Syed M. Aziz, M.D., DAB CR6138 (2022)

DECISION

On December 18, 2020, the Centers for Medicare & Medicaid Services (CMS), sustained its administrative contractor, Novitas Solutions (Novitas) in revoking the Medicare billing privileges for Syed M. Aziz, M.D. (Petitioner) effective October 21, 2019.  In doing so, CMS relied on 42 C.F.R. § 424.535(a)(2) because the United States Department of Health and Human Services Office of Inspector General (OIG) excluded Petitioner on June 18, 2020, from participation in any capacity in the Medicare, Medicaid, and all Federal health care programs.  Departmental Appeals Board Electronic Filing System (DAB E-File) Dkt. C-21-347, Document (Doc.) 1a; Petitioner Exhibit (P. Ex.) 4.  CMS also relied on 42 C.F.R. § 424.535(a)(9) for the revocation because Petitioner did not report his OIG exclusion within 30 days.  Request For Hearing (RFH) at 4-5.  While Petitioner argues that the OIG’s decision was erroneous, Petitioner does not deny the OIG’s exclusion or deny that he failed to comply with the reporting requirement under 42 C.F.R. § 424.535(a)(9).  CMS placed Petitioner on its Preclusion List effective December 18, 2020 and established a re-enrollment bar effective until June 19, 2025.  I affirm CMS’s revocation of Petitioner’s billing privileges, as well as Petitioner’s placement on the Preclusion List and the re-enrollment bar until June 19, 2025.

Page 2

I.     Applicable Regulations

Under 42 C.F.R. § 424.535(a)(2), CMS may revoke a supplier’s Medicare enrollment if the supplier, or any owner, managing employee, or health care personnel of the provider or supplier is excluded from the Medicare, Medicaid, and any other Federal health care program.

Section 1128B(f)(1) (42 U.S.C. § 1320a-7b(f)(1)) of the Social Security Act (Act) defines a “Federal health care program” to be any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government.¹

42 C.F.R. § 424.516(d)(1)(ii) requires all physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations to report any adverse legal action to the Medicare contractor within 30 days.  Under 42 C.F.R. § 424.535(a)(9), CMS has the authority to revoke a currently enrolled supplier’s Medicare enrollment and any corresponding supplier agreement if the supplier did not comply with the reporting requirements specified in 42 C.F.R. § 424.516(d).

II.     Background

A. Facts

On February 22, 2017, a grand jury in the United States District Court for the Northern District of Texas, Dallas Division charged Petitioner and 15 others with conspiring to defraud Medicare and Medicaid in connection with payments for hospice services, namely Novus Health Services and Optim Health Services, Inc. (Novus), in violation of 18 U.S.C. § 1347.²  CMS Ex. 1 at 8-11.  The underlying matter in the United States District Court case is herein identified as U.S. v. Harris.

Page 3

With respect to Petitioner, the indictment avowed that he conspired with other defendants to prepare certificates of terminal illness for new beneficiaries who were not previously on hospice and recertifications of terminal illness for beneficiaries already on hospice, which falsely indicated that the beneficiaries either were or continued to be hospice eligible.  CMS Ex. 1 at 11.  On February 28, 2017, Petitioner was arrested and arraigned.  CMS Ex. 2 at 6-7.

On July 30, 2019, Petitioner signed a plea agreement, pleading guilty to a violation of 42 U.S.C. § 1320a-7b(e).  CMS Ex. 11 at 1, 7.  Specifically, Petitioner pled guilty to a violation of terms as a participating physician under 42 U.S.C. § 1395u(h)(1), which requires Petitioner to be knowledgeable of all terms under the CMS program, contract, and manual.³  CMS Ex. 11 at 1.  On December 5, 2019, a United States Magistrate Judge accepted the plea agreement and sentenced Petitioner to one year of probation and a fine of $2,000.  CMS Ex. 11 at 10, 13-14.

On May 29, 2020, the OIG notified Petitioner that effective June 18, 2020, he was excluded from participation in any capacity in the Medicare, Medicaid, and all Federal health care programs as defined in section 1128B(f) of the Act for a minimum of five years.  The letter further stated that the exclusion is due to Petitioner’s “conviction as defined in section 1128(i) (42 U.S.C. [§] 1320a-7(i)), in the United States District Court, Northern District of Texas, Dallas Division, of a criminal offense related to the delivery of an item or service under the Medicare or State healthcare program, including the

Page 4

performance of management or administrative services relating to the delivery of items or services, under any such program.”  CMS Ex. 6 at 1.

 B. Procedural History

On July 14, 2020, Novitas notified Petitioner that his Medicare privileges were revoked effective October 21, 2019, pursuant to 42 C.F.R. § 424.535(a)(2), (a)(3) and (a)(9) due to Petitioner’s June 18, 2020 exclusion by the OIG from all Federal health care programs, a felony conviction, and his failure to report his felony conviction.  The letter also explained that Petitioner’s name would be added to the CMS Preclusion List and that all claims for health care items or services furnished or pharmacy claims may be denied while Petitioner remains on the Preclusion List.  Further, CMS established a re-enrollment bar effective 30 days after the postmark for the July 14, 2020 letter and advised Petitioner he would not be eligible to re-enroll until October 22, 2029.  CMS Ex. 7 at 1-3.

In Petitioner’s August 13, 2020 reconsideration request, Petitioner maintained there was no felony conviction and that Petitioner had instead pled guilty to a misdemeanor offense.  CMS Ex. 8 at 1-2.  In a December 18, 2020 reconsideration decision, CMS acknowledged that there was neither a felony conviction nor a failure to timely report a felony conviction and overturned the revocation of Medicare enrollment as it pertains to 42 C.F.R. § 424.535(a)(3).  However, CMS sustained the Medicare revocation based on the OIG’s exclusion and Petitioner’s failure to timely report the exclusion pursuant to 42 C.F.R. § 424.535(a)(2) and (9).  CMS upheld Petitioner’s inclusion on the Preclusion List, effective the decision date, but revised the re-enrollment bar to end on June 19, 2025.  CMS Ex. 9 at 5-8.  On January 5, 2021, Petitioner requested a hearing before an administrative law judge to review CMS’s decision.  RFH.

On January 11, 2021, the Administrative Law Judge (ALJ)⁴ issued an Acknowledgment and Pre-Hearing Order (Order) that set deadlines for the parties to submit written briefs, sworn testimony, and proposed exhibits.  DAB E-file Dkt. C-21-347, Docs. 2, 2(a).  The Order also specified that Petitioner may not offer new documentary evidence in this case absent a showing of good cause for failing to present that evidence previously to CMS.  The Order further specified that if Petitioner offers such evidence, the evidence must be specifically identified as new, and Petitioner’s brief must explain why good cause exists for the ALJ to receive it.  The Order confirmed that pursuant to 42 C.F.R. § 498.56(e), the ALJ must exclude any new evidence for which a showing of good cause has not been made.  Order at 5, ¶ 6.

Page 5

On February 4, 2021, Petitioner filed a supplemental request for hearing (Supp. RFH) to include a request for the ALJ to review the OIG’s decision.  Petitioner argues that because CMS “relies exclusively upon the decision made by the OIG in its own decision,” the merits of the OIG decision must be considered.  Supp. RFH at 2.  Petitioner attached and marked the OIG’s May 29, 2020 notice of exclusion, which notifies Petitioner of his exclusion from participation in the Medicare, Medicaid, and all Federal health care programs, as Exhibit 1.  Supp. RFH at 9-10.

On February 19, 2021, CMS filed a motion for summary judgment and, in the alternative, its pre-hearing brief (CMS Br.).  CMS included a proposed exhibit and witness list (DAB E-file Dkt. C-21-347, Doc. 7b), and 12 proposed exhibits (CMS Exs. 1-12), none of which were witness testimony.

On March 22, 2021, Petitioner filed a pre-hearing brief and opposition to CMS’s motion for summary judgment. (P. Br.).  Petitioner attached 12 proposed exhibits (P. Exs. 1-12), none of which were witness testimony.  Petitioner’s Exhibits 9, 10, and 11 are signed plea agreements by three of the other defendants in U.S. v. Harris.  CMS responded on April 6, 2021, by filing objections to Petitioner’s exhibits, including Petitioner’s February 4, 2021 supplemental request for hearing.  CMS argues that Petitioner’s Exhibits 9, 10, and 11 constitute new documentary evidence and that Petitioner failed to establish good cause for the admissibility of these documents under 42 C.F.R. § 498.56(e)(2)(i).  CMS also argues that Petitioner has not established good cause for admitting the OIG’s May 29, 2020 notice of exclusion, which Petitioner included with the supplemental request for hearing.  I note, however, that the OIG’s May 29, 2020 notice of exclusion was initially and timely submitted at the reconsideration level.  DAB E-File Dkt. C-21-347, Doc. 1(a) at 2.

On April 16, 2021, Petitioner filed Petitioner’s Response to CMS’s Objections to Exhibits (Resp. to Objs.).  Petitioner argues that the OIG’s May 29, 2020 notice of exclusion that was attached to Petitioner’s Supplemental Hearing Request is not new evidence.  Petitioner asserts that the notice of exclusion is not only evidence that was previously considered by CMS, but evidence relied upon for CMS’s reconsideration decision.  Petitioner also contends that during the administrative appeals process, he encouraged CMS to review the whole record from U.S. v. Harris and asserts that the plea agreements (P. Exs. 9, 10, and 11) were “now explicitly referenced which were before referenced but uncited.”  Resp. to Objs. at 2.  Petitioner argues that because CMS withdrew all its bases for exclusion other than the OIG decision, the merits of the OIG decision is the sole consideration remaining.  Petitioner argues that what he must prove to overturn the decision at hand has changed and this has necessitated additional exhibits “to exemplify the erroneousness [of] the original decision.”  Resp. to Objs. at 3.  Petitioner submits that by CMS continually changing its basis for revocation, this has necessitated a change of defense and that CMS’s change of rationale violated Petitioner’s due process rights and restarted the appeals process.  Resp. to Objs. at 3.  Petitioner argues that in the

Page 6

alternative, CMS’s change in rationale provides good cause to admit Petitioner’s Exhibits 9, 10, and 11.  Id.

On August 20, 2021, and in response to Petitioner’s multiple pleadings, CMS filed CMS’s Objections to Petitioner Filing Out-Of-Time Amended Supplemental Prehearing Briefs, Oppositions, and Responses to CMS’s Motion for Summary Judgment (CMS Obj. to Supp. Pleadings).  CMS argues that in response to the ALJ’s January 11, 2021 Order, Petitioner filed its initial Pre-Hearing Brief and Opposition to CMS’s Motion for Summary Judgment on March 22, 2021; the deadline set in the ALJ’s Order.  CMS argues that the arguments made in Petitioner’s subsequent pleadings should have been made in Petitioner’s initial filing on March 22, 2021.  CMS submits that “The ALJ’s Order does not give either party carte blanche to randomly file pleadings beyond the briefing deadline and without leave from the ALJ.”  CMS Obj. to Supp. Pleadings at 2.

Between June 2, 2021 and April 13, 2022, Petitioner filed Petitioner’s Supplemental Pre-Hearing Brief and Opposition to CMS’s Motion for Summary Judgment (Supp. Br.); Petitioner’s Second Supplemental Pre-Hearing Brief and Opposition to CMS’s Motion for Summary Judgment (Second Supp. Br.); Petitioner’s Amended Second Supplemental Pre-Hearing Brief and Opposition to CMS’s Motion for Summary Judgment (Amended Second Supp. Br.); Petitioner’s Third Supplemental Pre-Hearing Brief and Opposition to CMS’s Motion for Summary Judgment (Third Supp. Br.); and Petitioner’s Fourth Supplemental Pre-Hearing Brief and Opposition to CMS’s Motion for Summary Judgment (Fourth Supp. Br.).  Petitioner attaches various publications and documents relating to U.S. v. Harris to these repetitive pleadings.  While Petitioner submits that some of these documents were not in existence prior to May 2021, Petitioner argues that the attachments demonstrate that Petitioner’s inclusion in the underlying court case was erroneous.  Petitioner not only argues that the conviction was not related to his delivery of Medicare services, but he repeatedly argues that CMS’s revocation of billing privileges denied him his constitutional right to work for the better part of five years.

In an Order dated April 14, 2022, the ALJ noted all the parties’ pleadings since the original January 11, 2021 Order.  The ALJ further noted that in its August 20, 2021 Objections to Petitioner Filing Out-of-Time Amended and Supplemental Prehearing Briefs, Oppositions, and Responses to CMS’s Motion for Summary Judgment, CMS objected to each filing that Petitioner submitted following his March 22, 2021 Pre-Hearing Brief and Opposition to CMS’s Motion for Summary Judgment.  The ALJ confirmed that she considered CMS’s objection a standing one, which applies to Petitioner’s Third and Fourth Supplemental Pre-Hearing Brief and Opposition to CMS’s Motion for Summary Judgment.  The ALJ closed the record and stated that she would not consider any further submissions from either party in this case.  Order Closing Record at 2.

Page 7

The ALJ’s January 11, 2021 Order explained that an in-person hearing to cross-examine witnesses will be necessary only if a party files admissible written testimony, and the opposing party asks to cross-examine.  Order at 6, ¶ 10.  While Petitioner’s counsel included Petitioner’s three-page notarized affidavit with the 162 pages of the RFH, Petitioner submitted no other direct witness testimony that would comport with the ALJ’s January 11, 2021 Order.  Inasmuch as CMS submitted no direct witness testimony and no request to cross-examine as provided in the Order, an in-person hearing is not necessary.  Although CMS moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are met.

I have considered the entire record including both parties’ arguments and objections with respect to proffered exhibits and supplemental briefing.  I accept CMS Exhibits 1-12 and Petitioner’s Exhibits 1-8 and 12.  For reasons that I will discuss in my analysis of the merits of this case, I reject Petitioner’s Exhibits 9, 10, and 11.  Additionally, for reasons that will be discussed in Section IV of this decision, I also find that the additional briefs and pleadings filed by Petitioner on June 2, 2021, August 5, 2021, August 18, 2021, December 30, 2021, and April 13, 2022 were unresponsive to the ALJ’s January 11, 2021 Order and related to matters outside the scope of my jurisdiction.  Accordingly, I reject these documents for record consideration.

III.     Issues

1. Whether I may consider evidence pertaining to Petitioner’s inclusion in U.S. v. Harris or evidence relating to the disposition of that case for Petitioner or any other named defendant.
2. Whether I have jurisdiction to consider the merits of the OIG’s exclusion of Petitioner in the Medicare, Medicaid, and all Federal health care programs.
3. Whether CMS had a legitimate basis to revoke Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(2) and 424.535(a)(9).
4. Whether CMS had a legitimate basis to place Petitioner on the Preclusion List.

IV.     Findings of Fact, Conclusions of Law, and Analysis⁵

1. Evidence relating to the indictment or conviction of Petitioner and/or other named defendants in U.S. v. Harris is not relevant to whether CMS had a legitimate basis to revoke Petitioner’s Medicare billing privileges because of

Page 8

Petitioner’s exclusion to participate in the Medicare, Medicaid, and any other Federal health care program and because Petitioner failed to timely report the exclusion.

42 C.F.R. § 424.535(a) specifies the bases upon which CMS may lawfully revoke a supplier’s Medicare enrollment and billing privileges.  Despite appeals challenging CMS’s Medicare enrollment revocations, the Departmental Appeals Board (Board) has consistently held that both ALJs and the Board are authorized to review only whether CMS has established a legal basis for revocation under section 424.535(a).⁶

Citing an earlier decision in Cornelius M. Donohue, DPM, DAB No. 2888 at 4 (2018), the Board clarifies that in reviewing the revocation of a supplier’s Medicare billing privileges, ALJs and the Board decide only whether CMS has established a lawful basis for the revocation.  William Garner, M.D., DAB No. 3026 at 8 (2020).  Both within the ALJ’s established time frame for submitting evidence, as well as after the deadline for submitting evidence, Petitioner submitted multiple documents relating to the processing of U.S. v. Harris with respect to Petitioner and other named defendants.  Petitioner argues that other defendants engaged in egregious conduct and yet CMS “handed down similar punishments” to Petitioner and those defendants receiving more severe penalties.  Fourth Supp. Br. at 2.  Documents relating to the status of Petitioner as compared to other named defendants in U.S. v. Harris are irrelevant to CMS’s revocation of Petitioner’s Medicare billing privileges.  Petitioner does not deny that in May 2020, the OIG excluded Petitioner from participating in the Medicare, Medicaid, and all Federal health care programs.  Furthermore, Petitioner does not deny that he failed to timely report this exclusion to CMS.  He does not deny that CMS revoked his billing privileges because of the OIG’s exclusion and because he failed to notify CMS of this exclusion.  Accordingly, Petitioner’s extensive arguments and submitted documents concerning U.S. v. Harris are beyond the scope of the issues before me and are irrelevant.

Furthermore, 42 C.F.R. § 498.56(e)(1) provides that after a hearing is requested but before it is held, an ALJ examines 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)(ii) further provides that if the ALJ determines that there was not good cause for submitting the evidence for the first time at the ALJ level, the ALJ must exclude the evidence from the proceeding and may not consider it in reaching a decision.

As discussed above, Petitioner’s proposed Exhibits 9, 10, and 11 are the respective plea agreements of three other named defendants in U.S. v. Harris.  All of Petitioner’s

Page 9

arguments and proposed supporting documents concerning the processing and disposition of U.S. v. Harris are not relevant to this proceeding and have no bearing on whether CMS is authorized to revoke Petitioner’s billing privileges as set forth in CMS’s December 18, 2020 reconsideration decision.  As discussed above, I do not receive these proposed exhibits as record evidence.

2. I do not have jurisdiction to review the merits of the OIG’s exclusion of Petitioner from participating in the Medicare, Medicaid, and all Federal health care programs.

The OIG’s May 29, 2020 notice of exclusion contained an explanation of what Petitioner must do to appeal the decision.  Specifically, if Petitioner disagrees with the OIG’s decision, Petitioner has the right to request a hearing before an ALJ and the appeal would be limited to the issues of whether the OIG had a basis for the imposition of the sanction, and/or whether the length of exclusion is reasonable.  The request for a hearing before an ALJ in such an action must be made in writing within 60 days of receiving the OIG’s notice of exclusion.  Petitioner has submitted no evidence to show that he timely responded to or otherwise requested a hearing in accordance with the OIG’s May 29, 2020 notice of exclusion.  P. Ex. 4.

In Petitioner’s February 4, 2021 supplemental request for hearing, Petitioner acknowledges the OIG’s May 29, 2020 notice of exclusion, and asserts that Petitioner seeks to “supplement this hearing request to include review of the OIG’s erroneous decision on its own merits as well as its heavy foundation in CMS/Novitas Decision.”  Supp. RFH at 1.  Petitioner argues that the reconsideration of the CMS and OIG decisions should be combined for the promotion of judicial efficiency and to avoid the harassment and cost of multiple appeals of various rulings.⁷  Supp. RFH at 2.  Petitioner acknowledges that his request is untimely, however, Petitioner argues that the delay in bringing the appeal comes from problems related to the COVID pandemic and “the lack of a streamline and/or singularity of message in these exclusion situations.”  Id.

Petitioner’s request for an ALJ or the Board to revisit a determination that was finalized in a different forum has no merit.  In Douglas Bradley, M.D., DAB No. 2663 (2015), the

Page 10

Board dealt with a similar argument.  In Douglas Bradley, M.D., the petitioner argued that the ALJ or the Board should review the New York Office of the Medicaid Inspector General’s exclusion of the petitioner from the New York Medicaid program, asserting that the exclusion was substantively and procedurally flawed.  Id. at 15.  The Board agreed with the ALJ that the State’s exclusion regulations do not authorize the ALJ to review the merits or procedures involved in the exclusion decision.  Additionally, the Board agreed that if the petitioner wanted to challenge the exclusion, he should have followed the appeal regulations in the New York State’s regulations and, if necessary, sought judicial relief.  Id. at 15.  The OIG’s May 29, 2020 notice of exclusion clearly outlined what Petitioner must do to appeal the exclusion determination.  Petitioner’s efforts to relitigate the validity of his conviction and the OIG’s resulting exclusion are irrelevant to an ALJ’s determination as to whether CMS had a legal basis to revoke Petitioner from participating in the Medicare, Medicaid, and all Federal health care programs or to place Petitioner on its Preclusion List.

3. CMS had a legitimate basis under 42 C.F.R. § 424.535(a)(2) and (a)(9) to revoke Petitioner’s enrollment and billing privileges because the OIG excluded Petitioner from the Medicare, Medicaid, and any other health care program and Petitioner did not report that adverse legal action to CMS within 30 days.

Pursuant to 42 C.F.R. § 424.505, 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.  Further, under 42 C.F.R. § 424.535, the Secretary of Health and Human Services, as authorized under Section 1831 of the Act (42 U.S.C. § 1395j), has delegated to CMS the authority to revoke enrollment and billing privileges.

Under 42 C.F.R. § 424.535(a)(2), CMS may revoke a currently enrolled supplier’s Medicare enrollment and any corresponding supplier agreement if the supplier, or any owner, managing employee, authorized or delegated official, medical director, supervising physician, or other health care personnel of the provider or supplier is excluded from the Medicare, Medicaid, and any other Federal health care program.

CMS may also revoke a supplier’s Medicare participation and billing privileges for failing to comply with reporting requirements as stated in 42 C.F.R. § 424.516(d) and 42 C.F.R. § 424.535(a)(9).  The reporting requirements explicitly instruct a participating supplier to report any adverse legal action to a contractor or CMS within 30 days of its occurrence.  42 C.F.R. § 424.516(d)(1)(ii).  In its recent decision in Thomas Falls, M.D., DAB No. 3056 (2022), the Board noted that section 424.516(d)(1)(ii) requires physicians to report, within 30 days, “[a]ny adverse legal action.”  The Board went on to explain:  “According that word its plain meaning, section 424.516(d)(1)(ii) does not, by its terms, limit its reporting requirement to certain types of adverse legal actions; it states that ‘any’

Page 11

adverse legal actions must be reported.”  Id. at 9-10.  Clearly, the OIG’s exclusion of Petitioner from the Medicare, Medicaid, and all Federal health care programs for five years constitutes an adverse legal action.

Petitioner argues that in the initial notice of revocation, Novitas cited his failure to report his alleged felony conviction as the basis for revocation under 42 C.F.R. § 424.535(a)(9).  Petitioner contends that “[t]here was no mention of any reporting failure in regard to his ongoing matter with the OIG.”  P. Br. at 11.  Petitioner argues that Novitas “likely finding they were completely off-base with their felony allegations – pivoted to the previously unprovided, alleged OIG reporting failure.”  Id.  Petitioner submits that the revocation of Medicare privileges on a rationale for which he was provided no notice is a clear violation of due process.  Id. at 12.

CMS’s inclusion of Petitioner’s failure to report the OIG’s exclusion in violation of 42 C.F.R. § 424.535(a)(9) in its final decision does not violate Petitioner’s due process rights.  While Petitioner is correct that his failure to notify CMS of the OIG’s exclusion was not included in the initial notice of revocation, the OIG’s June 18, 2020 notice of exclusion was specifically cited and relied upon in revoking Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(2).  Contrary to Petitioner’s assertions, both Novitas in the initial notification and CMS in its final decision relied upon the OIG’s exclusion as a basis for revocation.  See CMS Exs. 7 at 1; 9 at 3-4, 7.  While CMS overturned the contractor’s revocation for Petitioner’s failure to report a misdemeanor conviction, CMS nevertheless sustained the revocation for the OIG’s exclusion from the Medicare, Medicaid, and all Federal health care programs.  Thus, whether Petitioner’s billing privileges were revoked in part based on Petitioner’s failure to report the OIG’s exclusion rather than the failure to report a felony conviction, the revocation was initially based in part on the June 18, 2020 OIG exclusion.  Even after an additional review by CMS, this basis for revocation has never changed and is sufficient alone for the revocation despite Petitioner’s failure to report an adverse action.  Specifically, I note that where CMS cites multiple grounds for revocation, the revocation “need only be upheld on one regulatory ground in order to be sustained.”  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 10 (2020); AR Testing Corp., DAB No. 2679 at 4 n.7 (2016).

Despite Petitioner’s arguments about alleged disparities in culpability and treatment of Petitioner versus other defendants in U.S. v. Harris and despite Petitioner’s attempt to argue the merits of the OIG’s decision, there is no dispute that on June 18, 2020, the OIG excluded Petitioner from the Medicare, Medicaid, and any other Federal health care program.  Furthermore, there is no dispute that Petitioner did not report the OIG’s decision to the Medicare contractor within the requisite 30 days.  Accordingly, CMS was authorized to revoke Petitioner’s billing privileges.

Page 12

4. I do not have jurisdiction to review the duration of the re-enrollment bar.

After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is generally barred from re-enrolling in the Medicare program for a period of one to ten years.  42 C.F.R. § 424.535(c)(1).  In the July 14, 2020 initial revocation letter, Novitas informed Petitioner of the re-enrollment bar and its duration until October 22, 2029.  CMS Ex. 7 at 3.  In the December 18, 2020 decision, the CMS hearing officer revised the re-enrollment bar to end on June 19, 2025.  CMS Ex. 9 at 8.  Petitioner acknowledges that the bar was revised, however, Petitioner asserts that the five-year enrollment bar is arbitrary, capricious, and an abuse of discretion.  Petitioner contends that the severity of his conduct “falls far short of a five-year reenrollment ban.”  RFH at 8.  Although Petitioner argues that he understood that he need not report a misdemeanor conviction, Petitioner does not deny that he failed to report his five-year OIG exclusion.

Despite Petitioner’s arguments, however, the duration of the re-enrollment bar is not subject to ALJ review because it is not an initial determination described in 42 C.F.R. § 498.3(b).  Vijendra Dave, M.D., DAB No. 2672 at 9-10 (2016).  The Board has repeatedly held that the duration of a re-enrollment bar is not an initial determination subject to review by the ALJ or the Board.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 15-16 (2020); Mohammad Nawaz, M.D. & Mohammad Zaim, M.D., PA, DAB No. 2687, at 15 (2016), aff’d, Mohammad Nawaz, M.D. & Mohammad Zaim, M.D., P.A. v. Price, No. 4:16cv386, 2017 WL 2798230 (E.D. Tex. June 28, 2017), aff’d sub nom Shah v. Azar, 920 F.3d 987 (5th Cir. 2019)(“Although the re-enrollment bar is a direct and legally mandated consequence of an appealable revocation determination, nothing in Part 498 authorizes the Board to review the length of the bar despite that relationship between a revocation and a reenrollment bar.”).  Therefore, I have no authority to review the length of Petitioner’s re-enrollment bar.

5. CMS had a legitimate basis to place Petitioner on the Preclusion List.

Effective June 15, 2018, CMS was required to establish a preclusion list as defined by 42 C.F.R. §§ 422.2 and 423.100.⁸  As Petitioner acknowledges,⁹ the CMS Preclusion List is reserved for individuals and entities that: 

1. Are currently revoked from Medicare for a reason other than that stated in 42 C.F.R. § 424.535(a)(3);¹⁰

Page 13

2. Are currently under a re-enrollment bar under 42 C.F.R. § 424.535(c); and
3. CMS determines that the underlying conduct which led to the revocation is detrimental to the best interests of the Medicare program.

When considering whether the conduct is detrimental to the best interests of the Medicare program, CMS considers:

1. The seriousness of the conduct underlying the individual’s revocation;
2. The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program; and
3. Any other evidence that CMS deems relevant to its determination.

42 C.F.R. §§ 422.2, 423.100.

Petitioner challenges his inclusion on the Preclusion List, asserting that (1) the enrollment should not have been revoked; (2) the enrollment bar was wrongly implemented; and (3) his conduct was not detrimental to the best interests of the Medicare program.  P. Br. at 9.  While Petitioner contends in his pre-hearing brief that his “alleged” failure to report does not rise to the level of seriousness justifying his placement on the Preclusion List, there is no dispute that Petitioner did not report his exclusion by the OIG to participate in the Medicare, Medicaid, and all Federal health care programs for a minimum statutory period of five years.  P. Ex. 4 at 1.

As the CMS hearing officer noted in the December 18, 2020 decision, Petitioner’s Medicare enrollment was revoked pursuant to 42 C.F.R. §§ 424.535(a)(2) and (a)(9) with a revised enrollment bar ending on June 19, 2025.  Thus, the first two prongs of the Preclusion List were met.  CMS Ex. 9 at 7.  In considering whether Petitioner’s conduct which led to the revocation is detrimental to the best interests of the Medicare program, the hearing officer noted that a supplier is ultimately responsible for furnishing complete and accurate information to CMS.  Inaccurate or outdated information puts the Medicare Trust Funds at risk.  CMS explained that the failure to report information relevant to the supplier’s enrollment eligibility represents a significant program integrity risk.  CMS Ex. 9 at 7.  Although the revocation was based on Petitioner’s failure to report his OIG exclusion, the hearing officer also referred to Petitioner’s underlying conduct that resulted in his U.S. v. Harris plea agreement.  Specifically, CMS noted that Petitioner’s

Page 14

conduct indicates his inability or unwillingness to exercise good judgment regarding adhering to the Medicare program’s government rules regulations.  Id.  CMS argues that in U.S. v Harris, “Petitioner pled guilty to a Violation of Terms signifying his inability or unwillingness to use good judgment when it comes to complying with Medicare’s rules and regulations.”  CMS Br. at 9.

The regulations do not require CMS to explain the factors upon which it relies in finding that an offense is detrimental to Medicare or to otherwise explain that finding.  See, e.g., Brian K. Ellefsen, DO, DAB No. 2626 at 9 (2015).  Nevertheless, it is apparent that CMS considered the seriousness of Petitioner’s conduct and the extent to which his conduct could impact the integrity of the Medicare program.  42 C.F.R. §§ 422.2, 423.100.  The Board has noted that where the regulations grant CMS discretion to determine that a provider or supplier’s underlying conduct is detrimental to Medicare, an ALJ may not substitute his or her determination for that of CMS.  See Pa. Physicians, P.C., DAB No. 2980 at 13 (2019).

Furthermore, I may presume that CMS properly discharged its duty under the regulations “in the absence of clear evidence to the contrary.”  United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Douglas Bradley, M.D., DAB No. 2663 at 14 (2015).  Therefore, I uphold CMS’s decision to include Petitioner on CMS’s Preclusion List effective December 18, 2020.

6. I have no authority to consider Petitioner’s abuse of discretion, constitutional, and equitable claims.

Throughout Petitioner’s supplemental pleadings, he argues that he has been refused his Constitutional right to work.  He also asserts that because of his “erroneous” involvement in U.S. v. Harris and the closing of his clinic because of the OIG decision, he lost 49 to 54 thousand dollars monthly.  Amended Second Supp. Br. at 3.  Further, he contends that he “has been wrongly deprived of his right to work and earn approximately $1,514,000 from his targeting by CMS and OIG.”  Id. at 4.  See also Fourth Supp. Br. at 3-4.

Petitioner also argues that his “revocation determined by the OIG is an arbitrary and capricious determination in violation of his substantive due process rights.”  P. Br. at 7.  As discussed above, I do not have jurisdiction to review the merits of the OIG’s exclusion, nor do I have jurisdiction to evaluate the fairness or impartiality of the OIG’s determination in excluding Petitioner.  Furthermore, I have no authority to reverse or modify the revocation of Petitioner’s billing privileges on constitutional due process grounds.  The Board has repeatedly held that ALJs and the Board are bound by the Medicare enrollment regulations and lack the authority to consider constitutional grounds as a basis to overturn a revocation that was imposed in accordance with the applicable law and regulations.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 19 (2020); Cornelius M. Donohue, DPM, DAB No. 2888 at 8-9 (2018).

Page 15

Petitioner presents numerous arguments throughout his pleadings alleging CMS’s abuse of discretion and resulting financial losses.  See RFH at 12.  Overall, I accept these arguments in support of Petitioner’s appeal for equitable relief.  However, the Board has long held that neither the Board nor ALJs have the authority to review CMS’s exercise of discretion for revocation if the regulatory elements necessary for CMS to exercise its renovation authority are satisfied.  Horace Bledsoe, M.D. and Bledsoe Family Medicine, DAB No. 2753 at 10-11 (2016); Stanley Beekman, D.P.M., DAB No. 2650 at 10 (2015).  I do not have the authority to set aside the lawful exercise of discretion by CMS or its contractor to provide equitable relief to Petitioner.  As the Board has pointed out, “Although CMS ‘may have discretion to consider unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,’ Care Pro Home Health Inc., DAB No. 2723 at 9 n.8 (2016), ALJs and the Board may not ‘substitute [their] discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.’”  Lilia Gorovits at 10; see also Donna Maneice, M.D., DAB No. 2826 at 7 (2017); Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016).  Accordingly, I do not have authority to grant Petitioner equitable relief in this matter.

V.     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)(2) and (9).  Further, I affirm Petitioner’s inclusion on the Preclusion List and Petitioner’s re-enrollment bar until June 19, 2025.

---

Endnotes

¹  Other than the health insurance program relating to government employees under Chapter 89 of Title 5, United States Code.

²  18 U.S.C. § 1347 provides:

(a) Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—

(1) to defraud any health care benefit program; or

(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both.  If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

(b) With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.

³  Petitioner stipulated that while working at Novus, he permitted a rubber stamp depicting a reproduction of his signature to be used by members of the clinic staff to affix a reproduction of his signature to orders that were verbally approved at interdisciplinary team meetings conducted at Novus, or verbal orders given to nurses while on call, but needed his signature.  Petitioner acknowledged that in 2013, CMS enacted a new rule precluding the use of stamped signatures, effective June 18, 2013.  Petitioner asserted that he did not know at the time that he permitted his signature stamp to be used that the rule had changed.  RFH at 45-46.

⁴  The case was initially assigned to a different ALJ and then transferred to the undersigned.

⁵  My findings of fact and conclusions of law are set forth in italics and bold font.

⁶  Letantia Bussell, M.D., DAB No. 2196 at 12-13 (2008); Lorrie Laurel, PT, DAB No. 2524 at 7-8 (2013).

⁷  In support of Petitioner’s argument, Petitioner cites a decision of the Ninth Circuit Court of Appeals and two United States Supreme Court decisions; none of which dealt with an ALJ assuming jurisdiction over a matter brought before another judicial body.  In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), a case cited by Petitioner, the Court dealt with whether the Appeals Court had erred in reaching the merits of a District Court order.  Interestingly, in its decision the Court noted that “a court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .”  449 U.S. 379-380.

⁸  83 Fed. Reg. 16,440, 16,641-67 (Apr. 16, 2018).

⁹  P. Br. at 9.

¹⁰  42 C.F.R. § 424.535(a)(3) authorizes CMS to revoke a currently enrolled provider or supplier’s Medicare enrollment for a felony conviction of the provider, supplier, or any owner or managing employee of the provider or supplier of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries within the preceding 10 years.