Srinivas Prasad R. Jolepalem, M.D., DAB CR6053 (2022)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative contractor, revoked the Medicare billing privileges of Srinivas Prasad R. Jolepalem, M.D. (Dr. Jolepalem or Petitioner) pursuant to 42 C.F.R. § 424.535(a)(9) for failure to report a license suspension, and pursuant to 42 C.F.R. § 424.535(a)(8)(ii) because he billed Medicare for services he provided while his license was suspended.  Dr. Jolepalem timely requested a hearing.  Based on the evidence of record, I conclude that Dr. Jolepalem failed to report his license suspension within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii).  Therefore, I affirm CMS’s determination to revoke Dr. Jolepalem’s Medicare enrollment and billing privileges, effective July 4, 2019.  I also affirm CMS’s determination to impose a three (3) year re enrollment bar and to place Petitioner on the preclusion list.

I. Case Background and Procedural History

Petitioner is a physician who was enrolled to provide health care services to Medicare beneficiaries and to receive reimbursement from the Medicare program. On June 4, 2019, a CMS administrative contractor revoked Petitioner’s Medicare billing privileges,

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effective July 4, 2019, based on 42 C.F.R. § 424.535(a)(8)(ii) and (a)(9). The notice also imposed a three-year re-enrollment bar beginning July 4, 2019, pursuant to 42 C.F.R. § 424.535(c). CMS Ex. 1; CMS Ex. 5 at 2. Specifically, the administrative contractor determined that Petitioner’s medical license had been suspended effective January 16, 2019.  Further, the administrative contractor determined that Petitioner failed to report the suspension to the Medicare contractor as required by 42 C.F.R. § 424.516(d)(1)(ii). CMS Ex. 3; CMS Ex. 5 at 1.

On July 5, 2019, Petitioner filed a request for reconsideration with the CMS administrative contractor. CMS Ex. 6.  Petitioner acknowledged that his medical license was suspended for a period of 30 days beginning January 16, 2019, and that he immediately ceased his medical practice on January 18, 2019, after he became aware of the date of his suspension. He asserts that he inadvertently provided services to four patients on January 18, 2019, as he was not aware of the suspension until after he had provided those services. Petitioner also argues that the billings were inadvertent, and therefore, were not a pattern or practice of abusive billing. Further, he stated that he had informed the group to whom he had assigned his billing privileges that he was no longer a licensed physician beginning January 16, 2019. Additionally, he argues he had no supervisory control over the individual that billed for the services provided to those four patients. CMS Ex. 9 at 3.

On August 21, 2019, CMS issued a reconsidered determination.  CMS Ex. 1. CMS upheld the revocation of Petitioner’s billing privileges and the three-year re-enrollment bar, concluding that both were issued correctly in accordance with 42 C.F.R. § 424.535(a)(8)(ii) and (a)(9). CMS Ex. 1.

On September 13, 2019, CMS notified Petitioner that he was being added to the CMS preclusion list effective February 1, 2020, pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100 and 423.120(c)(6) because his Medicare privileges have previously been revoked and he was under a reenrollment bar. CMS Ex. 10.

On October 2, 2019, Petitioner timely filed a request for a hearing with the Departmental Appeals Board, Civil Remedies Division regarding the August 21, 2019 reconsidered decision upholding the revocation of Petitioner’s billing privileges and the three-year enrollment bar. The case was originally assigned to another administrative law judge and docketed as Case No. C-20-8. On October 10, 2019, an Acknowledgment and Pre-hearing Order (Pre-hearing Order) was issued by that administrative law judge.

On November 14, 2019, CMS timely filed a Motion for Summary Judgement and eight exhibits. On December 19, 2019, Petitioner timely filed a Pre-Hearing Brief in Opposition to CMS’s Motion for Summary Judgement (P. Br.), two exhibits, and identified two proposed witnesses. On December 20, 2019, CMS objected to Petitioner’s proposed witness, Christian Cruz, and the related declaration (P. Ex. 1). CMS argued

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that the witness testimony was not in the correct form as directed by the Pre-hearing Order. That order directs that such testimony must be submitted in the form of an affidavit made under oath or as a written declaration made under penalty of perjury for false testimony.  In support of the objection CMS further cites Roth V. Illinois Farmers Insurance Co., 782 N.E.2d 212, 214 (Ill. 2002); 28 U.S.C. § 1746; Medtrac Solutions, DAB CR4176 at 3 (2015). I sustain the objection to the witness testimony submitted as P. Ex. 1, and it is excluded. Petitioner’s Exhibit 2 is admitted as no objection was noted as to it.

On February 2, 2020, Petitioner filed a timely request for hearing with the Departmental Appeals Board, Civil Remedies Division regarding Petitioner being added to the CMS preclusion list.  This case was also originally assigned to another administrative law judge and was docketed as Case No. C-20-320.

On February 26, 2020, the two hearing requests were consolidated under Case No. C 20 320, and Case No. C-20-8 was dismissed.  The Pre-Hearing Order filed in C 20-8 remaining in effect, except for allowing supplemental submissions of briefs and exhibits pertaining to the preclusion list issue.   

On March 30, 2020, CMS filed a Supplemental Brief in Support of its Motion for Summary Judgment and exhibits 9-11. On May 6, 2020, Petitioner filed a Supplemental Brief in Opposition to CMS’s Motion for Summary Judgment (P. Supp. Br.) and no additional exhibits.  Petitioner further did not object to any proposed exhibits submitted by CMS. There being no objection to CMS’s proposed exhibits, they are admitted as CMS Exs. 1-11.  On January 20, 2022, the cases were transferred to me to hear and decide. 

II. Decision on the Record

CMS offered no witness testimony.  Although Petitioner has submitted testimony that is subject to cross-examination, (P. Ex. 2), CMS has not requested the opportunity to cross-examine that witness. The Pre-hearing Order advised the parties that an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine the witness.  Pre-hearing Order ¶ 9; see Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross-examine those witnesses). Therefore, a hearing in this case is unnecessary and I decide this case based on the written record.  CRDP §§ 16(b), 19(b), (d). The motions for summary judgement are therefore moot.

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III. Issues

1. Whether CMS had a legitimate basis to revoke Petitioner’s billing privileges under 42 C.F.R. § 424.535(a)(8)(ii) and (a)(9).

2. Whether CMS had a legitimate basis to place Petitioner on the preclusion list pursuant to 42 C.F.R. §§ 422.2 and 423.100.

IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(17), (b)(20), 498.5(l)(2), (n)(2); see also 42 U.S.C. § 1395cc(j)(8).

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

My findings of fact and conclusions of law are set forth in italic and bold font.

1. On January 16, 2019, the Illinois Department of Financial and Professional Regulation suspended Petitioner’s medical license.

Petitioner acknowledges his Illinois medical license was suspended for 30 days beginning January 16, 2019, by the Illinois Department of Financial and Professional Regulation. P. Br. at 1; P. Supp Br. at 1.

2. CMS had a legitimate basis to revoke Petitioner’s billing privileges in the Medicare program under 42 C.F.R. § 424.535(a)(9), because Petitioner failed to report that his medical license was suspended within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii).

Any physician who participates in the Medicare program is considered a “supplier.”  42 U.S.C. § 1395x(d). The regulation at 42 C.F.R. § 424.535(a)(1) authorizes CMS to revoke a currently enrolled supplier’s billing privileges if CMS determines that the supplier no longer meets the enrollment requirements for its supplier type, subject to an opportunity for the supplier to make corrections before revocation.

Among the applicable requirements for a supplier to maintain enrollment is compliance with the applicable federal and state licensure requirements for his supplier type.  42 C.F.R. § 424.516(a)(2). Relevant to this case, a “physician” for Medicare program purposes is “a doctor of medicine . . . legally authorized to practice medicine and surgery by the State in which he performs such function or action.”  42 U.S.C. § 1395x(r)(1); 42 C.F.R. § 410.20(b).

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To enroll in Medicare as a supplier and receive billing privileges, Petitioner needed to be recognized as a licensed physician.  Petitioner does not dispute that his medical license was suspended on January 16, 2019. CMS Ex. 1.  When the Medical Board suspended Petitioner’s medical license, Petitioner no longer met the enrollment requirements of 42 C.F.R. §§ 410.20(b) and 424.516(a)(2). As Petitioner was no longer a licensed physician, CMS had a legitimate basis to revoke Petitioner’s Medicare billing privileges.  42 C.F.R. § 424.535(a)(1).

As CMS had a legitimate basis for revocation of Petitioner’s Medicare billing privileges pursuant to 42 C.F.R.§ 424.535(a)(1), it is unnecessary to discuss whether a legitimate basis exists under 42 C.F.R. § 424.535(a)(9).

3. When CMS revoked Petitioner’s billing privileges, the regulations required CMS to impose a re-enrollment bar that is at least one year in duration.

Whenever CMS has properly imposed a revocation on a supplier, CMS must also determine how long the supplier will be barred from seeking re-enrollment as a supplier. The regulations at 42 C.F.R. § 424.535(c)(1) provide that the re-enrollment bar “[b]egins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 3 years, depending on the severity of the basis for revocation.”

CMS has imposed a three-year re-enrollment bar for Petitioner. CMS Ex. 5 at 2. I cannot consider Petitioner’s arguments related to the length of the re-enrollment bar. The length of the re-enrollment bar CMS imposes is not a determination subject to review by an administrative law judge. Vijendra Dave, M.D., DAB No. 2672 at 9 (2016) (stating that “our authority in a revocation case does not extend to reviewing the length of the enrollment bar imposed by CMS.”). I am bound by the regulations because they have the force and effect of federal law. See Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979); 18661CPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

4. CMS determined that the conduct underlying Petitioner’s Medicare revocation was detrimental to the best interests of the Medicare program.

Although Petitioner argues that the billing was inadvertent and was not a pattern or practice, the CMS hearing officer provided the following discussion in the reconsidered determination:

Dr. Jolepalem has reassigned his billing privileges to Chicago Medical Physicians, LLC, and hence, he had a responsibility to ensure the propriety and compliance of the claims submitted on his behalf.  Dr. Jolepalem failed to verify the services billed on his behalf even though he was aware of his

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license suspension.  As a result, CMS finds Dr. Jolepalem’s conduct to be serious given that payment in the Medicare program is made in a way that relies on the integrity and diligence of its partners.

Furthermore, the revocation of Dr. Jolepalem’s Medicare billing privileges was based on his failure to timely report the suspension of his 2019 medical license.  In 2019, his license was suspended because he failed to notify the Illinois Department of Financial and Professional Regulation (IDFPR) of his resignation from the Madden Mental Health Center, to avoid being discharged for cause (see Exhibit 6).  Further, Dr. Jolepalem has a history of adverse actions that CMS finds relevant to his revocation and addition to the CMS Preclusion List.  In 2014, the IDFPR suspended his medical license for improperly prescribing controlled substances (see Exhibit 6). Dr. Jolepalem’s actions present a potential danger to the health, safety, and welfare of Medicare beneficiaries. Dr. Jolepalem’s careless conduct demonstrates that he is unwilling or unable to be a reliable partner in the Medicare program.  CMS relies on providers and suppliers to timely disclose reportable adverse actions to appropriately screen them for continued enrollment in the Medicare program.  As a result, CMS deems the conduct underlying the revocation of Dr. Jolepalem’s Medicare billing privileges to be detrimental to the best interests of the Medicare program and having a negative impact on the integrity of the Medicare program.

CMS Ex. 1 at 3-5.

By signing the consent order in December 2018, Petitioner knew his license was going to be suspended shortly after the state licensing body signed it.  CMS Ex. 6 at 6. Therefore, I cannot accept Petitioner’s argument that he was surprised when his license was suspended in January 2019.

Accordingly, I conclude CMS had legitimate bases for finding Petitioner’s actions detrimental to the Medicare program.

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5. CMS had a legitimate basis to add Petitioner to its preclusion list, effective January 1, 2019.

CMS revoked Petitioner’s Medicare billing privileges effective July 4, 2019, and, at that time, it imposed a three-year reenrollment bar.  CMS Ex. 5 at 2. As such, the first two requirements for inclusion on the preclusion list are met.  42 C.F.R. §§ 422.2, 423.100.

As for the third requirement listed in 42 C.F.R. §§ 422.2 and 423.100, CMS determined that Petitioner’s conduct underlying his revocation was detrimental to the best interests of the Medicare program. CMS Ex. 5. Thus, CMS had a legitimate basis for placing the Petitioner on the preclusion list.

Petitioner has also requested relief on equitable grounds stating he did not open his email informing him of his license suspension until January 18, 2019. Further, he argues that he informed those to whom he had assigned his billings rights that he was no longer a licensed physician and he had no control over of those individuals. I do not have the authority to grant equitable relief. US Ultrasound, DAB No. 2302 at 8 (2010) (stating “neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”). I have no authority to declare statutes or regulations invalid. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).

I can review whether the regulations authorize CMS’s actions. Once CMS establishes a legitimate basis for placement of the petitioner on the preclusion list, as it has done here, I am bound to uphold that action. Wendell Foo, M.D., DAB No. 2904 at 3 (2018); Wassim Younes, M.D. and 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)). I am bound by the regulations because they have the force and effect of federal law. See Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979); 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

VI. Conclusion

I affirm CMS’s revocation of Petitioner’s Medicare billing privileges. I also affirm CMS’s determinations to impose upon Petitioner a three (3) year re enrollment bar and to include Petitioner on the preclusion list.