Nickolas Soumelidis, M.D., DAB CR6016 (2022)

DECISION

The Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor, Palmetto GBA (Palmetto), revoked the Medicare billing privileges of Nickolas Soumelidis, M.D. (Petitioner) pursuant to 42 C.F.R. § 424.535(a)(9) and (12).  CMS revoked because Petitioner failed to report his Pennsylvania medical license suspension, effective March 9, 2016, and because the Petitioner’s appeal rights were exhausted after his January 28, 2017, termination from the Pennsylvania Medicaid program.  Petitioner acknowledges that his license was suspended and that he did not report his license suspension to CMS within 30 days as was required.  Therefore, I affirm CMS’s revocation of Petitioner’s Medicare billing privileges.

I. Applicable Regulations

42 C.F.R. § 424.516(d)(1)(ii) requires physicians, nonphysician practitioners, and physician and practitioner organizations to report any adverse legal action to the Medicare contractor within 30 days.  Specifically, 42 C.F.R. § 424.516(e)(3) includes the 30-day reporting requirement for any revocation or suspension of a Federal or State license or certification.  42 C.F.R. § 424.535(a)(9) provides that CMS may revoke a currently enrolled provider or supplier’s Medicare enrollment for the provider or supplier’s failure to comply with the reporting requirements.  Under 42 C.F.R. § 424.535(a)(12), CMS may revoke a currently enrolled supplier’s Medicare billing privileges and any corresponding supplier agreement when the supplier’s Medicaid

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billing privileges are terminated or revoked by a State Medicaid Agency, once the supplier has exhausted all applicable appeal rights.

II. Background

A. Facts

After relocating to the United States, Petitioner became licensed to practice medicine in the states of Massachusetts, Virginia, Pennsylvania, and Florida.  P. Ex. 10 at 1, CMS Ex. 3 at 2.  On January 22, 2015, Petitioner’s Massachusetts medical license was suspended in connection with a complaint filed against him in 2014.  As a result of the suspension, Petitioner’s licenses in Pennsylvania and Virginia were also suspended.  CMS Ex. 3 at 2.  Petitioner does not dispute that although the Pennsylvania Board of Medicine suspended his license to practice medicine and surgery effective March 9, 2016, he did not report the suspension as an adverse action to CMS.  He also acknowledges that he did not report the suspension of his Massachusetts license to CMS.  Id. at 2.

Following the suspension of his Pennsylvania license to practice medicine and surgery, the Pennsylvania Department of Human Services terminated Petitioner’s enrollment in the Pennsylvania Medicaid program effective January 28, 2017.  CMS Ex. 1 at 2; P. Ex. 3 at 3.  While Petitioner does not deny the enrollment termination, Petitioner asserts that he never received the termination notification.  P. Ex. 10 at 3, ¶ 11.

On April 10, 2019, Palmetto GBA notified Petitioner that his Medicare privileges were revoked as of May 10, 2019.  CMS Ex. 2; P. Ex. 10 at 4, ¶ 15.  The revocation was based on Petitioner’s failure to notify CMS of the March 9, 2016 suspension of his Pennsylvania medical license.  42 C.F.R. § 424.535(a)(9).  Palmetto GBA also based the revocation on its assertion that Petitioner was informed on January 26, 2017, that he had been terminated from the Pennsylvania Medicaid program and his appeal rights were exhausted.  42 C.F.R. § 424.535(a)(12).  CMS Ex. 1 at 2; P. Ex. 3 at 3.  Pursuant to 42 C.F.R. § 424.535(c), Palmetto also explained that effective May 10, 2019, it was establishing a re-enrollment bar for a period of two years.  CMS Ex. 2.

Following a hearing on June 2, 2015, regarding the Massachusetts complaint, an administrative magistrate issued a decision on May 2, 2016.  Thereafter, the administrative magistrate issued an “Amended Recommended Decision” on April 26, 2017, finding no basis to discipline the Petitioner.  P. Ex. 4 at 17.  On September 14, 2017, the Commonwealth of Massachusetts Board of Registration in Medicine adopted the Recommended Decision and dismissed the complaint.  P. Ex. 5.  The Petitioner then requested the Pennsylvania Board of Medicine to reinstate his license to a “non-suspended, expired” status.  P. Ex. 10 at 4.  Citing a number of assurances, including the

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Petitioner’s declaration that he did not intend to renew his Pennsylvania license and his intention to relinquish his license in the Commonwealth of Pennsylvania, the Board reinstated Petitioner’s license to practice as a medical physician and surgeon to non-suspended, expired status on July 18, 2019.  P. Ex. 7.  The Pennsylvania Department of Human Services also converted the Petitioner’s status to “non-excluded” as of July 18, 2019.  P. Ex. 10 at 4, ¶ 16.

B. Procedural Background

On July 3, 2019, CMS issued an unfavorable decision and sustained the revocation of Petitioner’s Medicare privileges under 42 C.F.R. § 424.535(a)(9) and (a)(12).  Petitioner timely submitted a request for hearing before an Administrative Law Judge (ALJ) on July 30, 2019.  In its request, Petitioner argues that a two-year re-enrollment bar is excessive and would result in the termination of his employment and cause irreparable damage to his reputation.  Petitioner requests that the revocation of his Medicare billing privileges be reversed and that he be reinstated as a Medicare provider retroactive to May 10, 2019.

On August 5, 2019, the presiding ALJ1 issued an Acknowledgment and Pre-Hearing Order (Order), setting forth the pertinent deadlines for the parties to submit written briefs, sworn written testimony, and proposed exhibits.  The Order explained that an in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.  Order at ¶ 10.  The Order clarified that Petitioner may not offer new documentary evidence in the case absent a showing of good cause for failing to present that evidence to CMS.  The Order also provided that if Petitioner offered new evidence, the evidence must be specifically identified as new, and Petitioner’s brief must explain why good cause exists for its receipt into evidence.  Order at ¶ 6; see also 42 C.F.R. § 498.56(e).

42 C.F.R. § 498.56(e)(1) provides:  “After a hearing is requested but before it is held, the ALJ will examine any new documentary evidence submitted to the ALJ by a provider or supplier to determine whether the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.”  42 C.F.R. § 498.56(e)(2)(i) further provides that “if the ALJ finds good cause for submitting new documentary evidence for the first time at the ALJ level, the ALJ must include the evidence and may consider it in reaching a decision.”  Conversely, if good cause does not exist, the ALJ must exclude the evidence from the proceeding and may not consider it in reaching a decision.  42 C.F.R. § 498.56(e)(2)(ii).

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CMS filed its pre-hearing brief2 and submitted six proposed exhibits (CMS Exs. 1-6) on September 9, 2019, none of which were witness testimony.  Petitioner filed his pre-hearing brief and an opposition to CMS’s motion for summary judgment on October 8, 2019.  Petitioner submitted ten proposed exhibits (P. Exs.1-10), none of which were witness testimony.  In his brief, Petitioner acknowledges that P. Exs. 6, 7, and 8 are documents that Petitioner received after Petitioner’s May 2, 2019 request for reconsideration.  These documents are dated July 30, 2019, July 18, 2019, and September 26, 2019, respectively.  I note that P. Exs.  7 and 8 are orders issued by the Pennsylvania Board of Medicine after Petitioner’s request for reconsideration.  Petitioner explained that P. Ex. 6 documents the July 18, 2019 action taken by the Pennsylvania Board of Medicine.  Clearly, these documents were not available for submission when Petitioner filed his request for reconsideration and good cause exists for their submission at the ALJ level.  I also note that neither party filed objections to opposing party exhibits.

Accordingly, I receive CMS Exs. 1-6 and P. Exs. 1-10 into the record.

As neither party submitted written direct testimony, a hearing is unnecessary for the purpose of cross-examination of witnesses.3  Order at ¶ 10.  As an in-person hearing is not necessary, I decide this matter based on the parties’ written submissions.  Order ¶ 11; see also fn. 2.

III. Issue

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare billing privileges based on Petitioner’s failure to comply with 42 C.F.R. § 424.535(a)(9) and because the Petitioner’s appeal rights were exhausted under 42 C.F.R. § 424.535(a)(12).

IV. Jurisdiction

I have jurisdiction to decide this case. 42 C.F.R. §§ 424.545(a), 498.3(b)(17), 498.5(e).

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V. Findings of Fact, Conclusions of Law, and Analysis4

1.  CMS had a legitimate basis to revoke Petitioner’s Medicare billing privileges because Petitioner did not comply with 42 C.F.R. § 424.535(a)(9)

Under 42 C.F.R. § 424.535(a)(9), CMS may revoke a currently enrolled supplier’s Medicare billing privileges if the supplier does not comply with the reporting requirements in section 424.516(d)(1)(ii).

Section 424.516(d)(1)(ii) provides that physicians and non-physician practitioners must report any adverse legal action within 30 days of occurrence.  Furthermore, under section 424.502, the suspension of a license to provide health care by any State licensing authority is considered a final adverse action.  Thus, a failure to timely report the suspension of a medical license is a basis to revoke a physician’s Medicare enrollment and billing privileges.  Id.; § 424.535(a)(9).

There is no dispute that the Pennsylvania Medical Board suspended the Petitioner’s medical license effective March 9, 2016.  Petitioner did not report the suspension during the following 30 days.

Petitioner argues that he was not practicing medicine in Pennsylvania at the time of his suspension and had not intended to do so in the future.  He contends that he did not believe it was necessary for him to concern himself with the Pennsylvania suspension, especially when he was focusing his efforts and finances on defending the Massachusetts action.  He argues that it was his understanding the favorable resolution of the Massachusetts matter would eventually resolve the collateral action taken by the Pennsylvania Board of Medicine.  P. Ex. 10 at 2.

Petitioner’s mistaken assumptions about his duty to report the license suspension or his mistaken belief that the resolution of the Massachusetts action would also resolve the Pennsylvania action is not a basis to reverse the revocation of his Medicare billing privileges.  As noted by the Board, section 424.10(d)(3) of the regulations requires a supplier to be “aware of, and abide by, all applicable statutes, regulations, and program instructions.”  Realhab, Inc., DAB No. 2542 at 17 (2013).  As the Board has observed:  “Medicare suppliers are presumed to have constructive notice of the statutes and regulations that govern their participation as a matter of law.”  Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 8 (2011); see also John Hartman, D.O., DAB No. 2564 at 3 (2014) (citing Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 53, 63 (1984)).  Thus, a party’s misunderstanding or ignorance of the regulations is not a

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defense.  See Emmanuel Brown, M.D., & Simeon K. Obeng, M.D., DAB No. 2542 at 17 (2013).

In arguing that the revocation of privileges should be reversed, Petitioner also relies on the fact that the basis for the Massachusetts suspension was ultimately resolved.  P. Ex. 10 at 2.  Petitioner submits that on July 18, 2019, the Pennsylvania Board of Medicine issued a “Final Order Reinstating License to Unrestricted, Non-Probationary, Expired Status,” and on September 26, 2019, the Pennsylvania Board of Medicine issued a “Final Order Accepting Voluntary Surrender of License.”  Thus, Petitioner argues that because there are no pending actions or discipline associated with the Pennsylvania medical license, there is an additional basis to reverse the revocation.  P. Ex. 10 at 4.

Accepting that the Petitioner was ultimately exonerated by the State of Massachusetts and that the Pennsylvania Board of Medicine reinstated the Petitioner’s license to a non-suspended expired status, such actions did not obviate Petitioner’s obligation to notify CMS of the medical license suspension within 30 days of the suspension.  The Petitioner’s reporting requirement cannot be cured by the ultimate resolution of the circumstances underlying the suspension.  The Board has determined that an emergency suspension of a license is a basis for revocation of a physician’s billing privileges, even if the physician ultimately prevails in the disciplinary action.  Akram A. Ismail, M.D., DAB No. 2429 at 5-8 (2011).  Moreover, a temporary suspension of a medical license, even when not final and still under appeal constitutes an “adverse legal action” under the regulations.  Id. at 9-11.

In defense of his failure to report the suspension of his medical license within 30 days of March 9, 2016, Petitioner asserts that he later did so in or around June 2017.  Petitioner asserts that in June 2017, he instructed his credentialing specialist to disclose the Massachusetts matter, including the favorable result, as well as the suspension of his Pennsylvania medical license, to CMS in connection with a Medicare application.  Petitioner argues that the enrollment application was processed and approved.  P. Ex. 10 at 3.  Although Petitioner may have reported these prior suspensions in his 2017 enrollment application, his doing so does not rectify his failure to do so within the 30 days following March 9, 2016.  The fact that his 2017 application was approved does not remedy his non-compliance with 42 C.F.R. § 424.535(a)(9) in 2016.

Thus, Petitioner was required to report his Pennsylvania license suspension to Palmetto, his Medicare contractor, within 30 days of March 9, 2016.  Petitioner did not do so, and CMS had a legal basis to revoke Petitioner’s billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).

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2.  Whether CMS had a legal basis to revoke Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(12) is inconsequential as a separate basis for revocation.

In its unfavorable decision dated July 3, 2019, CMS also cites 42 C.F.R. § 424.535(a)(12) as a basis for the revocation of Petitioner’s Medicare’s billing privileges.  CMS Ex. 1 at 3.  CMS asserts that the Petitioner was informed in a letter dated January 26, 2017, that he was terminated from the Pennsylvania Medicaid program and that his appeals rights with respect to this termination were exhausted.  CMS Ex. 2 at 1.

Petitioner argues that he never received notification of his termination as a Pennsylvania Medicaid provider.  He asserts that at the time that the notice was allegedly mailed in or around January 26, 2017, he was renting his residence to a third-party and asked the United States Postal Service to forward his mail.  Petitioner argues that even though he moved back to his residence in mid-2017, he never received a copy of the termination notice.  P. Br. at 9; P. Ex. 10 at 3.  CMS takes the position that the Medicaid termination notice was mailed to the same address as the address where Palmetto sent the April 10, 2019 revocation letter, which Petitioner received.  CMS Ex. 1 at 3.  Further, CMS asserts that the termination from the Pennsylvania Medicaid program was deemed to be received by Petitioner within five days of mailing in the absence of evidence to the contrary.  CMS Br. at 6.

Having concluded that CMS had a legal basis to revoke Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(9), based on his failure to report his Pennsylvania medical license suspension, it is not necessary to decide whether there is also a basis to revoke Petitioner’s billing privileges under 42 C.F.R. § 424.535(a)(12).  The Board has determined that if one legal basis for revocation is established, CMS’s actions would be sustained “regardless of the existence of any additional bases for revocation.”  Witz & Family Healthcare Clinic, APMC, DAB No. 2864 at 12 (2018).  So long as CMS demonstrates that one of the regulatory bases for revocation exists, I must uphold the revocation.  Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018) (citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016)).  Thus, even if Petitioner prevailed in its argument concerning the revocation of billing rights pursuant to 42 C.F.R. § 424.535(a)(12), I must uphold the revocation pursuant to 42 C.F.R. § 424.535(a)(9).

3.  I do not have jurisdiction to review the length of the re-enrollment bar imposed by CMS

In his brief, the Petitioner asserts that the two-year re-enrollment bar imposed by CMS is excessive.  Petitioner submits that the imposition of the two-year enrollment bar should be applied only in cases where providers knowingly and intentionally engaged in

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improper conduct and not where the un-reported actions were wholly resolved in the provider’s favor.  P. Br. at 11.

I am unable to consider Petitioner’s arguments.  The length of the re-enrollment bar CMS imposes is not a determination subject to review by an ALJ or the Board.  Vijendra Dave, M.D., DAB No. 2672 at 9. (2016).

4. Petitioner’s equitable arguments are not a basis to reverse the revocation of his Medicare billing privileges.

Petitioner argues that this case is about “the excessive, unnecessary, and draconian consequences sought to be imposed by CMS against a provider who was wrongfully accused of engaging in an improper relationship with a patient and was later fully vindicated.”  P. Br. at 2.  Citing 42 C.F.R. § 424.535(a), Petitioner further argues that the decision to revoke a Medicare provider’s billing privileges is permissive and not mandatory as the statutory language states that “CMS may revoke a currently enrolled provider or supplier’s Medicare billing privileges.”  P. Br. at 7 (emphasis added).  Petitioner further submits that in considering whether to revoke his billing privileges, CMS did not consider all the relevant factors such as the ultimate resolution of the Massachusetts complaint and the subsequent actions of the Pennsylvania Board of Medicine.  Petitioner also maintains that he has maintained compliance because at the time of the revocation, he was “exclusively providing services in the State of Florida where he maintains an active and unencumbered medical license.”  P. Br. at 7.  As an additional mitigating factor, Petitioner argues that during a 2017 Medicare enrollment process, he instructed his credentialing specialist to disclose to CMS the Massachusetts matter, as well as the suspension of his Pennsylvania medical license, and that application was ultimately processed and approved.  P. Br. at 7; P. Ex. 10 at 3.

Despite the Petitioner’s assertions that CMS did not consider all the potentially mitigating factors in its decision to revoke his billing privileges, CMS’s deliberative process is not a basis for me to reverse the revocation.  CMS’s discretionary act to revoke a provider or supplier is not subject to review based on equity or mitigating circumstances.  Letantia Bussell, M.D., DAB No. 2196 at 12-13 (2008).  Once CMS establishes a legal basis on which to proceed with a revocation, the CMS determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  Id. at 10; see also Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d., Ahmed v. Sebelius, 710 F.Supp. 2nd 167 (D. Mass. 2010).

Because I have determined that CMS had a legal basis to revoke Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(9), the regulations do not permit me to substitute my discretion for that of CMS in determining whether revocation is

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appropriate under all the circumstances.  Petitioner asserts that “this revocation has had and continues to cause irreparable damage to my otherwise flawless reputation in the community and has also had a devastating financial impact on me and my family.”  P. Ex. 10 at 5, ¶ 19.  I may not, however, set aside the lawful exercise of discretion by CMS or its contractor to provide equitable relief to the Petitioner.  Neither an ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements. US Ultrasound, DAB No. 2392 at 8 (2010); see also Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and the Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements).  Thus, I do not have authority to grant Petitioner equitable relief in this matter.

VI. Conclusion

For the reasons explained above, I affirm the revocation of Petitioner’s Medicare billing privileges pursuant to 42 C.F. R. § 424.535(a)(9).

1. The case was initially assigned to a different ALJ and then transferred to the undersigned.
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2. In conjunction with its brief, CMS filed a motion for summary judgment. Because this matter may be decided on the record, I need not rule on the motion for summary judgment.
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3. The Departmental Appeals Board (Board) has long held that convening a hearing is unnecessary “where no witness testimony is offered or all witness testimony is completed in writing and no cross-examination is sought.” George Yaplee Med. Ctr., DAB No. 3003 at 5 (2020); see Marcus Singel, D.P.M., DAB No. 2609 at 6 (2014).
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4. My findings of fact and conclusions of law are set forth in italics and bold font.
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