Donald Robinson and Donald E. Robinson, DPM PC, DAB CR5075 (2018)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) sustaining the determinations of one of its contractors, as affirmed on reconsideration, to revoke the Medicare enrollments of Petitioners Donald Robinson; Donald E. Robinson, DPM PC; and Donald E. Robinson, DPM PC (DME) effective June 9, 2011 and imposing a three-year bar against reenrollment in Medicare effective July 23, 2017 (C-18-454), and July 30, 2017 (C-18-452).

I. Background and Issue

These cases were docketed originally as two cases under two docket numbers, C‑18-452 and C-18-454.  In C-18-452, Petitioners Donald Robinson and Donald E. Robinson, DPM PC appealed a Medicare contractor’s determination, as affirmed on reconsideration, to revoke their Medicare billing privileges and to bar them from reenrolling in the Medicare program.  In C-18-454, Petitioner Donald E. Robinson, DPM PC (DME) appealed the contractor’s determination, as affirmed on reconsideration, to revoke its Medicare billing privileges and to bar it from reenrolling in the Medicare program.

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Petitioner Donald Robinson is a podiatrist.  Petitioner Donald E. Robinson, DPM PC is a professional corporation that he owns and that files Medicare reimbursement claims for items or services provided by him.  Petitioner Donald E. Robinson, DPM PC (DME) is a durable medical equipment supplier Petitioner Donald Robinson owns.

CMS moved for summary judgment in both cases and Petitioners in both cases opposed the motion purely on legal grounds.  With its motion in C-18-452, CMS filed ten proposed exhibits that are identified as CMS Ex. 1-CMS Ex. 10 under that docket number.  Petitioners filed no exhibits in opposition.  With its motion in C-18-454, CMS filed seven proposed exhibits that are identified as CMS Ex. 1-CMS Ex. 7 under that docket number.  Petitioners filed no exhibits in opposition.

There are some slight differences in the regulations that govern participation in Medicare by podiatrists and their professional corporations and those that govern participation by durable medical equipment corporations.  However, those differences are not significant in these cases because Petitioners in both cases concede that CMS is authorized to revoke their participation in Medicare effective June 9, 2011, and to bar them from reenrolling in Medicare.  In both cases Petitioners challenge only one aspect of the contractor’s determinations; that being its determinations to impose reenrollment bars against Petitioners effective July 23, 2017 (C-18-454), and July 30, 2017 (C-18-452).  In both cases Petitioners raise identical arguments, asserting that the bar should have been imposed effective the date of the revocation of their Medicare billing privileges.   Consequently, according to Petitioners in both cases, they should have been eligible to reapply for enrollment years prior to the date when the contractor determined to make Petitioners’ reenrollment bar effective.

I did not originally consolidate these cases.  However it is efficient that I decide them in a single, consolidated decision in which I address only the issue that Petitioners in both cases raise, that being the effective date of the reenrollment bar.  Although my decision is applicable to all three Petitioners, each Petitioner independently may file an appeal if he or it desires to do so.  

It is unnecessary that I admit CMS’s proposed exhibits into evidence in either case inasmuch as I grant summary judgment based on undisputed facts.

II. Findings of Fact and Conclusions of Law

Underlying these cases is Petitioner Robinson’s (C-18-452) June 2011 conviction in a federal court of four felony counts of filing a false income tax return.  Petitioner Robinson was convicted of concealing taxable income in unreported offshore bank accounts.

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The contractor revoked Petitioner Robinson’s (C-18-452) Medicare participation on the ground that he had been convicted of a felony that was determined to be detrimental to the best interests of the Medicare program and its beneficiaries within the previous ten years.  42 C.F.R. § 424.535(a)(3).1  It revoked Petitioner Robinson, DPM PC’s participation (C-18-452) and Petitioner Robinson, DPM PC (DME)’s participation (C-18-454) because these entities are owned by Petitioner Robinson.  Id.2

Although the contractor did not determine to revoke Petitioners’ participation until June 30, 2017, it made its determination retroactive to June 9, 2011, based on Petitioner Robinson’s conviction.  As I have stated, the Petitioners do not challenge that determination to revoke, nor do they challenge the effective revocation date.

However, the contractor also determined that the reenrollment bar of three years would go into effect on July 23, 2017 (C-18-454), and July 30, 2017 (C-18-452), based on the language of the current version of 42 C.F.R. § 424.535(c), which states that a reenrollment bar begins 30 days after the contractor mails notice of its revocation determination.  It is this aspect of the contractor’s determinations in these cases that Petitioners challenge.

Petitioners contend that CMS and its contractor are unlawfully applying the current regulation retroactively to an event (Petitioner Robinson’s felony conviction) that occurred years prior to the effective date of the current version of 42 C.F.R. § 424.535(c).  They contend that the reenrollment bar in their cases should be imposed pursuant to the version of the regulation that was in effect in 2011, when Petitioner Robinson was convicted.  And, they assert that under the older version of the regulation the bar against reenrollment would have become effective as of the date of Petitioner Robinson’s conviction.  Thus, according to Petitioners, their reenrollment bar would have expired years ago and they are eligible now to be readmitted to Medicare as participating providers.  They also argue that in making revocation retroactive to June 2011 and by

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barring reenrollment for three years effective July 23, 2017 (C-18-454), and July 30, 2017 (C-18-452), the contractor and CMS are effectively barring Petitioners from participation for approximately nine years, an enrollment bar that is not permitted by governing law.

I find Petitioners’ arguments to be without merit.  First, I lack authority to hear and decide them.  There is nothing in regulations governing hearing rights of a supplier whose participation is revoked that allows that supplier to challenge the effective date of a reenrollment bar.  See 42 C.F.R. §§ 498.3(b), 498.5.  A contractor’s decision as to an effective date of a reenrollment bar is not an initial determination that gives rise to hearing rights.  See 42 C.F.R. § 498.3(b).  I do not have authority to provide a hearing to an individual or entity if the subject of that individual or entity’s appeal is not encompassed by an initial determination as is defined by regulation.

Furthermore, Petitioner’s argument avoids the plain meaning of the current version of 42 C.F.R. § 424.535(c).  The regulation states that the effective date of an enrollment bar begins 30 days after the contractor mails notice of its determination to revoke.  In these cases, the contractor mailed its determinations on June 23, 2017 (C-18-454), and June 30, 2017 (C-18-452).  The regulation clearly dictates that the reenrollment bar must begin on July 23, 2017 (C-18-454), and July 30, 2017 (C-18-452).  The effective date of the reenrollment bar is not contingent on the date when there is a felony conviction that gives the contractor authority to revoke participation but on the date of the determination to revoke based on that conviction.  The contractor made that determination after the implementation date of the current version of the regulation, and consequently, it is that version’s language that governs the contractor’s determination.

Moreover, the question of which version of the regulation applies is settled law.  The governing date, as I have stated, is the date of the determination to revoke participation.  See Donna Maneice, M.D.,DAB No. 2826 at 1 n.2 (2017) and cases cited therein.

Finally, Petitioners rest their argument on general principles of equity, asserting that it is unfair to impose a bar on reenrollment which, they contend, causes them to incur overpayments of Medicare reimbursement for services that they never would have provided had they known then that their participation would subsequently be revoked and that they would be barred from reenrolling in 2017 instead of at some earlier date or dates.  I have no authority to hear or decide arguments that are grounded on equitable principles challenging CMS’s actions.  US Ultrasound, DAB No. 2302 at 8 (2010).

• 1. The regulation was revised effective February 3, 2015. The contractor and CMS applied the revised version to the case inasmuch as it made its initial revocation determination after the effective date of the revision. See Donna Maneice, M.D., DAB No. 2826 at 1 n.2 (2017).
• 2. CMS also revoked Petitioner Robinson’s participation and Petitioner Robinson, DPM PC’s participation (C-18-452) on the ground that he failed to provide the contractor with notice of his conviction within 30 days as is required by 42 C.F.R. § 424.535(a)(9). It revoked Petitioner Robinson, DPM PC (DME)’s participation (C-18-454) on the additional grounds that it had failed to maintain liability insurance as is required by 42 C.F.R. § 424.57(c)(10) and had failed to notify the contractor of its owner’s conviction within 90 days is as required by 42 C.F.R. § 424.516(e)(2). Petitioners concede all of these additional grounds for revocation.