Ross Lentini, M.D., DAB CR5284 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative contractor, revoked the Medicare enrollment and billing privileges of Ross Lentini, M.D. (Dr. Lentini or Petitioner) for noncompliance with enrollment requirements and failure to report an adverse legal action under 42 C.F.R. § 424.535(a)(1) and (9).  Dr. Lentini requested a hearing to dispute the revocation.  Based on the evidence of record, I conclude that Dr. Lentini was not in compliance with enrollment requirements because his medical license was suspended.  Therefore, I affirm CMS’s determination to revoke Dr. Lentini’s Medicare enrollment and billing privileges, effective August 10, 2016.

I.  Case Background and Procedural History

Petitioner is a physician who was enrolled to provide health care services to Medicare beneficiaries and receive reimbursement from the Medicare program.  On October 24, 2016, a CMS administrative contractor revoked Petitioner’s Medicare enrollment and billing privileges, effective August 10, 2016, based on violations of 42 C.F.R. § 424.535(a)(1) and (9).  The notice imposed a one-year re-enrollment bar beginning November 23, 2016.  Specifically, the administrative contractor determined that Petitioner was noncompliant with Medicare enrollment requirements because his Ohio

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medical license had been suspended effective August 10, 2016.  Further, the administrative contractor determined that Petitioner failed to report the suspension (i.e., an adverse legal action) by the State Medical Board of Ohio (Ohio Board) to the Medicare contractor as required by 42 C.F.R. § 424.516(d)(1)(ii).  CMS Exhibit (Ex.) 2.

Subsequently, the CMS administrative contractor received a Corrective Action Plan from Petitioner indicating he was unaware of the requirement to report his license suspension to Medicare and that he was working to “rectify this unfortunate situation” with the Ohio Board.  CMS Ex. 3 at 1.  The administrative contractor denied Petitioner’s Corrective Action Plan because his license was suspended and was inactive.  CMS Ex. 4.

On March 24, 2017, Petitioner filed a request for reconsideration with the CMS administrative contractor.  Petitioner acknowledged that his Ohio medical license was suspended, but asserted he was unaware of the requirement to report his medical license suspension to CMS.  Petitioner asserted his Ohio medical license was reinstated on December 24, 2016, and he requested that the one-year re-enrollment bar be waived.  CMS Ex. 6; see also CMS Ex. 5.

On April 19, 2017, the CMS administrative contractor issued a reconsidered determination.  CMS Ex. 7.  The administrative contractor noted that Petitioner’s request was timely and that the reconsideration request asked for the one-year re-enrollment bar to be waived so that he could re-apply with Medicare.  The administrative contractor upheld the revocation of Petitioner’s billing privileges and the re-enrollment bar, concluding that both were issued correctly in accordance with 42 C.F.R. § 424.535(a)(1) and (9), (c).  CMS Ex. 7 at 2.

On May 23, 2017, Petitioner timely filed a request for a hearing with the Departmental Appeals Board, Civil Remedies Division.  In accordance with my June 21, 2017 Acknowledgment and Pre-hearing Order (Pre-hearing Order), CMS timely filed a motion for summary judgment and brief (CMS Br.), along with CMS Exs. 1-7.  Petitioner timely filed his pre-hearing exchange, which included a response brief (P. Br.) and P. Exs. 1-2.

Shortly after receiving the parties’ pre-hearing submissions, I began hearing and deciding cases in another component of the Department of Health and Human Services, and a different ALJ was assigned to this case.  However, upon my return to this component, this case was again assigned to me.

II.  Decision on the Record

Because neither party objected to any of the proposed exhibits, I admit CMS Exs. 1-7 and P. Ex. 2 into the record.  Pre-hearing Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 14(e).  While CMS did not object to P. Ex. 1, I nevertheless exclude it from the

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record.  Petitioner’s Ex. 1 consists of CMS’s motion for summary judgment with highlighting.  This is not substantive evidence and is not properly marked as an exhibit.

The Pre-hearing Order advised the parties that an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine a witness.  Pre-hearing Order ¶¶ 8, 9, and 10; see Vandalia Park, DAB No. 1940 (2004); Pacific Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross-examine those witnesses).  Neither party submitted any proposed witnesses.  Therefore, a hearing in this case is unnecessary and I decide this case based on the written record.  CRDP §§ 16(b), 19(b), (d).

III.  Issue

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

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

My findings of fact and conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

In order to participate in the Medicare program as a supplier, individuals must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510, and 424.516.  CMS may revoke the Medicare billing privileges of suppliers who do not continue to comply with all enrollment requirements.  Id. § 424.535(a)(1).  CMS may also revoke the billing privileges of a supplier who fails to timely inform CMS of any adverse legal action taken against the supplier.  Id. §§ 424.516(d)(1); 424.535(a)(9).

1.  On August 10, 2016, the State Medical Board of Ohio indefinitely suspended Petitioner’s medical license.

On August 10, 2016, Petitioner’s medical license was indefinitely suspended based on a Step 1 Consent Agreement between Petitioner and the Ohio Board.  CMS Ex. 1; P. Ex. 2.  On December 14, 2016, a Step II Consent Agreement between Petitioner and the Ohio Board became effective, which reinstated Petitioner’s medical license with probationary conditions.  CMS Ex. 5; P. Ex. 2.

2.  CMS had a legitimate basis to revoke Petitioner’s enrollment and billing privileges in the Medicare program under 42 C.F.R. § 424.535(a)(1), because Petitioner was no longer in compliance with enrollment requirements once his Ohio medical license was suspended.

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

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

In order to enroll in Medicare and receive billing privileges, Petitioner needed to be licensed by Ohio, the state where he practiced as a physician.  Petitioner does not dispute that his medical license in Ohio was suspended on August 10, 2016, and the suspension lasted until December 14, 2016, when the Ohio Board reinstated his license based on his agreement to follow specific probationary terms for five years.  P. Br. at 1; P. Ex. 2 at 1; CMS Exs. 3, 6.  When the Ohio Board suspended Petitioner’s medical license, Petitioner no longer met the enrollment requirement of 42 C.F.R. §§ 410.20(b) and 424.516(a)(2).  Petitioner must be able to demonstrate that he meets enrollment requirements.  42 C.F.R. § 424.545(c).  Petitioner failed to do this.  Therefore, CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(1).

3.  I do not need to decide whether Petitioner failed to report an adverse legal action under 42 C.F.R. § 424.535(a)(9).

The regulations require that a physician report “any adverse legal action” to the Medicare contractor within 30 days.  42 C.F.R. § 424.516(d)(1)(ii).  The phrase “adverse legal action” is not specifically defined in 42 C.F.R. Part 424.  However, “final adverse action” is defined in the regulations to include “[s]uspension or revocation of a license to provide health care by any State licensing authority.”  Id. § 424.502.  Failure to report an adverse legal action is a basis to revoke a physician’s Medicare enrollment and billing privileges.  Id. § 424.535(a)(9).

CMS argues that Petitioner failed to report the suspension of his medical license to the Medicare contractor within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii), and thus, another basis for revocation of Petitioner’s billing privileges exists under 42 C.F.R. § 424.535(a)(9).

Because I have concluded that Petitioner did not comply with Medicare requirements for enrollment due to the suspension of his medical license, I do not need to decide whether

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Petitioner also violated 42 C.F.R. § 424.535(a)(9).  If CMS revokes a supplier’s billing privileges, the effective date of the revocation is usually 30 days after the date on the notice of revocation.  However, if CMS revokes a supplier’s billing privileges because it did not meet enrollment requirements, then the effective date of revocation is the date CMS determined that the provider was out of compliance with the enrollment requirements.  42 C.F.R. § 424.535(g).  CMS imposed a retroactive effective date of revocation in this case.  CMS Ex. 2 at 1.  Therefore, it was only necessary for me to decide whether to uphold the finding that Petitioner was noncompliant with enrollment requirements to affirm CMS’s determination to retroactively revoke Petitioner’s Medicare enrollment and billing privileges.

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

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

CMS imposed a one-year re-enrollment bar on Petitioner.  CMS Ex. 2 at 2.  Petitioner argues that he should not be subjected to a one-year bar given that Petitioner did not render services during the time his license was suspended.

I am unable to consider Petitioner’s arguments.  The length of the re-enrollment bar CMS imposes is not a determination subject to review by an administrative law judge. Vijendra Dave, M.D., DAB No. 2675 at 9 (2016) (“our authority in a revocation case does not extend to reviewing the length of the reenrollment bar imposed by CMS.”).  Even if I had authority to review the length of the re-enrollment bar, I could not grant Petitioner what he seeks:  a re-enrollment bar that lasts less than a year.  42 C.F.R. § 424.535(c)(2).  CMS properly imposed the minimum re-enrollment bar of one year mandated by the regulations.  42 C.F.R. § 424.535(c)(2).  CMS and I are both bound by the regulations because they have the force and effect of federal law.  See Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979); 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

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V.  Conclusion

I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges.