, “‘[n]othing in either the preamble language or the regulation requires CMS to establish that the improper claims were not accidental’ or ‘that a supplier’s explanation for the improper claims (i.e., similarities among patient names or between the incorrect procedure code used in the claims and the correct code that would have yielded lower reimbursement) was the result of a carefully concocted story or scheme to cover improper behavior by a supplier acting to defraud Medicare.’” DAB No. 2725, at 11, quoting Gaefke at 9-10 and Howard B. Reife, D.P.M., DAB No. 2527, at 6 (2013).  Similarly, the Board also recently “rejected . . . the idea that a supplier’s

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intent in submitting improper claims of the kind described in section 424.535(a)(8) is relevant in a revocation case based on that subsection.”  John M. Shimko, D.P.M., DAB No. 2689, at 5-6 (2016).

Access Foot Care, Inc., & Robert Metnick, D.P.M., DAB No. 2752 at 10 (2016).

Petitioner also argues that the claims identified by CMS in this case represent an insufficient number of claims on which to base a revocation because they are nothing more than evidence of sporadic erroneous billing and not a pattern of abusive billing.  I note first that Petitioner’s billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(8)(i), a provision that permits revocation when a supplier submits a claim or claims for services that could not have been furnished to a specific individual on the date of service, and not under 42 C.F.R. § 424.535(a)(8)(ii), which authorizes revocation when a supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  

The intended application of 42 C.F.R. § 424.535(a)(8)(i) is well-established, and envisions scenarios in which a small number of claims can form the basis for revocation.  The preamble to the final rule provides the following guidance regarding its intended uses:

CMS, not a Medicare contractor, will make the determination for revocation under the authority at § 424.535(a)(8).  We will direct contractors to use this basis of revocation after identifying providers or suppliers that have these billing issues . . . .  This revocation authority is not intended to be used for isolated occurrences or accidental billing errors.  Rather, this basis for revocation is directed at providers and suppliers who are engaging in a pattern of improper billing . . . .  We believe that it is both appropriate and necessary that we have the ability to revoke billing privileges when services could not have been furnished by a provider or supplier.  We recognize the impact that this revocation has, and a revocation will not be issued unless sufficient evidence demonstrates abusive billing patterns.  Accordingly, we will not revoke billing privileges under § 424.535(a)(8) unless there are multiple instances, at least three, where abusive billing practices have taken place . . . .  In conclusion, we believe that providers and suppliers are responsible for the claims they submit or the claims submitted on their behalf.  We believe that it is essential that providers and suppliers

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take the necessary steps to ensure they are billing appropriately for services furnished to Medicare beneficiaries.

73 Fed. Reg. 36,448, 36,455 (June 27, 2008).  As indicated above, the preamble states that this revocation authority is not intended to be used for isolated occurrences or accidental billing errors, but indicates that CMS can consider there to be no accident when there are as little as three instances.  Brueggeman, DAB No. 2725 at 10.  I note that Petitioner has submitted 111 instances of erroneous claims in this case, the sheer number of which is sufficient to uphold the revocation.  See Gaefke, DAB No. 2554 at 8.  The preamble also emphasizes the necessity of providing CMS the ability “to revoke billing privileges when services could not have been furnished by a . . . supplier” and concludes that providers and suppliers are ultimately responsible for the claims they submit.  73 Fed. Reg. at 36,455.  Therefore, even assuming that a minimum of three instances is required for revocation, despite the regulatory text that only requires a single claim, there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(i).

Petitioner asserted that CMS applied a strict rule of automatic revocation based on three or more billings for deceased patients.  P. Br. at 18.  However, the record does not show that CMS considered revocation of Petitioner to be mandatory after it learned of the erroneous claims Petitioner filed.  As the DAB stated:

Neither the preamble to the Final Rule nor the plain language of the regulation establishes a strict liability standard for improper billing or creates an exception for accidental billing.  To the contrary, the Final Rule establishes that CMS and its contractors will exercise discretion in determining whether revocation for improper billing is appropriate.

The preamble to the Final Rule does provide guidance as to what may show a pattern of abusive billings by stating that CMS will not revoke Medicare billing privileges for improper billing unless the improper billing consists of “multiple instances” of abusive billing.  The preamble further explains that improper billing is abusive if, for example (as is the case here), “a provider or supplier submits a claim or claims for services that could not have been furnished to a beneficiary.”  73 Fed. Reg. at 35,455, 36,457.  The preamble explains that this policy arises from CMS’s experience with “numerous examples of situations where a physician or other practitioner has billed for services furnished to beneficiaries that are undeliverable, including but not limited to situations where the beneficiary was deceased.”  Id.  While Petitioners may

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disagree with the way CMS exercised its discretion in this case, it is not true that CMS or the ALJ applied a strict liability standard when analyzing Petitioners’ abusive billing.

. . .

[R]evocation is not a mandatory consequence but a measure which CMS may take after exercising discretion.  Here, it was not improper for CMS to determine that Petitioners’ multiple improper billings were abusive, and the ALJ did not err when he affirmed CMS’s determination based upon the exercise of its discretion pursuant to the policy set forth and published in the Preamble to the Final Rule.

Access Foot Care, DAB No. 2752 at 9-10 (emphasis in original).

Further, Petitioner’s argument, that he filed a very low percentage of claims that were erroneous, has been rejected by the DAB multiple times.  Brueggeman, DAB No. 2725 at 11-12; Shimko, DAB No. 2689 at 9-10; Reife, DAB No. 2527 at 7.

Petitioner also argues that CMS did not properly weigh various information before deciding to revoke.  However, CMS’s discretionary decision to revoke a supplier’s billing privileges is not reviewable by the ALJ.  Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (“the right to review of CMS’s determination by an ALJ serves to determine whether CMS had the authority to revoke . . . not to substitute the ALJ’s discretion about whether to revoke.”).  Rather, “[t]he ALJ’s review of CMS’s revocation . . . is thus limited to whether CMS had established a legal basis for its actions.”  Id.  Therefore, to the extent that Petitioner urges me to reverse the revocation because the Office of the Inspector General recommended that CMS focus its efforts on providers and suppliers who had over 100 unpaid claims each year, that recommendation does not bind CMS’s discretion to revoke Petitioner and I cannot review that exercise of discretion.  P. Br. at 3; P. Ex. A.

4. I do not have jurisdiction over the re-enrollment bar CMS imposed; therefore, I cannot remand this issue to CMS. 

Petitioner requests that I remand this case to CMS and direct CMS to exercise its discretion to reevaluate the length of the re-enrollment bar.  Petitioner believes that CMS failed to provide sufficient explanation as to why it imposed a three-year length to the bar.  P. Br. at 23.  As Petitioner recognizes, the reenrollment bar itself is not reviewable by an ALJ.  Vijendra Dave, M.D., DAB No. 2672 at 8-12 (2016).  That fact, I believe, may limit my ability to remand this matter to CMS without CMS’s consent because an ALJ may only remand a new issue to CMS that is raised in the proceeding before the

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ALJ.  42 C.F.R. §§ 498.56(d), 498.78.  The reenrollment bar is not an issue in this proceeding.  Further, because there is no reason to conclude that CMS failed to understand that it had discretion to assign a reenrollment bar of less than three years, I have no basis to inquire into the possibility that CMS did not exercise its discretion.  See Brian K. Ellefsen, DO, DAB No. 2626 at 10 (2015).

V.  Conclusion

For the foregoing reasons, I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(i), effective November 19, 2016.