Thomas Falls, M.D., DAB No. 3056 (2022)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Thomas Falls, M.D. (Petitioner) appeals a March 23, 2020 decision by an administrative law judge (ALJ), Thomas Falls, M.D.,DAB CR5562 (2020) (ALJ Decision).  The ALJ affirmed the decision of the Centers for Medicare & Medicaid Services (CMS) to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) for failure to report the suspension of his Kentucky medical license, and pursuant to 42 C.F.R. § 424.535(a)(12) based on the termination of his participation in the Kentucky Medicaid program.

We affirm the ALJ’s decision to uphold the revocation of Petitioner’s enrollment and billing privileges on both grounds because it is supported by substantial evidence and free of legal error.  The effective date of revocation is June 27, 2019.

Legal Background

CMS administers the Medicare program, in part through contracts with private contractors – here, Celerian Group Company (CGS) – who perform certain program functions, including the enrollment of providers and suppliers in the Medicare program on CMS’s behalf.  Social Security Act (Act) §§ 1816, 1842, 1874A; 42 C.F.R. §§ 421.5(b), 421.404(c).  A “supplier” of Medicare services – a term that includes a physician – must be enrolled and maintain enrollment in the Medicare program to receive payment for items and services covered by Medicare.  42 C.F.R. §§ 400.202 (defining “Supplier”), 424.505.1   “Enrollment” is the process that CMS uses to:  (1) identify a prospective supplier; (2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; (3) identify and confirm a supplier’s owner(s) and practice

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location(s); and (4) grant the supplier Medicare billing privileges.  Id. § 424.502 (defining “Enroll/Enrollment”); see id. §§ 424.505, 424.510. 

CMS may revoke a supplier’s Medicare enrollment for any of the reasons enumerated in 42 C.F.R. § 424.535(a).Section 424.535(a)(9) authorizes CMS or its contractor to revoke a supplier’s billing privileges if the supplier “did not comply with the reporting requirements specified in [sections] 424.516(d)(1)(ii) and (iii) of this subpart.”  As relevant here, section 424.516(d)(1)(ii) requires that a physician report “[a]ny adverse legal action” to a CMS contractor within 30 days.  Section 424.535(a)(12) provides that CMS may revoke a supplier’s Medicare enrollment if “Medicaid billing privileges are terminated or revoked by a State Medicaid Agency.”  42 C.F.R. § 424.535(a)(12)(i).  However, CMS may not revoke billing privileges under section 424.535(a)(12) “unless and until a . . . supplier has exhausted all applicable appeal rights.”  Id.
§ 424.535(a)(12)(ii).

Revocation effectively terminates any provider agreement and bars the supplier from participating in Medicare from the effective date of the revocation until the end of the re-enrollment bar.  42 C.F.R.§ 424.535(b), (c).  The effective date of a revocation based on section 424.535(a)(9) or section 424.535(a)(12) is 30 days after CMS or its contractor mails the notice of revocation.  Id.§ 424.535(g).  CMS sets the re-enrollment bar for a period between one year and three years, depending on the severity of the basis for revocation.  Id. § 424.535(c). 

A supplier whose Medicare enrollment has been revoked may request reconsideration by CMS or its contractor and may appeal a reconsidered determination with which it disagrees to an ALJ in accordance with 42 C.F.R. Part 498.  See 42 C.F.R. §§ 424.545(a), 498.3(b)(17), 498.5(l)(1)-(3), 498.22(a).  A party dissatisfied with an ALJ’s decision may then seek Departmental Appeals Board (Board) review.  Id. § 498.80.

Case Background2

Petitioner is an orthopedic surgeon licensed to practice in the Commonwealth of Kentucky.  CMS Ex. 3 ¶¶ 1, 2; P. Ex. 6 ¶¶ 1, 2; P. Ex. 33 ¶ 1.3   He was enrolled in Medicare and Kentucky Medicaid.  CMS Exs. 4, 10.  Local police in Kentucky arrested Petitioner on May 5, 2018, and charged him with unlawful use of electronic means to engage a minor in sexual or other prohibited activities and promoting human trafficking.  See CMS Ex. 1; CMS Ex. 3 ¶¶ 3, 4; P. Ex. 6 ¶¶ 3-5.

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On May 9, 2018, based on Petitioner’s arrest, the Commonwealth of Kentucky Board of Medical Licensure (Kentucky Board) determined there was probable cause that Petitioner’s practice “constitutes a danger to the health, welfare and safety of his patients or the general public,” and suspended Petitioner’s medical license on an emergency basis, pending further proceedings.  CMS Ex. 3 (Emergency Order of Suspension), at 2, 4.  

On May 14, 2018, Kentucky’s Cabinet for Health and Family Services, Department for Medicaid Services (Kentucky Medicaid) sent Petitioner a letter via certified mail, requesting a return receipt.  CMS Ex. 4.  In that letter, Kentucky Medicaid informed Petitioner that it was terminating his Kentucky Medicaid Provider Agreement, effective May 11, 2018, based on the suspension of his medical license.  Id. at 1.  The letter explained that Petitioner could ask for a Dispute Resolution Meeting in accordance with the Kentucky Administrative Regulations (KAR), to challenge the termination within 30 days from receipt of the termination notice.  Id. at 2 (citing 907 KAR 1:671, Section 8).

On May 17, 2018, an inquiry panel for the Kentucky Board issued a complaint against Petitioner, seeking to take disciplinary action against his medical license based on the pending criminal charges.  P. Ex. 4. 

On September 13, 2018, Petitioner pleaded guilty to a misdemeanor charge of soliciting a prostitute, as amended downward from promoting human trafficking.  See CMS Ex. 2; P. Ex. 6 ¶ 9; P. Ex. 33 ¶ 6.  Petitioner was sentenced to a 90-day suspended jail sentence and a one-year conditional discharge.  P. Ex. 6 ¶ 9. 

Petitioner underwent an evaluation to determine his fitness to practice medicine.  He was determined to be fit to practice medicine.  P. Ex. 7, at 27.  Pursuant to an agreed order issued October 18, 2018, the Kentucky Board reinstated Petitioner’s medical license and placed Petitioner on five years of probation.  P. Ex. 6, at 3-4; P. Ex. 33 ¶ 7.

By letter dated May 28, 2019, CGS notified Petitioner that his Medicare billing privileges would be revoked effective June 23, 2019, pursuant to section 424.535(a)(9), for failure to timely report the May 9, 2018 suspension of his Kentucky medical license, and pursuant to section 424.535(a)(12), based on the termination of his participation in Kentucky Medicaid.  CMS Ex. 5, at 1.  CGS further informed Petitioner that he would be barred from re-enrolling in the Medicare program for two years.  Id. at 2.  CGS mailed its notice to the same address to which Kentucky Medicaid had sent its notice of termination.  Compare id. at 1 and CMS Ex. 4, at 1. 

By letter dated June 27, 2019, Petitioner asked Kentucky Medicaid to “set aside” its May 14, 2018 determination to terminate his participation in Kentucky Medicaid, and to schedule a dispute resolution meeting.  P. Ex. 12, at 1.  In that letter, Petitioner stated that he did not receive Kentucky Medicaid’s May 14, 2018 termination notice until June 21,

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2019.  Id.4   He stated that he did not receive Kentucky Medicaid’s termination notice “because it was not sent to [his] home or office location,” and that he did not sign the certified mail receipt and did not know who signed it.  Id.5

By reconsidered determination dated September 25, 2019, CMS affirmed the revocation on the two bases cited in the initial determination.  CMS Ex. 6, at 6.  On revocation under section 424.535(a)(12), CMS noted that Petitioner did not submit any evidence supporting his assertion that he had not exhausted all applicable appeal rights on the termination from participation in Kentucky Medicaid, or that Kentucky Medicaid had “accepted” his June 27, 2019 letter and that an appeal of the termination was pending.  Id.  CMS also added, “[T]he Kentucky State Medicaid has reported to CMS that [Petitioner] has exhausted all his appeal rights in regards to his termination.”  Id.  

By follow-up letter dated January 9, 2020, Petitioner asked Kentucky Medicaid to schedule a dispute resolution meeting, or set aside the termination and “declare[ ]” it “void ab initio.”  P. Ex. 31, at 1-2.  In that letter, Petitioner asserted that his attorney had communicated with a Kentucky Medicaid “staffer,” who told his attorney that the request for a dispute resolution meeting required review by a “higher level of departmental authority.”  Id. at 1.  Petitioner asked for a “prompt response from the appropriate department personnel who can grant [his] request for administrative appeal.”  Id.

The ALJ Proceedings and Decision

Petitioner timely requested an ALJ hearing.  ALJ Decision at 2.  CMS submitted a prehearing brief, moved for summary judgment, and filed 11 exhibits; Petitioner filed a prehearing brief and a cross-motion for summary judgment with 33 exhibits.  Id.  The ALJ admitted all of the parties’ exhibits.  Id.

CMS objected to Petitioner’s exhibits 31 (Jan. 9, 2020 letter to Kentucky Medicaid) and 32 (printout of the U.S. Postal Service mail tracking information from USPS.com, which indicates that the Jan. 9, 2020 letter was delivered to Kentucky Medicaid on Jan. 17, 2020) as irrelevant, and filed late and without good cause.  ALJ Decision at 2.  Overruling the objection, the ALJ admitted both exhibits, which Petitioner stated he could not submit earlier since the two documents did not exist when the review of his reconsideration request was pending.  Id.  The ALJ determined that those exhibits were

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relevant to the “central issue” of Petitioner’s challenge of the legality of revocation under section 424.535(a)(12) since they concerned his effort to appeal the termination of his Kentucky Medicaid provider agreement and demonstrated that Petitioner tried to ascertain the status of his attempt to appeal the termination.  Id. (citing 42 C.F.R. § 498.56(e) (ALJ examines any new documentary evidence submitted in an enrollment appeal by a supplier to determine whether good cause exists to submit it)); see also 42 C.F.R. § 498.61 (“The ALJ rules on the admissibility of evidence.”). 

The ALJ did not rule on CMS’s motion for summary judgment.  The ALJ instead decided the appeal based on the written record, without holding an in-person hearing.  ALJ Decision at 3.  The ALJ determined that an in-person hearing was not necessary because, first, CMS did not seek to cross-examine Petitioner, who had submitted his written direct testimony (P. Ex. 33).  Id. at 2; see also ALJ’s Standing Prehearing Order ¶¶ 11-13 (instructing the parties to submit direct testimony in writing and as a proposed exhibit and notifying them that a hearing would be held only to permit a party to cross-examine the opposing party’s witness whose admissible written direct testimony had been submitted).  Second, Petitioner identified as a witness and sought to “cross-examine” S.S., a CGS employee, “or a CMS designee” (see Petitioner’s Proposed Witness List and Request to Cross-Examine Witnesses at 1-2), but CMS did not identify any CGS employee as a witness, let alone submit the written direct testimony of any CGS employee.  ALJ Decision at 3.  The ALJ determined that, under these circumstances, the only means by which Petitioner could question a CGS employee would be through the issuance of a subpoena compelling S.S. (or another named CGS employee) to testify.  Id. (citing 42 C.F.R. § 498.58, which states, in part, that an ALJ may issue a subpoena at a party’s request if reasonably necessary for the full presentation of a case).  The ALJ, however, noted that Petitioner did not ask the ALJ to issue a subpoena to order S.S. to make herself available to testify.  Id.  The ALJ stated that, even had Petitioner asked him to issue a subpoena, he would not have issued one because S.S.’s testimony was “unnecessary and inappropriate.”  Id.  S.S., the ALJ noted, was not a fact witness.  S.S., the ALJ stated, signed the initial determination to revoke and, in doing so, she acted in an adjudicatory capacity or, at the very least, in the capacity of a charging official.  Id.  Moreover, the ALJ observed, the relevance of S.S.’s testimony was “even more attenuated” since Petitioner’s appeal was from the reconsidered determination, not the initial determination.  Id.  Accordingly, the ALJ sustained CMS’s objection to Petitioner’s request to “cross-examine” S.S.  Id.

Turning to the two bases for revocation, the ALJ concluded that CMS lawfully revoked Petitioner’s Medicare enrollment and billing privileges under both sections 424.535(a)(9) and 424.535(a)(12).  ALJ Decision at 6-11. 

With respect to revocation under section 424.535(a)(9), Petitioner argued that the phrase “[a]ny adverse legal action” in section 424.516(d)(1)(ii) means a “final adverse action” as that term is defined in 42 C.F.R. § 424.502.  See ALJ Decision at 6.  According to

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Petitioner, the Kentucky Board’s suspension order was a temporary event pending the outcome of further proceedings on the disciplinary charges against him, not a final adverse action subject to the reporting requirement in section 424.516(d)(1)(ii).  Id.  As support for his position, Petitioner pointed to the Medicare enrollment application form, Form CMS-855I (P. Ex. 25), in which CMS purportedly indicated that all applicable final adverse legal actions must be reported, as well as the preamble to the final rule promulgating section 424.516 (73 Fed. Reg. 69,725, 69,777 (Nov. 19, 2008)), which discussed the requirement to report final adverse actions.  ALJ Decision at 6.

Relying on the rationale in Akram A. Ismail, M.D., DAB No. 2429 (2011), the ALJ rejected the argument that the phrase “[a]ny adverse legal action” in section 424.516(d)(1)(ii) is equivalent to the term “final adverse action” as defined in section 424.502.  ALJ Decision at 7-8 (quoting language from Ismail at 10-11).  The ALJ stated that interpreting “any adverse legal action” to include suspensions like that imposed on Petitioner – which prohibited Petitioner from practicing medicine in Kentucky until the resolution of the complaint charges or until such further order of the Kentucky Board – is consistent with the statutory requirements to be enrolled in Medicare as a “physician,” who, for Medicare program purposes, is “a doctor of medicine . . . legally authorized to practice medicine and surgery by the State in which he performs such a function or action . . . .”  Id. at 8 (quoting 42 U.S.C. § 1395x(r)(1) (Act § 1861(r)(1)) (internal quotation marks omitted) and citing 42 C.F.R. § 410.20(b) (identifying the types of professionals whose “physicians’ services” qualify as Medicare Part B services)); see id. at 4 (finding of fact 7).  Therefore, the ALJ reasoned, a physician’s enrollment may be revoked whenever the physician is not compliant with any enrollment requirement and “it is proper to look at the immediate effect of a suspension rather than at the possibility that the suspension will be lifted in the future.”  Id. at 8 (citing Ismail at 8).  The ALJ went on to state that a physician who is no longer licensed to practice medicine in the state where he or she practices cannot provide services to Medicare beneficiaries; however, permitting such a physician to remain enrolled would put the Medicare program at risk for false claims.  Id.  Therefore, the ALJ reasoned, the purpose of section 424.516(d) could not be achieved if the phrase “any adverse legal action” did not include all license suspensions.  Id.

The ALJ also stated that, even assuming that only “final” adverse actions must be reported, the Board, examining the preamble in 73 Fed. Reg. at 69,726, 69,777 (Nov. 19, 2008), noted that the Secretary of Health and Human Services expressly stated that license suspensions are “final” for purposes of Medicare enrollment regulations, irrespective of any ongoing appeal rights.  ALJ Decision at 8-9 (quoting language from Ismail at 11); see also ALJ Decision at 8 (quoting Ismail at 11)(in which the Board discussed the preamble and noted that section 424.502 expressly states that the “[s]uspension or revocation of a license to provide health care by any state license authority” is a “final adverse action”).  Rejecting Petitioner’s argument in reliance on the instructions in Form CMS 855-I, the ALJ noted that the rationale in Ismail is consistent

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with CMS 855-I language, which, in pertinent part, provides that a final adverse action includes “Any current or past . . . suspension or voluntary surrender of a medical license in lieu of further disciplinary action.”  ALJ Decision at 9 (quoting P. Ex. 25 (Form CMS 855-I), at 12) (ALJ’s emphasis). 

The ALJ therefore concluded that the Kentucky Board’s suspension of Petitioner’s medical license “for more than five months” (May 9-October 18, 2018) was a reportable adverse action under section 424.516(d).  ALJ Decision at 9.  Since it is undisputed that Petitioner did not report the suspension within 30 days, CMS had a legitimate basis to revoke his Medicare enrollment and billing privileges under section 424.535(a)(9).  Id. at 6, 9.   

On revocation under section 424.535(a)(12), the ALJ noted that, in the absence of any  dispute that Kentucky Medicaid, a state Medicaid agency, had terminated Petitioner’s Medicaid billing privileges (CMS Ex. 4), the remaining question was whether Petitioner had exhausted all appeal rights to challenge the termination.  ALJ Decision at 9.  On that question, Petitioner argued that CMS had no basis to revoke under section 424.535(a)(12) because he had not exhausted all applicable appeal rights to challenge the termination of his Medicaid billing privileges.  Id.  According to Petitioner, he did not receive Kentucky Medicaid’s termination notice and learned about the termination much later when CGS referred to the termination in its initial determination.  Petitioner asserted that, because he filed an appeal of the termination without delay after he learned about the termination and Kentucky Medicaid had not yet completed the appeal, CMS could not lawfully revoke under section 424.535(a)(12).  See id. (citing Petitioner’s Prehearing Brief at 7-9). 

As the ALJ noted, 907 KAR 1:671, Section 8(7) (P. Ex. 15, at 12) requires Kentucky Medicaid to notify the individual requesting a dispute resolution meeting of the date of the meeting, which is to be held within 30 days of receipt of the request, and to hold such a meeting within 40 days of the receipt of the request unless the meeting is postponed, which may be for no more than 60 days.  ALJ Decision at 10.  The ALJ reasoned that, had Kentucky Medicaid accepted Petitioner’s late appeal, it would have immediately scheduled a meeting consistent with the regulation.  Id.  However, the ALJ noted, Petitioner admitted that his June 27, 2019 and January 9, 2020 letters to Kentucky Medicaid had not resulted in a dispute resolution meeting (P. Ex. 33 ¶ 13), and Petitioner offered no proof of a pending appeal, such as “a letter or other written confirmation that [Kentucky Medicaid] is entertaining Petitioner’s appeal.”  ALJ Decision at 10.  Accordingly, the ALJ determined “there is insufficient evidence to conclude Petitioner’s termination is presently under appeal” and affirmed the revocation under section 424.535(a)(12).  Id.; see id. at 9 (“Petitioner has no appeal of the termination pending”) (ALJ’s emphasis removed).

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Standard of Review

The standard of review on a disputed factual issue is whether the ALJ’s decision is supported by substantial evidence in the record as a whole.  The standard of review on a disputed issue of law is whether the ALJ’s decision is erroneous.  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program, at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html.

Analysis

The central question in an appeal of a revocation of Medicare enrollment and billing privileges is whether CMS had a legal basis for revocation.  If CMS has established a lawful basis for revocation, the ALJ must uphold the revocation.  Letantia Bussell, M.D., DAB No. 2196, at 13 (2008) (holding that ALJ’s review of CMS’s revocation determination is limited to whether CMS has “established a legal basis for its actions”); accord Stanley Beekman, D.P.M., DAB No. 2650, at 10 (2015) (The ALJ and the Board must uphold a revocation “[i]f the record establishes that the regulatory elements” are met.); Abdul Razzaque Ahmed, DAB No. 2261, at 19 (2009) (CMS is “legally entitled to revoke” if the regulatory elements are met), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).

In his brief in support of his timely appeal (P. Br.) and in his reply brief (P. Reply Br.), Petitioner asserts that the ALJ erred in upholding the revocation under sections 424.535(a)(9) and 424.535(a)(12).  Petitioner also asserts the ALJ erred in not permitting him to question S.S.  Both parties raise arguments about Petitioner’s submission of duplicate copies of his exhibits 1-32 (all of which the ALJ admitted) to the Board.6   We address the arguments in detail below and explain why we affirm the ALJ’s decision.  Lastly, we correct the effective date of revocation, which is June 27, 2019, and clarify an apparent misunderstanding about when the two-year re-enrollment bar begins.

A.     The ALJ correctly concluded that CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9).

CMS or its contractor may revoke a physician’s enrollment if the physician does not comply with the reporting requirements in 42 C.F.R. § 424.516(d)(1)(ii).  42 C.F.R. § 424.535(a)(9).  Section 424.516(d)(1)(ii) requires a physician to report “[a]ny adverse legal action” to the physician’s Medicare contractor within 30 days.  Petitioner does not

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dispute that he did not report the Kentucky Board’s May 9, 2018 suspension of his license to the CMS contractor.  The question, then, is whether that suspension was an “adverse legal action” Petitioner was required to report under section 424.516(d)(1)(ii).

In essence, Petitioner asserts the ALJ erred in upholding the revocation under section 424.535(a)(9) for failure to report the suspension because the suspension order was not subject to the section 424.516(d)(1)(ii) reporting requirement.  P. Br. at 1, 2, 9-16.  In so asserting, Petitioner maintains that we must look to section 424.502, which includes a definition of “final adverse action,” since section 424.516, the reporting regulation, does not define or specify what must be reported.  See id. at 11-12.  In this vein, Petitioner also points to CMS’s instructions in Form CMS-855I, which he says requires the reporting of “[a]ll applicable final legal actions” and a history of final legal actions, as being consistent with his position that “only the defined” “final” adverse actions need be reported.  Id. at 12-13 (citing P. Ex. 25).  According to Petitioner, the Kentucky Board’s May 9, 2018 order was merely a temporary, “interlocutory” action that “imposed no suspension” and culminated in a “final” determination to reinstate his license and impose a five-year probation.  Id. at 13-14, 16.  Since there was “no final decision that suspended [his] medical license,” Petitioner says, there was no “final adverse action” to report.  Id. at 14.  Petitioner also maintains that Federal Register preamble language and case law7 support his reasonable understanding that an order such as the one that the Kentucky Board issued on May 9, 2018 is not a “final” one he was required to report.  Id. at 14-16. 

The applicable regulations, preamble language, Board decisions, and CMS’s instructions in the 855-I form all support the conclusion that the suspension of Petitioner’s Kentucky medical license is subject to the section 424.516(d)(1)(ii) reporting requirement.  Moreover, it is undisputed that Petitioner did not report his suspension.  Thus, as explained below, we conclude that the ALJ did not err in upholding the revocation under section 424.535(a)(9).

We first look to the plain language of the regulations in effect at the time of revocation.  Section 424.516(d)(1)(ii) states that physicians must report, within 30 days, “[a]ny adverse legal action.”  Petitioner offers no reason why we should not accord the word “any” as used in section 424.516(d)(1)(ii) its plain meaning.  According that word its

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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” adverse legal actions must be reported.  The word “any” in the phrase “any adverse legal action” in section 424.516(d)(1)(ii) is not reasonably read to contemplate that only adverse actions that have concluded and thus are, for instance, administratively final, need be reported.  Furthermore, section 424.502, on which Petitioner seeks to rely in service of his argument that only “final” determinations need be reported (P. Br. at 11-12), defines “final adverse action” to expressly include the “[s]uspension . . . of a license to provide health care by any state license authority.”  (Emphasis added.)  Thus, “final adverse action” is not defined as limited to those adverse actions that are “final” in the way Petitioner asserts; the term is expressly defined to include license suspensions.  To accept Petitioner’s proposed reading of sections 424.516(d)(1)(ii) and 424.502, we would have to say that the words themselves (“any” in section 424.516(d)(1)(ii) and “final” in section 424.502 that defines “final adverse action”) are synonymous and equivalent in meaning.  But they are different words with different meanings.

In Ismail,DAB No. 2429 (affirming the ALJ’s decision, DAB CR2387 (2011)), the Board considered and rejected the argument that the suspension of a medical license is not an “adverse legal action” subject to reporting because it is not final, and determined that “any adverse legal action” is not limited to final adverse actions.  See Ismail at 8 (stating that a license suspension is inherently a temporary event), 10-11.  Agreeing with the reasoning of the ALJ, who examined the ordinary or usual meaning of the words in the phrase “any adverse legal action,” the Board noted that the phrase refers to a legal action that is contrary to the interest of the person, not merely a legal action that is final.  See id. at 10 (citing ALJ Decision at 7, 9) (citation omitted).  In so doing, the Board also noted that the phrase “any adverse legal action” is “on its face broader than ‘final adverse action,’ and includes, but is not limited to, a final adverse action.”  Id. at 11.  The Board went on to examine the regulatory history of section 424.516, noting that, had the Secretary intended the definition of “final adverse action” in section 424.502 to limit the scope of section 424.516(d)(1)(ii), the Secretary would not have used different language.  Id. at 10-11 (discussing the preamble in 73 Fed. Reg. at 69,777).  The Board also noted (as the ALJ who decided Petitioner’s case did) that this interpretation was also “appropriate” in view of the goal of the reporting requirement, that is, to “reduc[e] improper payments to unqualified practitioners.”  Id. at 11 (citing 71 Fed. Reg. 20,754, 20,754 (Apr. 21, 2006)).  Thus, the Board stated, section 424.516(d)(1)(ii) requires “the reporting of a license suspension even if an appeal of the suspension is pending.”  Id. at 10.8

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We observe, moreover, that contrary to Petitioner’s argument (see P. Br. at 13), the Kentucky Board imposed a suspension.  The Kentucky Board’s order suspended Petitioner from practicing medicine in Kentucky pending the resolution of the charges in the complaint or until further order of the Kentucky Board, in accordance with applicable Kentucky legal authorities.  CMS Ex. 3, at 4; see also ALJ Decision at 4 (finding of fact 7).  Petitioner does not argue, and cannot reasonably argue, that the suspension of his medical license was not adverse to his interests.  Petitioner does not argue that the act of suspension or the Kentucky Board’s order is not a “legal action” for purposes of the operative Medicare enrollment regulations.  The Kentucky Board’s suspension order was an adverse legal action Petitioner was required to report under section 424.516(d)(1)(ii). 

Petitioner attempts to rely on preamble language in service of his argument that CMS stated that only “final” adverse actions are subject to the reporting requirement.  According to Petitioner, the preamble to the final rule discussing section 424.516 specifically states that a physician must notify the Medicare contractor of “any final adverse action within 30 days” and that the regulatory history does not indicate that “any adverse legal action” was to be interpreted broadly to include actions other than “final” actions.  P. Br. at 15 (quoting 73 Fed. Reg. at 69,777).9   In so doing, Petitioner also looks to Kentucky authorities governing licensing review and appeal procedures, arguing that, under those authorities, an emergency license suspension like that imposed on him was not final.  See P. Br. at 9-11.  According to Petitioner, the Kentucky Board made its “final” determination when, on further review, it reinstated his medical license and imposed a probation; the Kentucky Board’s May 9, 2018 order was merely an interlocutory order, an intervening action that was later resolved with a final determination not to impose a suspension, but rather to reinstate his license with probation.  See id. at 13-14. 

That the Kentucky Board’s suspension order arguably was “temporary” in the sense that the applicable Kentucky authorities governing the licensing of physicians contemplated further review proceedings that ultimately resulted in license reinstatement with probation is not the relevant issue.  The issue is whether the Kentucky Board’s order, which as we said earlier, suspended Petitioner’s medical license, is an adverse legal action subject to the reporting requirement in section 424.516(d)(1)(ii).  It is.  Petitioner was required to report it within 30 days after May 9, 2018, but he did not do so.

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Preamble language does not have the force and effect of law as a regulation does, though we may look to preamble language as appropriate (as we did in Ismail) to understand the meaning of a regulation and the drafters’ intent behind and rationale for promulgating a regulation.  Having considered the preamble language on which Petitioner relies, we find Petitioner’s reading of that language selective and inaccurate.  It is true that CMS stated that a physician must notify the Medicare contractor of “any final adverse action within 30 days.”  73 Fed. Reg. at 69,777.  However, CMS did so in the context of explaining what “final adverse action” (section 424.502) means as it relates to the reporting requirement.  In the same page Petitioner cites, CMS also explained its position that “a final adverse action has occurred when the sanction is imposed and not when a supplier has exhausted all of the appeals rights associated with the action itself.”  See 73 Fed. Reg. at 69,777; see also id. at 69,779 (“[W]e believe that final adverse actions, including State licensing suspensions and revocations, should be reported within 30 days of the reportable event, even if the physician . . . plans on appealing the final adverse action.”); id. at 69,780 (“[W]e are finalizing . . . proposed [section] 424.516(d) which would require physicians . . . to notify [their] Medicare contractor of . . . any final adverse action within 30 days of the reportable event.”).  Thus, the very regulatory history on which Petitioner relies indicates that the rule was meant to require reporting of the final adverse action (e.g., a license suspension) itself within 30 days.  CMS did not state that only determinations that had reached “final” resolution (e.g., reinstatement of Petitioner’s Kentucky medical license with probation) must be reported within 30 days.  The preamble is not reasonably read to mean that the drafters intended to exclude a “temporary” event or action like that imposed on Petitioner from the term “final adverse action” and the phrase “any adverse legal actions” for reporting purposes.        

Petitioner’s argument that only “final” adverse actions as identified in the 855-I form need be reported is equally unavailing.  See P. Br. at 11-13 (citing P. Ex. 25).  The form, Petitioner says, instructs that “‘[a]ll applicable final adverse legal actions must be reported’ regardless of whether any records were expunged or any appeals are pending.”  P. Br. at 12 (quoting P. Ex. 25).  As the ALJ noted, the very form Petitioner cites as support for his argument that only “final” adverse legal actions need be reported includes express instructions to report final adverse actions that include “‘Any current or past . . . suspension or voluntary surrender of a medical license in lieu of further disciplinary action.’”  ALJ Decision at 9 (quoting P. Ex. 25, at 12) (ALJ’s emphasis).  The Kentucky Board’s suspension order unquestionably would be included within the category of “any current or past suspension . . . of a medical license.”  And, in the 855-I form, CMS also stated that all final adverse legal actions must be reported even if an appeal is pending.  See P. Ex. 25, at 12.  (Petitioner does not state that he considered, understood, and reasonably relied on the 855-I form to mean that he need not report the suspension and therefore did not do so.  Even assuming he understood the form’s language to mean he need not report the suspension, such an understanding would not have been a reasonable one.)

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In sum, because Petitioner did not report the suspension of his Kentucky medical license, CMS had a lawful basis to revoke his enrollment and billing privileges under section 424.535(a)(9).  We conclude that the ALJ’s decision to uphold Petitioner’s revocation under section 424.535(a)(9) is supported by substantial evidence and free of legal error.10

B.     The ALJ did not err in concluding that CMS had a basis for revoking Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(12).

Under 42 C.F.R. § 424.535(a)(12), CMS or its contractor may revoke the Medicare enrollment of a supplier whose “Medicaid billing privileges are terminated or revoked by a State Medicaid Agency” if the “supplier has exhausted all applicable appeal rights.”  Petitioner acknowledges that “Kentucky Medicaid terminated [his] Medicaid Provider Agreement effective May 11, 2018.”  P. Br. at 7.  Petitioner has not previously disputed, and does not now dispute, that Kentucky Medicaid is a “State Medicaid Agency” for purposes of section 424.535(a)(12).  However, Petitioner asserts that he has not exhausted his appeal rights to challenge the Medicaid termination and, therefore, CMS has not shown that all requirements for revocation under section 424.535(a)(12) were met.  P. Br. at 2-3, 6-9.  According to Petitioner, he “had never received” Kentucky Medicaid’s May 14, 2018 notice of termination and only learned about his termination from CGS’s notice of revocation.  Id. at 6.  Once he learned about his termination from the notice of revocation, by his June 27, 2019 letter, he “dispute[d] and contest[ed] the termination, [the appeal of which] . . . is presently pending.”11   Id. at 6-7, 8-9.

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We first note that the ALJ did not state that Petitioner was “not pursuing” an appeal as Petitioner writes in his brief to the Board.  See P. Br. at 6.  Rather, the ALJ expressly acknowledged Petitioner’s attempt to get Kentucky Medicaid to schedule a dispute resolution meeting through his two letters (see P. Exs. 12, 31), but found no evidence, such as a “letter or other written confirmation,” that Kentucky Medicaid was “entertaining” the (late) appeal.  ALJ Decision at 10.  The ALJ stated that “Petitioner has not shown that he has an appeal pending” with Kentucky Medicaid and “there is insufficient evidence to conclude that Petitioner’s termination is presently under appeal.”  Id.; see also id. at 9 (“Petitioner has no appeal of the termination pending”) (ALJ’s emphasis omitted).

Petitioner acknowledges that “Kentucky Medicaid has not responded to [his] request [for a dispute resolution meeting]” (P. Br. at 8 n.3), as he did before the ALJ in his declaration signed on February 24, 2020.  See P. Ex. 33 ¶ 13 (“No determination has been issued by Kentucky Medicaid on my pending appeal request.”).  Petitioner does not assert that he has shown that an appeal of his termination was pending.  Rather, Petitioner says that, “without a denial, it can be assumed that the appeal is still pending.”  P. Br. at 8 n.3.  And, disputing the ALJ’s determination that the Kentucky Medicaid dispute resolution process should have been resolved “by now” had Kentucky Medicaid decided to consider the appeal (see ALJ Decision at 10), Petitioner merely states that “CMS’s own backlog of appeals shows how regulations with timeframes can be ignored.”  P. Br. at 7. 

Petitioner offers no reasoned explanation, with citation to authority, for his bare assertion that, “without a denial,” that is, without an affirmative statement by Kentucky Medicaid declining to consider his late request for a dispute resolution meeting, it would be reasonable to assume that Kentucky Medicaid is entertaining an appeal of his Medicaid termination.  Petitioner’s letters (see P. Exs. 12, 31) evidence, at most, that Petitioner sought to file a late appeal, not the existence of a pending appeal.  We will not simply accept that an appeal is pending and remains open for resolution without the offer of any proof.  Furthermore, whether CMS or more broadly other administrative-level decision-makers have a “backlog of appeals” is simply irrelevant.  No showing was made that Kentucky Medicaid has a “backlog of appeals” or that its consideration of Petitioner’s late request was impacted by any “backlog.” 

The ALJ explained why he determined “there is insufficient evidence to conclude that Petitioner’s termination [from Medicaid] is presently under appeal.”  ALJ Decision at 10.  We agree with the ALJ’s reasoning for that determination.  Petitioner did not produce anything showing that he had an appeal pending before Kentucky Medicaid (such as a letter, docket entry, or other written confirmation) despite the passage of some eight months after the Petitioner sent his June 27, 2019 letter asking Kentucky Medicaid to

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consider his appeal, through February 24, 2020, when he signed his declaration.12   The ALJ considered, and quoted, Kentucky regulations governing the termination proceedings, which set out relatively short processing time frames.  ALJ Decision at 10 (quoting 907 KAR 1:671 § 8(7)).  Under those regulations, Kentucky Medicaid is required to inform the Medicaid provider whose billing privileges were terminated of the time and place for the dispute resolution meeting within ten days of its receipt of the request, and the meeting is to be held within 40 days of the request unless it is postponed, which may be for a maximum of 60 days.  907 KAR 1:671 § 8(7); see also P. Ex. 15 (providing the regulation’s full text).  On this, we note that, in his January 9, 2020 follow-up letter to Kentucky Medicaid reasserting his right to be heard, Petitioner indicated that a “staffer” at Kentucky Medicaid informed his attorney that his request “necessitates [review by] a higher level of departmental authority.”  P. Ex. 31, at 1.  If, as Petitioner’s letter indicates, Kentucky Medicaid has a separate process in addition to the KAR process the ALJ considered for addressing situations in which a provider asserts that an appeal could not have been filed earlier, Petitioner has not stated anything further about that process.  At no time did Petitioner state what information he obtained about what a “higher-level” review entailed and whether Kentucky Medicaid was in fact conducting such a review.  Petitioner did not offer the ALJ anything showing that such a review had been performed or was in progress.  In short, the double-hearsay statement Petitioner attributed to a Kentucky Medicaid “staffer” falls far short of establishing that an administrative appeal is “presently pending.”

We also note that the ALJ issued his decision on March 23, 2020, nearly nine months after Petitioner asked Kentucky Medicaid for a dispute resolution meeting regarding his termination from Medicaid.  See CMS Ex. 8; P. Ex. 12.  At no time after Petitioner’s request did Petitioner present to CMS or the ALJ a single document from Kentucky Medicaid indicating that his termination (effective May 11, 2018) was under review.  The total lack of evidence in this regard fully supports the ALJ’s determination that the record

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evidence is insufficient to conclude that Petitioner’s termination is presently under appeal.13

Petitioner cites as support for reinstatement of his billing privileges Victor Lyapis, M.D., P.C., DAB CR4476 (2015) (issued by a different ALJ), in which the ALJ reversed a section 424.535(a)(12) revocation.14   P. Br. at 8.  In reversing the revocation in Lyapis, the ALJ concluded that CMS was not entitled to summary judgment and that undisputed evidence demonstrated that petitioners (Dr. Lyapis and his practice, a solely-owned professional corporation) had not exhausted their appeal rights in challenging their termination from Medi-Cal (California Medicaid).  Lyapis at 2, 8.  The record in Lyapis included online docket entries showing that a “Petition for a Writ of Mandate” challenging the termination of petitioners’ Medi-Cal enrollment remained pending in the Superior Court of California several months after the date of the CMS contractor’s revocation.  Id. at 5.  The ALJ noted, “In neither its initial nor reconsidered determination did [the CMS contractor] consider the pending Petition for a Writ of Mandate” (id.), which was a part of the applicable appeal rights petitioners challenging the Medi-Cal termination had.  Id. at 5-7.  Lyapis is distinguishable from Petitioner’s case.  Unlike Lyapis, the record in Petitioner’s case includes no evidence of a pending appeal of the termination from Medicaid.  Lyapis does not help Petitioner’s cause.

In sum, Petitioner offers no convincing argument or proof that causes us to question the ALJ’s rationale in upholding the revocation under section 424.535(a)(12).  We conclude that the ALJ’s decision to uphold Petitioner’s revocation under section 424.535(a)(12) is supported by substantial evidence and free of legal error.

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C.     The ALJ did not err or abuse his discretion in sustaining CMS’s objection to Petitioner’s request to “cross-examine” S.S.

In his opening brief to the Board, Petitioner asserts that the ALJ erred in “sustaining CMS’s objection to the testimony of [S.S.]” (P. Br. at 2), but does not otherwise explain in his brief why he believes the ALJ erred.  In its response brief, CMS argues that the ALJ “ruled correctly in denying Petitioner’s request to cross-examine [S.S.] since neither party offered her as a witness” and “since Petitioner’s request did not comply with the ALJ’s prehearing order” (CMS Response Br. at 8 (CMS’s emphasis removed)), which “made one party’s opportunity to cross-examine a witness contingent on the other party’s first offering that person as a witness and filing written direct testimony.”  Id. at 9-10 (citing ALJ’s Standing Prehearing Order ¶¶ 12, 13).  Nevertheless, CMS says, Petitioner asked to cross-examine S.S., a “non-witness,” and “did not allege that he had attempted to subpoena [S.S.].”  CMS Response Br. at 10.  In reply, Petitioner states that S.S. “should have been allowed to testify” because his only “opportunity” to question S.S. (or another CGS employee) was “through the [p]roposed [w]itness [l]ist.”  P. Reply Br. at 6 (Petitioner’s emphasis removed).  Petitioner states that he “did not” ask the ALJ to issue a subpoena in accordance with section 498.58, because such a request must be made at least five days before a hearing, but no hearing was held.  Id.  Accordingly, Petitioner says, “the opportunity to cross-examine [S.S.] should have been allowed.”  Id. 

The regulations in 42 C.F.R. Part 498 that govern this case provide for limited pre-hearing discovery.  Part 498 gives ALJs only one means – the issuance of a subpoena – to compel the production of relevant evidence that the parties themselves have not produced for admission into the record.  See Michael Turano, M.D., DAB No. 2922, at 14 (2019) (citing cases).  Since CMS did not identify S.S. as a witness (and did not submit S.S.’s direct testimony in writing in accordance with the ALJ’s instructions) who would then be subject to cross-examination by Petitioner, Petitioner’s only means to obtain the testimony of S.S. or another CGS employee was through the issuance of a subpoena to compel that individual to present herself or himself to testify (and produce documents if ordered to do so).  But Petitioner did not use the opportunity to ask the ALJ to issue a subpoena or comply with the content requirements for requesting a subpoena in section 498.58(c)(3). 

To the extent Petitioner’s argument may be understood as asserting that he could not have complied with section 498.58(b) (a party must ask the ALJ to issue a subpoena at least five days before the hearing date) since no hearing date was set, we reject that argument, which in our view misses the point.  In his prehearing exchange, Petitioner identified S.S. as a hearing witness, but did not submit the written direct testimony of S.S or request that the ALJ issue a subpoena to compel S.S. to testify.  Rather, Petitioner sought to “cross-examine” S.S. (see Petitioner’s Proposed Witness List and Request to Cross-Examine Witnesses, at 1-2), but there was no basis for cross-examination because S.S. was never identified as a witness for CMS.  See ALJ’s Standing Prehearing Order ¶ 12 (“A party

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has the right to cross-examine any witness for the opposing party.”).  Neither the fact that no hearing date was set, nor the deadline in section 498.58(b), precluded Petitioner from submitting a subpoena request in accordance with section 498.58 once he determined (by the time of his pre-hearing exchange) that he wanted S.S. to provide testimony.15   Moreover, Petitioner was on notice that under the ALJ’s procedures, an in-person hearing would be necessary “only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine” that witness.  ALJ’s Standing Prehearing Order ¶ 13.  Here, the ALJ properly concluded that a hearing was not necessary because CMS did not seek to cross-examine Petitioner, the only witness for whom admissible written direct testimony had been submitted (see P. Ex. 33), and Petitioner did not make a request to subpoena any witness.  ALJ Decision at 2-3.16

Had Petitioner asked the ALJ to issue a subpoena, the ALJ would have had to consider whether the testimony of S.S. was “reasonably necessary for the full presentation of [this] case” in accordance with section 498.58(a).  As the ALJ explained, even if Petitioner had asked the ALJ to issue a subpoena (which he did not), the ALJ would have denied the request because “[S.S.’s] testimony is unnecessary and inappropriate.”  ALJ Decision at 3 (explaining why testimony of S.S. would be irrelevant).  The Board has repeatedly rejected allegations of ALJ error or abuse of discretion in denying subpoena requests where the evidence sought was determined not reasonably necessary for the full presentation of the case.  See Turano at 15-16 (citing cases).  Nowhere in his brief or reply does Petitioner express disagreement with the ALJ’s rationale for determining that S.S.’s testimony was not reasonably necessary for the presentation of this case.    

The ALJ has broad discretionary authority over evidentiary matters.  We defer to the ALJ’s evidentiary rulings in the absence of a compelling reason not to do so.  See HeartFlow, Inc., DAB No. 2781, at 19 (2017) (citation omitted).  Petitioner has not given us any reason to depart from the Board’s long-standing practice of deferring to an ALJ as to evidentiary matters.  We see no reason to disturb the ALJ’s ruling sustaining CMS’s objection to Petitioner’s request to “cross-examine” S.S.

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D.     The duplicate exhibits Petitioner submitted to the Board are unnecessary and are not admitted by the Board.

With his brief in support of his appeal to the Board, Petitioner inappropriately submitted copies of Petitioner’s exhibits 1-32, which were already admitted into the record by the ALJ.  (Petitioner did not submit to the Board another copy of his exhibit 33, which the ALJ also admitted.)  CMS asks the Board to exclude the documents Petitioner submitted to the Board.  CMS Response Br. at 10-11 (citing Turano, DAB No. 2922, at 16 and 42 C.F.R. § 498.86(a) (excepting provider/supplier enrollment appeals from appeals in which the Board may admit evidence in addition to that in the record of the ALJ proceedings)).  Petitioner acknowledges the section 498.86(a) exception, but states that the regulation “is silent as to previously submitted evidence.”  P. Reply Br. at 6.  Petitioner represents that all the documents he submitted to the Board are “identical” to those he submitted to the ALJ and are not “new evidence” subject to exclusion under section 498.86(a).  Id.  Petitioner takes the view that section 498.86(a) does not impose an “absolute bar to the admission” of the documents he submitted to the Board.  Id.

The dispute about the documents Petitioner submitted to the Board ultimately is of no consequence to either party.  Petitioner himself indicates that he submitted duplicate copies of documents that already are a part of the evidentiary record.  Having examined Petitioner’s exhibits 1-32 in the record of the ALJ proceedings and the documents Petitioner submitted to us, we are satisfied that the latter are the same exhibits the ALJ admitted into evidence.  CMS does not specifically dispute that the documents Petitioner submitted to the Board duplicate the evidence the ALJ admitted and does not now argue that the ALJ erred or abused his discretion in admitting Petitioner’s exhibits 31 and 32 over CMS’s objection.  Accordingly, there would be no prejudice to CMS even if the documents Petitioner submitted to the Board were “admitted.”  Petitioner is certainly not prejudiced by the exclusion of duplicative exhibits.  The duplicate documents Petitioner submitted to the Board are not admitted into the evidentiary record; however, they will be retained as a part of the administrative record of this case.

E.     The effective date of revocation is June 27, 2019.17

Section 424.535(g), which addresses the effective date of revocation, states:

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Revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the . . . supplier, except if the revocation is based on Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational.  When a revocation is based on a Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational, the revocation is effective with the date of exclusion of debarment, felony conviction, license suspension or revocation or the date that CMS or its contractor determined that the . . . supplier was no longer operational.

42 C.F.R. § 424.535(g).

In this case, revocation was based on the failure to report the suspension of Petitioner’s Kentucky medical license and the termination of his participation in Kentucky Medicaid.  Thus, in accordance with section 424.535(g), revocation took effect 30 days after the CMS contractor mailed its notice of revocation (initial determination) to Petitioner.  The notice of revocation, dated May 28, 2019, stated that Petitioner’s billing privileges would be revoked “effective June 23, 2019,” which was 26 days from the date of the notice of revocation.  See CMS Ex. 5, at 1 (contractor’s emphasis).  On reconsideration, CMS also stated that the effective date of revocation was “June 23, 2019.”  CMS Ex. 6, at 4.

The initial and reconsidered determinations reflect an effective date of revocation that does not comport with section 424.535(g).  In the absence of any record evidence or argument raising a question of whether the notice of revocation was mailed to Petitioner on a date other than the date of the notice, May 28, 2019, we will assume that the contractor mailed the notice to Petitioner that day (not before it).  By operation of section 424.535(g), the effective date of revocation is June 27, 2019, 30 days after May 28, 2019.

The two-year re-enrollment bar began on the effective date of revocation.18

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Conclusion

We affirm the ALJ’s conclusion that CMS lawfully revoked Petitioner’s Medicare enrollment and billing privileges.  The effective date of revocation is June 27, 2019.  The two-year re-enrollment bar began on the effective date of revocation.

1. Various 42 C.F.R. Part 424 regulations were revised after May 28, 2019, when CMS’s contractor issued its initial determination revoking Petitioner’s enrollment and billing privileges.  Notably, sections 424.535(a)(9) and 424.535(a)(12) were revised.  See 84 Fed. Reg. 47,794, 47,854 (Sept. 10, 2019) (eff. Nov. 4, 2019).  We apply the Part 424 regulations that were in effect when CMS’s contractor issued its initial revocation determination.  John P. McDonough III, Ph.D., et al., DAB No. 2728, at 2 n.1 (2016).
• back to note 1
2. The background section is drawn from the ALJ Decision and the record of the ALJ proceedings.  We do not make any additional findings of fact.
• back to note 2
3. Petitioner unnecessarily filed multiple copies of his exhibits before the ALJ and the Board.  “P. Ex. _” refers to the 33 exhibits Petitioner filed in the ALJ proceeding as part of his pre-hearing exchange.
• back to note 3
4. As we note later, Petitioner represents that he did not learn about his termination from Medicaid until he received CGS’s revocation notice.
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5. The relevant Kentucky regulation requires only that a notice of termination “[b]e mailed to a provider’s last known mailing address.”  907 KAR 1:671 § 6(17)(a)(2).  Petitioner has never argued (or presented evidence) that the address on the notice of termination (P. Ex. 11) was not his “last known mailing address” on file with Kentucky Medicaid.
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6. Petitioner submitted duplicate copies of his exhibits 1-32 to the Board.  Petitioner did not submit a duplicate copy of his exhibit 33, submitted to the ALJ, to the Board (see infra at 19).
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7. Citing Dana Marks, M.D., DAB CR4616 (2016), Petitioner states that “it appears that some adjudications have wrongly imposed revocations based upon interlocutory orders and where the final decision did not impose suspension.”  P. Br. at 15.  Petitioner maintains that Marks is not consistent with applicable regulations or the instructions in Form CMS-855I.  Id.  Our task is to determine whether the ALJ’s decision now before us is legally correct and supported by substantial evidence of record.  As we explain, the ALJ’s analysis as to revocation under section 424.535(a)(9) is legally and factually sound.  The ALJ properly rejected Petitioner’s argument that the Kentucky Board’s suspension order was a temporary determination he had no obligation to report.  We need not and do not further comment on Petitioner’s attempt to further advance his position in reliance on Marks (a decision issued by the same ALJ who issued the decision now before us) with which Petitioner clearly disagrees.
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8. After Ismail, the Board applied a similar rationale in affirming revocations in which petitioners raised various arguments about the temporary nature of license suspensions.  See Meindert Niemeyer, M.D., DAB No. 2865, at 6-10 (2018); Angela R. Styles, M.D., DAB No. 2882, at 5-8 (2018); Glenn Alden Harrison, M.D., DAB No. 3023, at 7-9 (2020).
• back to note 8
9. Petitioner also argues that such a broad interpretation for reporting purposes would be “so all encompassing” as to include “everything from minor traffic violations (and other insubstantial misdemeanors) to family law rulings and divorce judgments,” and would thus “violate Due Process of Law as being void for vagueness.”  P. Br. at 15 (citation omitted).  We need not expand our discussion to decide whether the phrase “any adverse legal action” contemplates events such as the ones Petitioner identifies to resolve this case.  As explained, the suspension of Petitioner’s Kentucky medical license was subject to the reporting requirement.  To the extent Petitioner is asserting that the operative Part 424 regulations are unconstitutional, we must follow applicable enrollment authorities and do not have the authority to reinstate billing privileges based on challenges to the constitutionality of a statute or regulation.  See, e.g., Cornelius M. Donohue, DPM, DAB No. 2888, at 8-9 (2018) (citing Zahid Imran, M.D., DAB No. 2680, at 9 (2016)).
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10. We affirm the ALJ’s decision to uphold CMS’s revocation of Petitioner’s billing privileges under both section 425.535(a)(9) and section 425.535(a)(12), but only one basis need be shown for us (and the ALJ) to uphold a legal revocation.  See, e.g., Jason R. Bailey, M.D., P.A., DAB No. 2855, at 15 (2018) (“Concluding that CMS had one of the bases for revocation enumerated in the regulations is all that is necessary to uphold revocation.”) (collecting cases) (emphasis omitted); Meadowmere Emergency Medical Physicians, PLLC, DAB No. 2881, at 8 (2018) (stating that ALJ correctly stated that she need not find noncompliance with more than one of the bases for revocation in section 424.535(a) to uphold revocation).  As for CMS’s decision to revoke, as here, on two grounds, it is not the ALJ’s or the Board’s role to look behind that discretionary exercise of revocation authority.  Our role, and the ALJ’s, is to determine whether CMS had a legitimate basis to revoke.  See Ahmed, DAB No. 2261, at 19.
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11. CMS states that Petitioner’s “excuse” that he was unaware for a full year (May 2018 notice of Medicaid termination – May 2019 CGS notice of revocation) that Medicaid would not reimburse any of his Medicaid billings “makes little sense” and “weighs against his credibility.”  CMS Response Br. at 7.  According to CMS, even accepting that Petitioner did not know about the Medicaid termination, Petitioner “still must have suspected that something was amiss with his Medicaid status” and should have contacted Kentucky Medicaid earlier.  Id.  Petitioner does not respond to this directly and specifically, except to say that he “was not practicing in Kentucky at the time of the Medicaid termination.”  P. Reply Br. at 4.  In any event, by representing that he learned about the termination only after he received CGS’s revocation notice, Petitioner effectively concedes that he did not attempt to appeal the Medicaid termination until more than a year after the notice of termination was mailed to his last known mailing address.
• back to note 11
12. As we noted in the case background, CMS’s reconsidered determination noted that Petitioner did not submit any evidence supporting his assertion that he had not exhausted his appeal rights as to the Medicaid termination, or evidence that Kentucky Medicaid had “accepted” his June 27, 2019 letter and that an appeal of the termination was pending.  CMS Ex. 6, at 6.  CMS also added, “[T]he Kentucky State Medicaid has reported to CMS that [Petitioner] has exhausted all his appeal rights in regards to his termination.”  Id.  Before the ALJ, Petitioner did not specifically dispute CMS’s statement that Kentucky Medicaid reported to CMS that he had exhausted his appeal rights to challenge the Medicaid termination and did not produce evidence showing that an appeal was under review.
• back to note 12
13. We note that, in support of his statement that CMS may not revoke Medicare billing privileges unless the requirements of section 424.535(a)(12) are fully met, Petitioner simply cites section 424.535(a)(12) and Douglas Bradley, M.D., DAB No. 2663 (2015) (affirming the ALJ’s decision upholding revocation under section 424.535(a)(12)), appeal dismissed per stipulation, Bradley v. Burwell, No. 2:15-cv-08835 (D. N.J. June 2, 2017).  See P. Br. at 7.  Bradley is distinguishable from Petitioner’s case in several respects, and there is nothing in the Board’s rationale in Bradley that materially favors Petitioner.  If anything, the Board’s statement in Bradley that section 424.535(a)(12) “does not require a finding by CMS that a State Medicaid Agency’s action . . . was consonant with due process” (Bradley at 15), but rather only a finding that the Agency’s “action has become unappealable, or otherwise final under state law” (id. at 16), tends to cut against Petitioner’s argument that he has not been afforded the full extent of process due him under the Kentucky regulations to challenge the Medicaid termination as that relates to the revocation of his Medicare billing privileges based on the Medicaid termination.  See P. Br. at 7-8; P. Ex. 12.  In any case, Petitioner does not specifically explain why he believes Bradley supports any argument he raises.  We therefore need not further discuss Bradley.
• back to note 13
14. We have no record of an appeal of Lyapis to the Board pursuant to 42 C.F.R. § 498.80, and thus there is no Board decision on Lyapis to be discussed here. An ALJ’s decision is not precedential and does not bind the Board, but we look to ALJ decisions as appropriate to the extent the reasoning in those decisions is on point and persuasive. See John M. Shimko, D.P.M., DAB No. 2689, at 5 (2016). We do not reject the reliance on Lyapis because it is an ALJ decision. Rather, as we explain, Lyapis is distinguishable from Petitioner’s case.
• back to note 14
15. After CMS objected to Petitioner’s request to “cross-examine” S.S., pointing out that S.S. was not a witness and that Petitioner had not sought to subpoena S.S., Petitioner still did not request a subpoena and never responded to CMS’s objection.
• back to note 15
16. CMS did not submit the written direct testimony of any proposed witness.  The Board has determined that requiring a party to first submit the direct testimony of its witnesses in writing is consistent with Part 498 regulations and does not offend due process so long as the right to effective cross-examination is safeguarded.  See Vandalia Park, DAB No. 1940, at 28-29 (2004), aff’d, Vandalia Park v. Leavitt, 157 F. App’x 858 (6th Cir. 2005); Igor Mitreski, M.D., DAB No. 2665, at 7 (2015) (not holding an in-person hearing does not generally pose a due process concern where neither party seeks to cross-examine any witness for whom the opposing party has submitted written direct testimony).  Petitioner does not raise any arguments about the ALJ’s requiring a party to offer admissible direct testimony in writing or his determination not to hold a hearing.
• back to note 16
17. The Board has determined that, “in appeals of CMS revocation actions, the Board may consider the question of effective date to determine whether CMS has correctly assigned the effective date in accordance with the regulations based on the cited basis for revocation.”  Wendell Foo, M.D., DAB No. 2769, at 17 (2017) (citations omitted).  On remand to the ALJ in DAB No. 2769, the ALJ upheld the revocation of Dr. Foo’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(5).  Wendell Foo, M.D., DAB CR5003, at 14-15 (2018).  On appeal of DAB CR5003, the Board affirmed that ALJ decision.  Wendell Foo, M.D., DAB No. 2904, at 1 (2018).  On further appeal, the U.S. District Court for the District of Hawaii affirmed DAB No. 2904.  Foo v. Azar, 420 F. Supp. 3d 1100, 1102 (D. Haw. 2019).
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18. Petitioner acknowledges that the revocation “was made effective on June 23, 2019,” but states that, “[p]ursuant to 42 C.F.R. 424.535(c), the contractor established a re-enrollment bar for a period of two years, which began from the date of the [initial determination] letter.”  P. Br. at 4-5 (italics added).  In the conclusion paragraph of his brief, however, Petitioner refers to the imposition of a three-year re-enrollment bar, asserting that the contractor and CMS erred in imposing a re-enrollment bar where, as here, no revocation basis was established.  Id. at 16.  As we have explained, CMS lawfully revoked Petitioner’s Medicare billing privileges.  Accordingly, CMS lawfully imposed a re-enrollment bar, which the initial determination states would be for two years.  As for the effective date of revocation, Petitioner has not previously raised, and does not now raise, any specific dispute about the effective date.  However, Petitioner’s statement in pages 4-5 of his brief suggests a misunderstanding about when the re-enrollment bar begins.  The two-year re-enrollment bar begins not from the date of the initial determination as Petitioner says, but from the effective date of revocation, which begins 30 days from the date of mailing of the initial determination.
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