Ravish Patwardhan, M.D., DAB CR5032 (2018)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through its Medicare administrative contractor, Novitas Solutions (Novitas), revoked the Medicare enrollment and billing privileges of Ravish Patwardhan, M.D. (Petitioner) pursuant to 42 C.F.R. § 424.535(a)(1) and 42 C.F.R. § 424.535(a)(9).  The undisputed evidence shows that the Louisiana State Board of Medical Examiners (LSBME) revoked Petitioner’s license to practice medicine and that he failed to report the license revocation to CMS within 30 days as was required. 

For the reasons set forth below, I find that there is no genuine dispute of any material fact and that CMS is entitled to judgment affirming the revocation of Petitioner’s Medicare enrollment and billing privileges.  Accordingly, I grant summary judgment in favor of CMS. 

I.  Background and Procedural History

Petitioner is a physician licensed in the state of Louisiana, who was enrolled as a supplier of Medicare services.  See, e.g., CMS Exhibit (Ex.) 1 at 1; CMS Ex. 2 at 1.  On October 26, 2015, the LSBME revoked Petitioner’s license to practice medicine.  CMS Ex. 1

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at 24.  Petitioner appealed the LSBME decision to the Civil District Court for the Parish of Orleans (District Court).  Request for Hearing (RFH) at 1; see also Petitioner’s Exhibit (P. Ex.) 3 at 1.  On December 8, 2015, the District Court issued an order staying the LSBME’s decision to revoke Petitioner’s license.  P. Ex. 4 at 3.  The District Court further ordered that any reference to the revocation decision “shall not be publicized, published, and/or added to the [LSBME’s] web site and/or included in the [LSBME’s] Newsletter.”  P. Ex. 4 at 2.  On January 9, 2017, the District Court issued its judgment and remanded Petitioner’s case to the LSBME for further proceedings.  P. Ex. 3 at 1.  In that decision, the District Court stated that it “does not believe that reversal or modification of the decision is appropriate; rather, the Court will remand this matter for a new trial/administrative hearing, to allow full development of the record where all relevant, competent evidence, consistent with these Reasons, should be considered by the Board and then they can give that evidence whatever weight they think it deserves.”  P. Ex. 3 at 5-6.

While Petitioner’s appeal to the District Court was pending, Novitas informed Petitioner that his Medicare billing privileges were revoked.  By letter dated June 28, 2016, Novitas explained that its determination was based on the following regulations:

42 CFR §424.535(a)(1) – Noncompliance

The Louisiana State Board of Medical Examiners revoked your medical license effective October 26, 2015.

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

The Louisiana State Board of Medical Examiners revoked your medical license effective October 26, 2015.  You did not notify the Centers for Medicare & Medicaid Services of this adverse legal action as required under 42 CFR §424.516.

CMS Ex. 2 at 1 (bold type in original).

Petitioner sought reconsideration of the June 28, 2016 revocation determination and also submitted a corrective action plan (CAP).  In a letter dated August 5, 2016, Novitas determined that Petitioner’s CAP had “not provided verifiable evidence [he was] in compliance with Medicare requirements at the time the revocation was issued; therefore we are not overturning our initial decision.”  CMS Ex. 3 at 1. 

Likewise, Novitas issued an unfavorable reconsidered determination dated October 13, 2016.  CMS Ex. 5 at 1.  Petitioner submitted his request for hearing on January 10, 2017, which was after the 60-day window to file an appeal.  RFH.  As explained in greater

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detail below, I find that Petitioner has established that his hearing request was timely filed.

The case was assigned to me, and I issued an Acknowledgment and Pre‑Hearing Order (Pre‑Hearing Order) on January 31, 2017.  Pursuant to the Pre-Hearing Order, CMS submitted a Motion for Summary Judgment (CMS Br.) and six exhibits (CMS Exs. 1-6).  Petitioner filed a brief in response (P. Br.), along with seven exhibits (P. Exs. 1-7).  Neither party objected to the exhibits offered by the opposing party.  Accordingly, in the absence of objection, I admit CMS Exs. 1-6 and P. Exs. 1-7 into the record.

Petitioner’s exhibits include the written direct testimony of two witnesses (P. Exs. 1, 2).  CMS requested cross‑examination of Petitioner’s witnesses.  Ordinarily, I will convene a hearing if a party requests to cross‑examine a witness proposed by the opposing party.  See Pre‑Hearing Order ¶ 10.  However, because I grant CMS’ motion for summary judgment, a hearing to cross‑examine the witnesses is not necessary.

II.  Issues

The issues in this case are:

Whether Petitioner’s hearing request was untimely filed;

Whether CMS is entitled to summary judgment; and

Whether CMS had a legitimate 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).

III.  Jurisdiction

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

IV.  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

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suppliers1  42 U.S.C. §§ 1302, 1395cc(j).  The Secretary has delegated 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).

If CMS revokes a provider’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.  Conclusions of Law and Analysis

1.  Petitioner filed his hearing request within 60 days after he received the reconsidered determination; accordingly, the hearing request was not untimely.

CMS moved to dismiss Petitioner’s hearing request, arguing that the hearing request was untimely filed and Petitioner had not established good cause to extend the filing deadline.  CMS Br. at 3.  For the reasons explained in this section of my decision, I conclude that Petitioner established that his hearing request was filed timely.

A supplier dissatisfied with a reconsidered determination is entitled to a hearing before an administrative law judge.  42 C.F.R. § 498.5(l)(2).  A supplier must file its request for hearing in writing no later than 60 days from the date that it receives a reconsidered determination.  42 C.F.R. § 498.40(a)(2).  The regulations presume that a party received the reconsidered determination five days after the date of the notice unless the party shows that the notice was, in fact, received earlier or later.  42 C.F.R. § 498.22(b)(3), incorporated by reference in 42 C.F.R. § 498.40(a)(2).  A supplier may request that an

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administrative law judge extend the date to file a hearing request; however, the supplier must show good cause in order for the administrative law judge to grant such a request.  42 C.F.R. § 498.40(c).

Here, the reconsidered determination was dated October 13, 2016.  CMS Ex. 5 at 1.  Therefore, absent a showing that Petitioner received the reconsideration later than October 18, 2016, Petitioner had until December 19, 2016, to file his hearing request.2  42 C.F.R. § 498.40(a)(2).  Petitioner filed his hearing request on January 10, 2017.  RFH. 

Petitioner contends that his hearing request was timely because he did not receive the reconsidered determination until November 11, 2016.  P. Br. at 2.  In support of this assertion, Petitioner offered his own written direct testimony and that of his office manager.  P. Exs. 1, 2.  Their written direct testimony describes the routine practices Petitioner’s office uses to process mail.  They state that the office manager is responsible for receiving, reviewing, and documenting the date of delivery/receipt of all mail directed to Petitioner.  P. Ex. 1 at 2; P. Ex. 2 at 1.  They explain that it is the office manager’s practice to document “the date of delivery/receipt by physically stamping ‘Received’ and then hand‑writing the date of delivery/receipt on each piece of mail directed to [Petitioner].”  P. Br. at 2; see also P. Ex. 1 at 2; P. Ex. 2 at 2.  The office manager then emails a scanned PDF of the mail to Petitioner with the subject line showing the date mail was received.  P. Br. at 2‑3; P. Ex. 1 at 2; P. Ex. 2 at 2.  Petitioner included as an exhibit a copy of the reconsidered determination stamped “Received” with “11‑11‑16” hand written on the letter as well as a copy of the email sent to him from his office manager with the subject line “11‑11‑16 mail.”  P. Ex. 5 at 1; P. Ex. 6 at 1.  Finally, Petitioner contacted Novitas on December 12, 2016, to notify the contractor that:  1) Petitioner intended to file a request for hearing; and 2) Petitioner received the reconsidered determination on November 11, 2016.  P. Ex. 7.  Neither Petitioner nor the office manager knows why their receipt of the reconsidered determination was delayed, but they explain that the delayed mail delivery could have been the result of Petitioner’s recent move to a new office suite within the medical building.  P. Ex. 1 at 3; P. Ex. 2 at 2.

After careful consideration of the evidence, I conclude that Petitioner has provided credible evidence that he did not receive the reconsidered determination within five days as the regulations presume.  I find that Petitioner received the reconsidered determination on November 11, 2016, and the hearing request was filed within 60 days of that date.  I therefore find that Petitioner’s hearing request was timely filed.  Accordingly, I consider the merits of Petitioner’s hearing request.

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2.  Summary judgment is appropriate in this case.

An administrative law judge 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 (6th Cir. 2004)).  “Matters presented to the administrative law judge for summary judgment will follow Rule 56 of the Federal Rules of Civil Procedure and federal case law . . . .”  Civil Remedies Division Procedures § 19(a)(iii).

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) (italics in original). 

In determining whether there are genuine issues of material fact for trial, the reviewer 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 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Liberty Lobby, Inc., 477 U.S. at 248.

Viewing the evidence before me in a light most favorable to Petitioner and drawing all inferences in Petitioner’s favor, I conclude that there is no genuine dispute as to any material fact pertinent to revocation under either 42 C.F.R. § 424.535(a)(1) or (a)(9) that would require a hearing in this case.  CMS’s evidence shows that Petitioner’s license was revoked on October 26, 2015, and he did not report that adverse action to CMS within 30 days.  While Petitioner argues that the District Court subsequently determined that the revocation decision was “arbitrary, capricious, made upon unlawful process, and

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rendered in violation of [Petitioner’s] constitutional rights,” P. Br. at 3, this does not alter the fact that, at least from October 26, 2015 until December 8, 2015, Petitioner’s license was revoked.  Similarly, although Petitioner contends that the District Court “Stay” Order prevented him from reporting the license revocation, P. Br. at 9, that Order did not take effect until 12 days after the 30-day deadline to report adverse actions.  Petitioner has not submitted any evidence that detracts from CMS’ evidence.  This case turns on a matter of law, and is therefore appropriate for summary judgment.

For purposes of summary judgment, I draw all inferences in favor of Petitioner.  Even though not material to the outcome, I accept as true that, effective January 9, 2017, the District Court determined that the LSBME could not revoke Petitioner’s medical license without conducting a new hearing.  I further accept that, as of December 8, 2015, the District Court stayed any reporting of the LSBME’s revocation decision.

3.  The undisputed facts show that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(1) because his license to practice medicine was revoked.

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 CAP.  Supplier enrollment requirements include complying with federal and state licensure provisions.  42 C.F.R. § 424.516(a)(2).  As a physician, Petitioner must be licensed by the state in which he practices medicine.  42 C.F.R § 410.20(b).  Petitioner argues that the LSBME revocation decision has been judicially determined to be unenforceable because it was “arbitrary, capricious, made upon unlawful process, and rendered in violation of [Petitioner’s] constitutional rights.”  P. Br. at 3, 6.  Moreover, Petitioner contends that the decision is not final, as the District Court ordered a new hearing, and therefore it cannot serve as a basis to revoke his Medicare enrollment and billing privileges.  P. Br. at 7.

Even accepting Petitioner’s assertions as true, they do not change the fact that, as of October 26, 2015, CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges.  The authority to revoke granted to CMS by 42 C.F.R. § 424.535(a)(1) contains no temporal limitation.  Petitioner was not authorized to practice medicine in the state of Louisiana effective October 26, 2015.  Once the suspension or revocation of a medical license is in place, CMS is authorized to revoke Medicare billing privileges.  That the decision was subsequently overturned or is not “final” does not alter the fact that as of October 26, 2015, CMS had a legitimate basis to revoke Petitioner’s enrollment and

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billing privileges.3  But, as I explain below, even if I accepted Petitioner’s argument that the District Court’s Orders staying the LSBME’s revocation action and remanding to the LSBME for a new hearing extinguished the revocation of Petitioner’s license such that CMS may not revoke Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(1), I would nevertheless conclude that CMS was authorized to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).

4.  CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9) because he failed to notify CMS or its contractor that his license had been revoked.

The regulation at 42 C.F.R. § 424.516(d)(1)(ii) requires a supplier to report any adverse legal action to CMS within 30 days.  Section 424.502 defines a “final adverse action” to include “[s]uspension or revocation of a license to provide health care by any state licensing authority.”  42 C.F.R. § 424.502.  Petitioner does not dispute that he did not inform CMS within 30 days that the LSBME had revoked his license.  Rather, Petitioner contends that the District Court’s “Stay” order “clearly justifies any alleged failure by [Petitioner] to report the LSBME Decision.”  P. Br. at 9.  Petitioner argues that the Order “expressly prevented the publishing or publicizing of the [LSBME] Decision” so as to “prevent the dissemination of the Decision to any third parties pending the District Court’s review of it.”  Id.  Moreover, Petitioner asserts that the Judgment “expressly ‘Stayed’ the effect of the Decision and explicitly reinstated [Petitioner’s] Louisiana medical license” and therefore “there was no final adverse legal action for [Petitioner] to report.”  Id. at 9‑10.

Petitioner’s license was revoked on October 26, 2015.  CMS Ex. 1 at 24.  The deadline to report the adverse action was November 25, 2015.  The District Court’s Stay Order is dated December 8, 2015.  P. Ex. 4.  I thus need not decide whether the District Court’s Order could have provided a valid basis for Petitioner’s failure to report his license revocation because Petitioner was required to report the adverse action before the District Court issued the Order.  Petitioner was noncompliant with the reporting requirement for 12 days before the District Court’s Order took effect. 

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Moreover, Petitioner’s argument that he was not required to report because the revocation was not a final adverse action does not help him.  See P. Br. at 7.  The phrase “any adverse legal action” in 42 C.F.R. § 424.516(d)(1)(ii) is broader than the term “final adverse action,” as defined in section 524.502, because the word “any” can encompass all adverse legal actions, not just final adverse actions.  See Akram A. Ismail, M.D., DAB No. 2429 at 10‑11 (2011) (concluding that the plain language of the phrase “any adverse legal action” in 42 C.F.R. § 424.516(d)(1)(ii) requires the reporting of a license suspension, even if under appeal).  Thus, whether or not the revocation was a final adverse legal action, Petitioner was required to report it to Novitas within 30 days.  This Petitioner failed to do.  Therefore, as provided in 42 C.F.R. § 424.535(a)(9), CMS was authorized to revoke Petitioner’s enrollment and billing privileges because he failed to comply with the reporting requirement at 42 C.F.R. § 424.516(d)(1)(ii).

To the extent that any of Petitioner’s arguments that his revocation was “improper and erroneous” and “therefore cannot be enforced,” P. Br. at 8, are equitable in nature, I cannot consider them.  I have no authority to grant Petitioner equitable relief.  US Ultrasound, DAB No. 2302, at 8 (2010).

V.  Conclusion

For the foregoing reasons, I affirm CMS’ determination to revoke Petitioner’s Medicare enrollment and billing privileges.

• 1. As a physician, Petitioner is considered a “supplier” for purposes of the Act and the regulations. See 42 U.S.C. § 1395x(d); 42 C.F.R. § 498.2; see also 42 C.F.R. § 400.202.
• 2. I take administrative notice that the 65th day after October 13, 2016, was December 17, 2016, a Saturday. The first business day following December 17, 2016, was Monday, December 19, 2016. See Civil Remedies Division Procedures § 11.a
• 3. Indeed, Petitioner tacitly admits that his license was revoked by arguing that the District Court’s December 8, 2015 Judgment “expressly ‘Stayed’ the effect of the Decision and explicitly re-instated [Petitioner’s] Louisiana medical license.” P. Br. at 10 (italics added). It stands to reason that a license cannot be reinstated if it was not previously revoked or suspended.