Neil Niren, MD, DAB CR5892 (2021)

DECISION

There is a basis for listing Petitioner on the Centers for Medicare & Medicaid Services (CMS) preclusion list beginning September 17, 2020 and continuing until November 7, 2023.

I.  Background

CMS notified Petitioner on January 24, 2020, that his name would be added to the CMS preclusion list based on his felony conviction within the preceding 10 years of an offense that CMS deems detrimental to the best interests of the Medicare program.  CMS Exhibit (Ex.) 1 at 17-19.  Petitioner requested reconsideration on March 27, 2020.  CMS Ex. 1 at 9, 11-16. 

A CMS hearing officer issued a reconsidered determination on September 17, 2020.  The CMS hearing officer upheld listing Petitioner on the CMS preclusion list beginning on the date of the reconsidered determination and continuing until November 7, 2023, the end of the 10-year period following Petitioner’s felony conviction on November 8, 2013.  CMS Ex. 1 at 1-8. 

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Petitioner requested a hearing by an administrative law judge (ALJ) on October 31, 2020 (RFH).  The case was assigned to me to hear and decide on November 3, 2020.  The RFH was acknowledged and my Standing Order was issued. 

On November 30, 2020, CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 and 2.  Petitioner filed a response to the CMS motion on January 7, 2021 (P. Br.).  Petitioner also filed on January 8, 2021, an “Addendum to the Order to Show Cause” (Addendum) and his Social Security Statement dated September 1, 2020 (marked Exhibit 7).  On January 9, 2021 Petitioner filed his “Final Addendum to the Order to Show Cause” (Final Addendum).  CMS filed a reply brief on January 11, 2021.  Petitioner filed a sur-reply brief on January 11, 2021. 

Petitioner has not objected to my consideration of CMS Exs. 1 and 2 and they are admitted and considered as evidence.  CMS objects to my consideration of Petitioner’s response to the CMS motion and other documents filed by Petitioner on January 8 and 9, 2021.  The CMS objection to Petitioner’s response is overruled.  Although the response was filed late and Petitioner has not stated good cause for the late filing, CMS suffers no prejudice by my consideration of Petitioner’s arguments.  The documents Petitioner filed on January 8 and 9, 2021, “Addendum to the Order to Show Cause” and “Final Addendum to the Order to Show Cause” are unsworn statements of Petitioner, which are more akin to supplemental argument than evidence.  However, because this case is resolved on summary judgment, Petitioner’s assertions of fact in his argument are accepted as true with all inferences drawn in Petitioner’s favor.  If one characterized the documents as evidence, they are not admissible because the content is irrelevant to any issue I may decide in this case, i.e., they are not evidence that has a tendency to make a fact of consequence to the outcome more or less probable.  Fed. R. Evid. 401; 42 C.F.R. § 498.60(b).  Petitioner’s Social Security Statement is also not relevant and not admitted as evidence nor are the spread sheets submitted with the request for hearing, which purportedly reflect Petitioner’s financial investing.   

II.  Discussion

A.  Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible

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beneficiaries may only be made to eligible providers of services and suppliers.1   Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioner, a physician, is a supplier.

The Act requires that the Secretary of Health and Human Services (Secretary) issue regulations that establish a process for the enrollment in Medicare of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations, such as revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505,2 a supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or a Medicare administrative contractor (MAC) may revoke an enrolled supplier’s Medicare enrollment and billing privileges and supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535.  After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is generally barred from reenrolling in the Medicare program for a period of one to ten years.  42 C.F.R. § 424.535(c)(1).

Effective June 15, 2018, CMS was required to establish a preclusion list as defined by 42 C.F.R. §§ 422.2 and 423.100.  There is only one preclusion list.  83 Fed. Reg. 16,440, 16,641-67 (Apr. 16, 2018). 

CMS adds to the preclusion list individuals and entities as provided by the definition of the preclusion list:

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Preclusion list means a CMS compiled list of individuals and entities that—

(1) Meet all of the following requirements:

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in §424.535(a)(3) of this chapter.

(ii) The individual or entity is currently under a reenrollment bar under §424.535(c).

(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program. In making this determination under this paragraph (1)(iii), CMS considers the following factors:

(A) The seriousness of the conduct underlying the individual's or entity's revocation.

(B) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program.

(C) Any other evidence that CMS deems relevant to its determination; or

(2) Meet both of the following requirements:

(i) The individual or entity has engaged in behavior, other than that described in §424.535(a)(3) of this chapter, for which CMS could have revoked the individual or entity to the extent applicable had they been enrolled in Medicare.

(ii) CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program. In making this determination under this paragraph (2)(ii), CMS considers the following factors:

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(A) The seriousness of the conduct involved.

(B) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program; and

(C) Any other evidence that CMS deems relevant to its determination; or

(3) The individual or entity, regardless of whether they are or were enrolled in Medicare, has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program. Factors that CMS considers in making such a determination under this paragraph (3) are—

(i) The severity of the offense;

(ii) When the offense occurred; and

(iii) Any other information that CMS deems relevant to its determination.

42 C.F.R. § 422.2 (emphasis added).  This definition of the preclusion list is from the regulations applicable to the Medicare Part C (Medicare Advantage) program.  A similar definition applicable to the Medicare Part D program is found in 42 C.F.R. § 423.100. 

No payment under Medicare Parts C and D may be made to anyone on the preclusion list.  42 C.F.R. §§ 422.222-.224, 422.504(h)(2)(i)(2)(v), 423.120(c)(6).  CMS must notify a supplier in writing that the supplier is being added to the preclusion list, include the basis for the action, and inform the supplier of the right to ALJ review and appeal pursuant to 42 C.F.R. pt. 498.  42 C.F.R. §§ 422.222(a)(2), 423.120(c)(6)(v).

An individual or entity is placed on the exclusion list no sooner than 60 days from the date of the notice of the initial determination to place the individual’s or entity’s name on the preclusion list or when a reconsidered determination is issued.  42 C.F.R. §§ 422.222(a)(3)(i), 423.120(c)(6)(v)(C).  Generally, an individual or entity placed on the preclusion list due to a felony conviction remains on the preclusion list until the date 10 years from the date of the felony conviction.  42 C.F.R. §§ 422.222(a)(5)(iii) and 423.120(c)(6)(vii)(C) as amended effective January 1, 2020, 84 Fed. Reg. 15,680, 15,832, 15,840-41 (Apr. 16, 2019).  However, CMS has discretion to determine that a shorter

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period of exclusion is warranted based on consideration of the severity of the offense, when the offense occurred, and any other information CMS deems relevant.  42 C.F.R. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).  CMS also has discretion to not place the name of an individual or entity on the preclusion list or remove the name from the preclusion list if CMS determines exceptional circumstances exist related to Medicare beneficiary access to items, services, or drugs considering the degree to which access is impaired and other evidence CMS determines is relevant.  42 C.F.R. §§ 422.222(a)(6), 423.102(c)(6)(vi).    

A supplier who has been placed on the preclusion list may request reconsideration and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. §§ 422.222(a)(2), 423.120(c)(6)(v)(A), 498.5(n)(1)(i).  A supplier submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a).  CMS or its contractor must give notice of its reconsidered determination to the supplier, giving the reasons for its determination and advising the supplier of the right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the supplier, the supplier has the right to request a hearing by an ALJ and further review by the Departmental Appeals Board (the Board).  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), (20) (2018), 498.5.  A hearing on the record, also known as an oral hearing, is required under the Act, unless waived.  Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied.  42 C.F.R. § 498.5(l)(2).  The supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c).  Preclusion list review is strictly limited to whether there is a basis for adding the individual or entity to the preclusion list.  83 Fed. Reg. 16,642-43; 42 C.F.R. §§ 498.3(b)(20), 498.5(n).

B.  Issues

Whether summary judgment is appropriate; and

Whether there is a basis to list Petitioner on the CMS preclusion list.

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

My conclusions of law are set forth in bold followed by the undisputed facts and analysis.

1.  Summary judgment is appropriate.

A supplier who has been placed on the preclusion list has a right to a hearing and judicial review, and a hearing on the record is required under the Act.  Act §§ 205(b), 1866(h)(1),

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(j); 42 C.F.R. §§ 498.3(b)(20), 498.5(n); Crestview, 373 F.3d at 748-51.  A party may waive appearance at an oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.  In this case, Petitioner has not waived the right to oral hearing or otherwise consented to a decision based only upon the documentary evidence or pleadings.  Accordingly, disposition on the written record alone is not permissible, unless summary judgment is appropriate as I conclude it is in this case.

Summary judgment is not automatic upon request but is limited to certain specific conditions.  The Secretary’s regulations at 42 C.F.R. pt. 498 that establish the procedures to be followed in adjudicating Petitioner’s case do not establish a summary judgment procedure or recognize such a procedure.  However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board also has recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. Pro. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  A summary judgment procedure is described and made available in the adjudication of this case by the Standing Order, para. D, G.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  In determining whether there are genuine issues of material fact for trial, 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.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 4 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 4 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differ from that used in resolving a case after a hearing.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids

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deciding which version of the facts is more likely true.  Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden of persuasion.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 Fed. App’x 181 (6th Cir. 2005).

Viewing the evidence before me in a light most favorable to Petitioner and drawing all inferences in Petitioner’s favor, I conclude that there are no genuine disputes as to any material facts necessary to conclude that CMS has a basis to place Petitioner on the preclusion list.  CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate.

2.  There is a basis for adding Petitioner to the CMS preclusion list for a period of September 17, 2020, the date of the reconsidered determination, to November 7, 2023, the end of the 10-year period following the date of his conviction. 

a.  Undisputed Facts

The facts are undisputed, or for purposes of summary judgment, Petitioner’s averred facts are accepted as true and all favorable inferences are drawn in favor of Petitioner.

On November 8, 2013, Petitioner pleaded guilty to the felony offense of filing a false tax return in violation of 26 U.S.C. § 7206(1).  Petitioner’s guilty plea was accepted, and he was sentenced to probation for five years subject to specified conditions, a $40,000 fine, and to pay restitution of $452,002 to the Internal Revenue Service (IRS).  CMS Ex. 1 at 40-41, 64-68. 

On June 14, 2016, a MAC revoked Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) and (4) effective November 8, 2013, the date of his conviction.  The MAC imposed a three‑year re-enrollment bar.  CMS Ex. 1 at 42, 51-52.  On September 17, 2020, a CMS hearing officer upheld the revocation on reconsideration. CMS Ex. 1 at 36, 45-48. 

Petitioner requested ALJ review of the revocation of his Medicare enrollment and billing privileges.  On July 13, 2017, the ALJ concluded that there was a basis for revocation

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pursuant to 42 C.F.R. § 424.535(a)(3), effective November 8, 2013, the date of Petitioner’s conviction.  CMS Ex. 1 at 35.  Petitioner subsequently requested review by the Board.  On March 12, 2018, the Board affirmed revocation pursuant to 42 C.F.R. § 424.535(a)(3) effective November 8, 2013, the date of his conviction.  CMS Ex. 1 at 23-34. 

CMS notified Petitioner on January 24, 2020, that his name would be added to the CMS preclusion list based on his felony conviction within the preceding 10 years of an offense that CMS deems detrimental to the best interests of the Medicare program.3   CMS Ex. 1 at 17-19.  Petitioner requested reconsideration on March 27, 2020.  CMS Ex. 1 at 9, 11-16. 

A CMS hearing officer issued a reconsidered determination on September 17, 2020.  The CMS hearing officer upheld listing Petitioner on the CMS preclusion list beginning on the date of the reconsidered determination and continuing until November 7, 2023, the end of the 10-year period following Petitioner’s conviction on November 8, 2013.  CMS Ex. 1 at 1-8. 

b.  Analysis

The only determination of CMS or the MAC that is subject to my review in this case is the reconsidered determination issued by the CMS hearing officer on September 17, 2020.  42 C.F.R. § 498.5(n)(2); cf. Neb Grp. of Ariz., DAB No. 2573 at 7 (2014) (only the reconsidered determination is subject to ALJ and Board review in provider and supplier enrollment cases).  

In her reconsidered determination, the CMS hearing officer concluded that there was a basis for placing Petitioner on the CMS preclusion list based on his felony conviction effective the date of the reconsidered determination and until November 7, 2023, the end of the 10-year period following Petitioner’s conviction.  The CMS hearing officer found

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that Petitioner’s Medicare enrollment and billing privileges were previously revoked pursuant to 42 C.F.R. § 424.535(a)(3) and the exclusion was upheld by an ALJ and the Board.  The hearing officer determined that Petitioner’s re-enrollment bar under 42 C.F.R. § 424.535(c) remained in effect when he was first notified that he was being placed on the preclusion list by the CMS August 1, 2019 notice (CMS Ex. 1 at 17-19).  The hearing officer found that it was previously determined that Petitioner’s conviction, which was the basis for revocation, was determined to be detrimental to the best interests of the Medicare program and the determination was also upheld by both an ALJ and the Board.  The hearing officer also explained in detail her conclusions that Petitioner’s conviction was a proper basis for placing his name on the CMS exclusion list.  The hearing officer found that placing Petitioner’s name on the preclusion list was appropriate under the definitions of the preclusion list found in 42 C.F.R. §§ 422.2 and 423.100.  The hearing officer found that Petitioner was convicted of a felony under federal or state law within the previous 10 years and found his felony offense was detrimental to Medicare considering the severity of the offense, when the offense occurred, and other relevant evidence.  42 C.F.R. §§ 422.2 (definition of preclusion ¶ 3), 423.100 (definition of preclusion ¶ 3); CMS Ex. 1 at 4-5.  The hearing officer noted that 42 C.F.R. §§ 422.222(a)(5)(iii) and 423.120(c)(6)(vii)(C) were amended effective January 1, 2020.  CMS Ex. 1 at 6; 84 Fed. Reg. 15,680, 15,832, 15,840-41.  The regulation as amended provides that an individual, entity, or prescriber, whether or not enrolled in Medicare, is placed on the preclusion list for a felony conviction for 10 years beginning the date of the felony conviction, unless CMS determines a shorter period is warranted considering the severity of the offense, when the offense occurred, and other information CMS deems relevant.  42 C.F.R. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).  The hearing officer did not determine it was appropriate to shorten the 10-year period in Petitioner’s case.

I conclude that CMS has a basis for adding Petitioner to the CMS preclusion list beginning the date of the reconsidered determination, September 17, 2020, and continuing to November 7, 2023, the last day of the 10-year period following his felony conviction.  On November 8, 2013, Petitioner was convicted of the federal felony offense of filing a false income tax return.  The CMS hearing officer exercised the discretion granted CMS under 42 C.F.R. §§ 422.2 and 423.100 and determined that Petitioner’s offense was detrimental to the best interests of the Medicare program.  The hearing officer considered the factors required by the regulations including the severity of Petitioner’s offense, when the offense occurred, and other relevant information including that Petitioner’s Medicare enrollment and billing privileges were previously revoked pursuant to 42 C.F.R. § 424.535(a)(3) and the revocation was upheld by an ALJ and the Board.  The hearing officer also exercised the discretion granted CMS under 42 C.F.R. §§ 422.222(a)(5)(iii) and 423.120(c)(6)(vii)(C) and determined that it was not appropriate to shorten the period Petitioner’s name would remain on the preclusion list.  Although CMS has discretion pursuant to 42 C.F.R. §§ 422.222(a)(6) and 423.102(c)(6)(vi) not to include Petitioner on the preclusion list or to remove his name from the list, CMS has not

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exercised its discretion to do so.  I find no authority to conduct review of the following CMS exercises of discretion:  the determination that Petitioner’s felony conviction was detrimental to Medicare; the determination that Petitioner should be listed on the preclusion list until the date 10 years after his felony conviction; and the determination not to act to prevent Petitioner’s name from being placed on the preclusion list or to remove his name from the preclusion list.  My review is limited to determining that there is a basis for placing Petitioner’s name on the preclusion list.  83 Fed. Reg. 16,642-43; 42 C.F.R. §§ 498.3(b)(20), 498.5(n); cf. Saeed A. Bajwa, MD, DAB No. 2799 at 14-16 (2017).

In his request for hearing, Petitioner requested review of the revocation of his Medicare enrollment and to be reinstated in Medicare.4   He also requested to be removed from the preclusion list.  Petitioner states he is willing to provide a corrective action plan (CAP) to show there are safeguards in place so that he does not file a false tax return again.  He states that he is willing to sell his practice and work for a medical organization.  Petitioner states that he pleaded guilty not because he was guilty but because he could not prove he was innocent.  He states he pleaded guilty under coercion.  He blames his accountant.  He states he has been effectively excluded from participating in Medicare for seven years already.  Petitioner states his desire is to help his patients.  RFH. 

Petitioner argues in his brief that he wants a video hearing so that he can show that he was coerced to plead guilty.  He again blames his accountant for his conviction.  He argues that being placed on the preclusion list has adversely affected his ability to provide care for patients who choose to pay him out-of-pocket.  He argues that he submitted a CAP to show that he had taken steps to ensure he would not file a false income tax return again.  He also states that he offered to sell his practice and to go to work for a medical company.   He argues that the Transportation Security Administration has reinstated his clearance.  He argues that the National Provider Data Bank listed him as eligible to reapply for Medicare enrollment and billing privileges effective July 12, 2019.  Petitioner states he was not allowed to become a COVID-19 vaccine provider due to his current status.  He asks to be reinstated in Medicare.  P. Br.  Petitioner presents similar arguments in his sur-reply.  P. Reply.  In his Addendum, Petitioner argues that his accountant did a poor job causing Petitioner to pay an excessive amount to Medicare.  In his Final Addendum, Petitioner points to an error in the Medicare hearing officer’s decision.

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Petitioner advances no arguments in any of his documents that permit me to grant him any of the relief he requests.  The sole issue before me is whether there is a basis for CMS to place Petitioner’s name on the preclusion list, specifically his felony conviction which CMS has determined to be detrimental to Medicare.  Petitioner has presented no argument or evidence that raises a genuine dispute as to any material facts even if his assertions of fact are accepted as true for purposes of summary judgment and inferences are drawn in his favor.

Petitioner expresses concern that the Medicare hearing officer was in error regarding his tax case before the IRS.  Final Addendum.  However, such an error on the part of the hearing officer is not grounds for relief.  My review of whether there is a basis for placing Petitioner’s name on the preclusion list is de novo.  Evidence related to Petitioner’s tax case before the IRS is not relevant to the issue before me because such evidence has no tendency to make a fact of consequence to the issue before me more or less probable.  Fed. R. Evid. 401.  As explained hereafter, Petitioner has no right to review in this proceeding and I have no authority to conduct review of Petitioner’s conviction for tax fraud or the evidence related to that conviction, including the underlying actions of the IRS. 

Petitioner cannot relitigate in this case whether CMS had a basis to revoke his Medicare enrollment and billing privileges based on his felony conviction.  My review in this case is limited to determining that there is a basis for placing Petitioner’s name on the preclusion list.  83 Fed. Reg. 16,642-43; 42 C.F.R. §§ 498.3(b)(20), 498.5(n).  Additionally, in Michael Scott Edwards, OD, and M. Scott Edwards, OD, PA, DAB No. 2975 (2019), the Board discussed its views on collateral estoppel (issue preclusion) and res judicata (claim preclusion).  The Board concluded it was not appropriate to apply either in that case.  Edwards at 12-13.  The Board’s discussion is nevertheless instructive in this case.  For res judicata to apply, the Board stated that three essential elements must be present:  (1) an earlier decision on the same issue, (2) a final judgment on the merits, and (3) involvement of the same parties, or at least, parties in privity with the original parties.  Id.  In this case, it is appropriate to apply the doctrine of res judicata to prevent Petitioner from relitigating whether his felony conviction was a basis for the revocation of his Medicare enrollment.  The prior ALJ and Board decision addressed this issue, a final decision was issued by the Board and there is no evidence of further review of Petitioner’s conviction by a federal court, and both Petitioner and CMS were parties to the prior action that ended with the final decision by the Board.  Res judicata also serves to bar any further challenge by Petitioner of his underlying conviction.  Petitioner pleaded guilty to the felony offense of filing a false tax return.  His guilty plea was accepted, and he was sentenced by the federal court.  CMS Ex. 1 at 40-41.  Therefore there was an earlier decision by the federal court on the issue of Petitioner’s guilt of filing a false tax return; the federal court’s judgment was final as there is no evidence of further appeal of the conviction; and the prosecution of Petitioner was by the United States government of

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which CMS is a part (or at least in privity with) so the same parties were involved in the criminal prosecution and the case before me.  Accordingly, Petitioner cannot challenge or deny in this case that he was convicted of the felony offense of filing a false income tax return; that the conviction provided a basis for revocation of his Medicare enrollment and billing privileges; or that the felony conviction may be a basis for placing his name on the preclusion list.

Petitioner points out that the National Provider Data Bank listed him as eligible to reapply for Medicare enrollment and billing privileges effective July 12, 2019, which was about the date his re-enrollment bar ended.  Petitioner argues that he has been subject to changing standards related to the bar to re-enrollment in his case.5   RFH, P. Br.  However, the three-year re-enrollment bar imposed in conjunction with the revocation of Petitioner’s Medicare enrollment and billing privileges did not change.  The Board explained in Dr. Robert Kanowitz, DAB No. 2942 (2019) the difference between a re-enrollment bar of three years and the authority of CMS or a MAC to deny enrollment if one who attempts to enroll in Medicare was convicted of a felony CMS determined detrimental to the Medicare program and the conviction occurred within the 10 years preceding the date an enrollment application is filed.  The Board explained that when a supplier’s Medicare enrollment and billing privileges are revoked, a bar to re-enrollment is imposed.  At the time of Petitioner’s conviction in 2013, the re-enrollment bar was one to three years.  42 C.F.R. § 424.535(c) (2012).6   When the MAC revoked Petitioner’s enrollment June 14, 2016, the re-enrollment bar continued to be one to three years.  42 C.F.R. § 424.535(c) (2015).  The MAC imposed a three-year re-enrollment bar beginning 30 days after the date of the notice letter.  CMS Ex. 1 at 52.  Therefore, the bar to re-enrollment expired on about July 12 or 13, 2019.  The Board explained in Kanowitz that when a revocation occurs under 42 C.F.R. § 424.535, CMS may impose a bar to re-

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enrollment of one to three years.  However, when the bar to re-enrollment ends a supplier or provider is not automatically re-enrolled in Medicare.  Rather, the provider or supplier must re-enroll in Medicare by completion of a new application and submission of required documents subject to CMS approval.  When a new application is submitted, CMS has discretion under 42 C.F.R. § 424.530(a)(3) to deny enrollment if the provider or supplier was convicted of one of the covered felonies within the 10-year period preceding submission of the application.  The Board noted that CMS has discretion to grant enrollment before the end of the 10-year period following the provider’s or supplier’s conviction of a covered felony.  However, ALJ and Board review is limited to determining whether CMS has a basis to deny enrollment.  An ALJ and the Board have no authority to review the exercise of discretion by CMS not to grant enrollment within the 10-year period.  Kanowitz at 6.  In this case, the hearing officer was very clear that Petitioner would remain on the preclusion list until November 7, 2023 (CMS Ex. 1 at 6), the end-date of the 10-year period following Petitioner’s November 8, 2013, guilty plea and conviction of filing a false tax return.  The hearing officer’s determination is not a re-enrollment bar which may only be imposed pursuant to 42 C.F.R. § 424.535(c).

Petitioner’s offers to file a CAP are not a basis for any relief and not permitted.  The regulations provide for filing a CAP only for a denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(1) or revocation pursuant to 42 C.F.R. § 424.535(a)(1).  Petitioner’s revocation was pursuant to 42 C.F.R. § 424.535(a)(3).  The regulations establishing the preclusion list do not provide for a provider or supplier to file a CAP.  42 C.F.R. pts. 422 and 423.    

In his request for reconsideration, Petitioner’s counsel acknowledged that CMS has authority to place Petitioner on the preclusion list pursuant to 42 C.F.R. pts. 422 and 423, based on Petitioner’s felony conviction.  CMS Ex. 1 at 11.  Petitioner argues, however, that CMS also had discretion to shorten the period that Petitioner will be listed on the preclusion list.  Petitioner specifically requested on reconsideration that his period on the preclusion list end with his re-enrollment bar, which ended on about July 12 or 13, 2019.  CMS Ex. 1 at 11-12.  The request was obviously rejected by the Medicare hearing officer.  Once I have determined that CMS had a basis to place a provider or supplier on the preclusion list, I have no authority to review the CMS discretion to determine the duration of the period one is placed on the preclusion list up to the maximum period authorized under the regulations.  83 Fed. Reg. 16,642-43; 42 C.F.R. §§ 498.3(b)(20), 498.5(n); cf. Kanowitz at 6. 

On reconsideration, Petitioner’s counsel also argued that regulatory provisions creating and implementing the preclusion list were not effective prior to March 12, 2019, when the Board issued its decision related to the revocation of Petitioner’s Medicare enrollment and billing privileges (DAB No. 2856, CMS Ex. 1 at 23).  He argues that when he decided not to further appeal the Board’s decision upholding revocation, he was not

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aware that he would be subject to the further punishment of being placed on the preclusion list.  Petitioner asserts that being subject to additional punishment that did not exist when he was convicted or the revocation proceedings were ongoing, “smacks of the retroactive application of laws which our constitution prohibits.”  CMS Ex. 1 at 16.  I construe Petitioner’s argument to be that placing his name on the preclusion list amounts to a violation of the Ex Post Facto Clause of the U.S. Constitution (U.S. Const. art. 1, § 9).  This argument has no merit because there was no retroactive application of the regulations in Petitioner’s case.  The effective date of regulations creating the preclusion list was June 15, 2018.  83 Fed. Reg. 16,440.  The regulations were amended effective January 1, 2020.  84 Fed. Reg. 15,680, 15,832, 15,840-41.  The CMS initial determination to place Petitioner on the preclusion list was issued January 24, 2020, after both the original effective date of the controlling regulations and their amendment.  The reconsidered determination was also clear that Petitioner’s name was not to be added to the preclusion list until September 17, 2020, the date of the reconsidered determination.  CMS Ex. 1 at 1, 6.  There is no evidence that CMS added Petitioner’s name to the preclusion list retroactive to a date prior to the creation of the preclusion list or the date of the reconsidered determination in this case.  Therefore, there is no “Ex Post Facto” problem in this case. 

Furthermore, the Board has previously considered alleged Ex Post Facto Clause violations in the context of exclusions from participation in Medicare by the Inspector General.  The Board has concluded that “[t]he Ex Post Facto Clause protects only from retroactive application of punishments or penal statutes . . . . [i]t does not protect against the retroactive application of remedial or civil sanctions.”  Dr. Darren James, D.P.M. v. IG, DAB No. 1828 at 8 (2002).  The Board’s rationale is appropriate to apply in this case.   The drafters of the regulations that created the preclusion list explained that the purpose of the preclusion list was to protect Medicare beneficiaries and the Medicare trust fund.  83 Fed. Reg. 16,440, 16,641.  The Secretary’s regulations are not penal statutes and placing Petitioner on the preclusion list was not imposed by CMS as a punishment.  Rather, placing Petitioner on the preclusion list is a remedial measure or civil sanction intended to protect Medicare beneficiaries and the Medicare program.  I conclude based on the same reasoning as expressed by the Board in James that the Ex Post Facto Clause does not apply to prohibit the retroactive application of the provisions of 42 C.F.R. pts. 422 and 423 that establish the preclusion list and the procedures for placing one on the list, though as already stated I find no retroactive application actually occurred. 

Petitioner’s arguments may also be viewed as requests for equitable relief.  However, I have no authority to grant any equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am required to follow the Act and regulations.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

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III.  Conclusion

For the foregoing reasons, I conclude that there is a basis for listing Petitioner on the CMS preclusion list beginning September 17, 2020 and continuing until November 7, 2023.

• 1. A “supplier” furnishes services under Medicare and includes physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) (42 U.S.C. § 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(e)) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.
• 2. Citations are to the 2019 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.
• 3. The record includes a letter from CMS to Petitioner dated August 1, 2018, which advised Petitioner that he was being placed on the preclusion list effective January 1, 2019.  CMS Ex. 1 at 20-21.  Petitioner requested a reconsidered determination.  On November 7, 2018, a CMS hearing officer issued a reconsidered determination upholding placing Petitioner on the preclusion list for the duration of his re-enrollment bar.  CMS Ex. 2.  However, there is no dispute that the initial determination to place Petitioner on the exclusion list at issue before me is that reflected by the CMS letter dated January 24, 2020 and the reconsidered determination dated September 17, 2020.  CMS Ex. 1 at 1-6, 17-19.
• 4. Petitioner requested that review be conducted by the CMS hearing officer who issued the reconsidered determination.  RFH at 1.  The CMS hearing officer is not an ALJ and not authorized to conduct this review.   
• 5. Petitioner was not subject to a change in the duration of his bar to re-enrollment.  However, the period that his name will be on the preclusion list clearly did increase from the duration of his bar to re-enrollment to the end of the period 10 years from the date of his conviction due to the amendments effective January 1, 2020.  84 Fed. Reg. 15,680, 15,832, 15,840-41.
• 6. An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018) that the applicable regulations are those in effect at the time of the initial determination. 
  
  Effective November 4, 2019, 42 C.F.R. § 424.535(c) was revised to authorize CMS to impose a re-enrollment bar of one to 10 years, with authorization to extend beyond 10 years under certain circumstances.  84 Fed. Reg. 47,854 (Sept. 10, 2019).  However, this change has no application in Petitioner’s case.