Timur Pogodin, M.D., DAB CR5516 (2020)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative contractor, Noridian Healthcare Solutions (Noridian), revoked the Medicare enrollment and billing privileges of Timur Pogodin, M.D. (Petitioner), because the State of California - Health and Human Services Agency, Department of Health Care Services (DHCS) terminated Petitioner’s California Medicaid program provider agreement, and CMS upheld this determination in a reconsidered determination. Petitioner requested a hearing to dispute his revocation. I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges.

I. Background and Procedural History

Petitioner is a physician who was enrolled in the Medicare program. See CMS Exhibit (Ex.) 6 at 3. On February 21, 2017, DHCS informed Petitioner that it was deactivating his provider numbers, effective 20 days from the date of the letter. CMS Ex. 5 at 2. The

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letter discussed that Petitioner failed to disclose required information on a Medi-Cal1 Provider Disclosure Statement. CMS Ex. 5 at 1-2. DHCS explained:

The Medi-Cal Provider Agreement (DHCS 6208) you signed and attested you read and understood states, “Provider agrees to disclose all information as required in Federal Medicaid laws and regulations and any other information required by DHCS, and to respond to all requests from DHCS for information. Provider further agrees that the failure of Provider to disclose the required information, or the disclosure of false information shall, prior to any hearing, result in the denial of the application for enrollment or shall be grounds for termination of enrolment [sic] status or suspension from the Medi-Cal program, which shall include deactivation of all provider numbers used by Provider to obtain reimbursement from the Medi-Cal program.”

On November 17, 2016, DHCS notified you of the discrepancies found during the initial review of your application, received on August 23, 2016. You were given 60 days to remediate these discrepancies and provide documentation that the discrepancies have been remediated. Based upon a review of the re-submitted application, DHCS review found that you failed to disclose the information required by CCR, Title 22, Section 51000.35(b)(3).

Specifically, you failed to disclose your ownership or control interest in the following health care providers: National Council on Alcoholism and Drug Dependence of East San Gabriel & Pomona Valleys, Inc., Your Personal Healthcare, and Porter Ranch Medical Center. You also failed to disclose that [another individual], CEO has ownership and control interest in the following health care providers . . . .

Item 9, on Page 9, of the Medi-Cal Disclosure Statement (DHCS 6207) requires you to: “List the name and address of all health care providers, participating or not participating in Medi-Cal, in which the above individual also has an

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ownership or control interest.” Your response to this item regarding [another individual], CEO and yourself was “None”.

CMS Ex. 5 at 1-2.

On March 26, 2019, Noridian issued an initial determination that revoked Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(12), effective April 25, 2019. CMS Ex. 4 at 1. Noridian also informed Petitioner that he was barred from re-enrolling in the Medicare program for two years, effective 30 days from the date of postmark of the letter. CMS Ex. 4 at 2. Noridian directed that “[i]f you believe that this determination is not correct, you may request a reconsideration before a contractor hearing officer,” and provided information regarding the process Petitioner should follow to timely request reconsideration. CMS Ex. 4 at 1. Noridian specifically instructed that if Petitioner had additional information for either a hearing officer or an administrative law judge (ALJ) to consider, he “must submit that information with [the] request for reconsideration” and that this would be his “only opportunity to submit information during the administrative appeals process . . . unless an [ALJ] specifically allows [him] to do so under 42 [C.F.R.] § 498.56(e). CMS Ex. 4 at 1.

Petitioner submitted a corrective action plan request form, dated April 2, 2019. CMS Ex. 1. Petitioner explained, with respect to his Medi-Cal termination:

I called Medicaid . . . and the rep told me that my individual provider enrollment was not updated since 03/03/2016 and Medicaid received application to update the enrollment information on 03/07/2017 but the application was missing and returned back on 03/28/2017 requesting more information. Because of many addresses on file, the correspondence was never received or update was made on the account. That resulted in my Medicaid provider agreement termination.

Since my practice is mostly based on Medicare patients, I want to continue to be a Medicare Provider and after talking with Medicaid rep, I started [Medi-Cal] enrollment application online . . . today, on 04/02/2019. However, this application takes at least 180 days to be approved and I do not want to lose my Medicare provider status during this time.

CMS Ex. 1 at 1. In an another corrective action plan request form bearing the same date, Petitioner stated:

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I know as a provider I am responsible to update all the provider data for both Medicare and Medicaid and I have relied on previously my staff to do all these applications for me. I should have followed up on status of all applications done on behalf of me and I have learned my lesson. These were all honest mistakes since I was busy with patient care. Please allow me to stay as a Medicare provider until my Medicaid application gets processed and approved.

CMS Ex. 1 at 2. Petitioner did not submit any supporting documentation with either of these two forms.

Petitioner submitted additional correspondence dated April 13, 2019, without any supporting documentation, in which he requested a 90-day stay of the revocation of his Medicare enrollment and billing privileges. CMS Ex. 3. Petitioner argued that he did not receive DHCS’s February 21, 2017 letter until April 3, 2019, and that “it appears that I was a victim of a crime (identity theft and false impersonation) when someone else used my name without my knowledge or consent.” CMS Ex. 3 at 1. Petitioner stated that “[w]ere I to be terminated from Medicare/Medicaid privileges abruptly, it would cause significant harm to my patient population, a large percentage of which is comprised of Medicaid and Medicare beneficiaries.” CMS Ex. 3 at 1. With the exception of enclosing a copy of Noridian’s March 26, 2019 letter, Petitioner did not submit any supporting documentation with this letter.

Petitioner, through his current counsel, submitted another letter dated April 19, 2019, in which counsel reported that he was “supplementing the provider’s prior proposed Plan of Correction.” CMS Ex. 2. Petitioner’s counsel explained:

Please be advised that certain third parties applied for and obtained provider privileges at a number of locations without my client’s knowledge or consent.

My client’s Plan of Correction to dissociate himself from all non-physician providers, cancel all fraudulent provider numbers, and to confer with Medicaid personnel in an effort to restore his provider number. I am taking the same steps with Medicare and am in the process of cancelling any and all fraudulently obtained provider numbers.

CMS Ex. 2.

In a reconsidered determination dated May 23, 2019, CMS’s Provider Enrollment & Oversight Group upheld Petitioner’s revocation based on 42 C.F.R. § 424.535(a)(12).

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CMS acknowledged receipt of Petitioner’s corrective action plan requests, and citing 42 C.F.R. § 405.809, explained that a corrective action plan “may only be submitted with respect to revocations implemented under § 424.535(a)(1).” CMS Ex. 6 at 2. CMS noted that “in reporting the termination to CMS[,] the California State Medicaid agency confirmed that Dr. Pogodin exhausted all applicable appeal rights.” CMS Ex. 6 at 3. CMS provided the following discussion in support for upholding Noridian’s revocation determination:

While Dr. Pogodin contends that his Medicaid termination is based on unauthorized provider numbers, he has not provided any documentation to confirm any of his contentions regarding this. Additionally, in his first submission, he seemed to take responsibility for the issues identified in the initial determination dated March 26, 2019 and references making a mistake. Yet, in [a] subsequent submission he introduces this claim of identity theft. Given, the lack of corroborating information and inaccuracies in his statements, CMS must rely on the information received from the California Medicaid program. The February 21, 2017 notice indicates that Dr. Pogodin’s Medicaid provider numbers were deactivated and he was removed from enrollment in the California Medicaid program . . . Additionally, the 60 day appeal period commenced from the date of the notice. As mentioned above, CMS has confirmed that Dr. Pogodin has exhausted his appeal rights. Therefore, as stated previously, CMS finds the revocation of Dr. Pogodin’s Medicare billing privileges is proper.

CMS Ex. 6 at 3.

Petitioner, through his counsel, timely requested an ALJ hearing on June 19, 2019. On June 27, 2019, the Civil Remedies Division acknowledged receipt of Petitioner’s request for hearing and issued a copy of my standing pre-hearing order (Pre-Hearing Order) that established deadlines and procedures for the submission of pre-hearing exchanges. CMS filed a pre-hearing exchange, to include a combined brief and motion for summary judgment, along with six exhibits (CMS Exs. 1-6). Petitioner filed a brief and opposition to CMS’s motion for summary judgment (P. Br.), without any supporting exhibits. In the absence of any objections, I admit CMS Exs. 1-6.

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Petitioner filed an “application” for a subpoena on August 27, 2019,2 that I denied in an order dated September 4, 2019 (September 4, 2019 Order), because Petitioner’s request did not satisfy the requirements for the issuance of a subpoena that are set forth in 42 C.F.R. § 498.58. While I need not regurgitate the contents of the September 4, 2019 Order in its entirety, some of the key bases for my rejection of Petitioner’s subpoena request are identified in the passage that follows below:

In seeking the aforementioned documents, Petitioner attempts to impermissibly collaterally challenge the state’s termination action. Here, CMS has revoked Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(12). In reviewing whether CMS has a legitimate basis to revoke under section 424.535(a)(12), I am authorized to decide only whether (1) Petitioner’s Medicaid billing privileges have been terminated or revoked by a State Medicaid Agency and (2) that action has become unappealable, or otherwise final, under state law. Douglas

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Bradley, M.D., DAB No. 2663 at 16 (2015). As stated by the Departmental Appeals Board in Bradley, “[n]othing in [the] regulations, or in the Medicare statute, even remotely suggests that they were intended [to] provide a forum to collaterally challenge adverse decisions by . . . non-federal regulatory bodies.” Id. Thus, whether the State Medicaid Agency’s action was correct under state law or consistent with due process is irrelevant to my analysis of the issues. Petitioner attempts to seek records for the sole purpose of collaterally attacking the state agency’s decision to terminate his participation, and such action is impermissible in these proceedings. Petitioner has not submitted any evidence that he did not receive the Medi-Cal decision when it was issued in February 2017 or that the decision was mailed to an invalid address. Nor has Petitioner submitted evidence showing that the Medi-Cal decision is not a final and unappealed determination; to the extent that Petitioner claims, without any evidentiary support, that he did not receive a copy of the February 21, 2017 decision until April 3, 2019 (see CMS Ex. 3 at 1), he has not alleged that he attempted to appeal that decision within 60 days of purportedly receiving notification of that decision on April 3, 2019. See Cal. Welf. & Inst. Code § 14043.65 (stating that an appeal of a termination must be filed “within 60 days of the date of notification of the department’s action”) (emphasis added).

September 4, 2019 Order (footnote omitted). I also addressed that although Petitioner claimed that a subpoena was necessary because “[t]he witness has declined to furnish the documents voluntarily,” Petitioner provided no explanation of the efforts he made to obtain these documents, to include the dates of any requests and the reason(s) given to deny these requests. September 4, 2019 Order at 3. I also pointed out that Petitioner had not shown how the documents requested are “reasonably necessary for the full presentation” of his case as set forth by 42 C.F.R. § 498.58(a), as evidenced by his request that I compel production of “[a]ny and all documents” pertaining to more than a half dozen entities without any explanation of why issuance of such a broad subpoena was necessary. September 4, 2019 Order at 3. Further, with respect to Petitioner’s apparent effort to challenge the DHCS termination of his Medi-Cal provider agreement, I noted that, for the sake of discussion, even if Petitioner first received a copy of the DHCS decision on April 3, 2019 (as he claimed in his April 13, 2019 correspondence) (CMS Ex. 3 at 1) and appealed following his purported actual date of receipt of that determination, he already should have received a decision on such an appeal. September 4, 2019 Order at 3 n.3 (“If Petitioner had submitted an appeal within 60 days of notification on April 3, 2019, then pursuant to section 14043.65 [of the California Welfare and Institutions

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Code], he should have received a decision on that appeal within 90 days.”) I directed Petitioner to immediately file notice if, in fact, he had a pending appeal with the DHCS and to inform me of the status of any such appeal. September 4, 2019 Order at 3 n.3. Petitioner did not file notice of any pending appeal of the February 21, 2017 DHCS decision. More significantly, Petitioner has not provided any evidence that DHCS mailed the February 21, 2017 notice to an incorrect or invalid address.

Neither party has submitted the written testimony of any witness. Pre-Hearing Order, §§ 12-14. Because a hearing is not necessary for the purpose of cross-examination of any witnesses, I consider the record to be closed and the matter ready for a decision on the merits.3

II. Issue

Whether CMS properly revoked Petitioner’s Medicare enrollment and billing privileges, effective April 25, 2019.

III. Jurisdiction

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

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

Petitioner is a physician and, therefore, he is a supplier for purposes of the Medicare program. See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of Supplier), 410.20(b)(1). CMS may revoke a supplier’s Medicare billing privileges for any of the reasons stated in 42 C.F.R. § 424.535. When CMS revokes a supplier’s Medicare billing privileges, CMS establishes a re-enrollment bar that lasts from one to three years. 42 C.F.R. § 424.535(c). Generally, a revocation becomes effective 30 days after CMS mails the initial determination revoking Medicare billing privileges. 42 C.F.R. § 424.535(g).

1. CMS had a legitimate basis under 42 C.F.R. § 424.535(a)(12) to revoke Petitioner’s Medicare enrollment and billing privileges because DHCS terminated Petitioner’s Medi-Cal participation agreement and that determination is final.

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On February 21, 2017, DHCS informed Petitioner that it was terminating his Medi-Cal provider agreement. CMS Ex. 5 at 2. The letter informed Petitioner that on November 17, 2016, the DHCS had given Petitioner 60 days to rectify discrepancies on his application and to provide documentation that he had remediated the discrepancies, and after he resubmitted his application, it determined that he had continued to fail to disclose required information. CMS Ex. 5 at 2. In terminating his provider agreement, DHCS, inter alia, stated that Petitioner “failed to disclose [his] ownership or control interest” in a number of health care providers. CMS Ex. 5 at 2.

CMS was authorized to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(12), which states that CMS may revoke a supplier’s billing privileges if:

(i) Medicaid billing privileges are terminated or revoked by a State Medicaid Agency.

(ii) Medicare may not revoke unless and until a provider or supplier has exhausted all applicable appeal rights.

Based on the evidence of record, I conclude that CMS properly revoked Petitioner’s Medicare billing privileges because his Medi-Cal billing privileges were terminated by the DHCS and Petitioner did not exercise his right to appeal the termination. Petitioner has not shown that CMS and its contractor were not authorized to revoke his Medicare enrollment based on 42 C.F.R. § 424.535(a)(12). Simply stated, DHCS terminated Petitioner’s Medicaid agreement, and Petitioner did not appeal that action; CMS was therefore authorized to revoke Petitioner’s Medicare enrollment and billing privileges. 42 C.F.R. § 424.535(a)(12); see CMS Ex. 6 at 3 (“Additionally, the 60 day appeal period commenced from the date of the notice. As mentioned above, CMS has confirmed that Dr. Pogodin has exhausted his appeal rights.”). I reiterate that the DHCS decision is final, and despite my September 4, 2019 invitation that Petitioner provide notice of any pending appeal of that decision, he has not submitted notice of a pending appeal. Further, to the extent that Petitioner argues he did not receive notice of that decision, he has not submitted any evidence that DHCS mailed the decision to an incorrect or invalid address, nor has he explained why he did not attempt to appeal that decision within 60 days of the date he purportedly received it on April 3, 2019. See CMS Ex. 3 at 1; see also Cal. Welf. & Inst. Code § 14043.65 (stating that an appeal of a termination must be filed “within 60 days of the date of notificationof the department’s action”). Absent any evidence that Petitioner has not exhausted his appeal rights, revocation pursuant to 42 C.F.R. § 424.535(a)(12) is appropriate based on the termination of Petitioner’s Medi-Cal provider agreement.

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Petitioner’s sole argument is that DCHS erred in terminating his Medicaid provider agreement because he was the victim of a “forgery and a counterfeit submittal.” P. Br. at 2. However, as previously discussed, Petitioner may not litigate the merits of his Medi-Cal termination in this forum. See Douglas Bradley, M.D., DAB No. 2663 at 16. And even if I were inclined to consider such an argument, I note that Petitioner has not submitted any evidence to support that Noridian erred in revoking his Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(12). See, e.g., Pre-Hearing Order §§ 8 (directing parties to submit supporting evidentiary exhibits); 12 (instructing parties of the right to submit sworn written direct testimony).

Finally, Petitioner incorrectly argues in his late-filed September 19, 2019 brief that he “has filed with DAB [Departmental Appeals Board] a request for the issuance for a subpoena to obtain MediCal’s provider records on Respondent, but the DAB has not acted on this discovery request.” Petitioner disregards that I denied his request on September 4, 2019. Petitioner has not submitted another subpoena request.

2. CMS properly established April 25, 2019, as the effective date for the revocation of Petitioner’s Medicare enrollment and billing privileges.

Petitioner has not argued that Noridian erred when it assigned an April 25, 2019 effective date for the revocation of Petitioner’s Medicare enrollment and billing privileges, which is 30 days following the date listed on the revocation determination. CMS Ex. 4 at 1. Under the regulations, and as relevant here, a “[r]evocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the . . . supplier . . . .” 42 C.F.R. § 424.535(g). The effective date of Petitioner’s revocation, April 25, 2019, is 30 days after the date CMS’s administrative contractor issued its March 26, 2019 initial determination. As such, CMS properly assigned the effective date of revocation.

3. The two-year length of the re-enrollment bar is not reviewable.

The DAB has explained that “CMS’s determination regarding the duration of the re-enrollment bar is not reviewable.” Vijendra Dave, M.D., DAB No. 2672 at 11 (2016). The DAB explained that “the only CMS actions subject to appeal under Part 498 are the types of initial determinations specified in section 498.3(b).” Id. The DAB further explained that “[t]he determinations specified in section 498.3(b) do not, under any reasonable interpretation of that regulation’s text, include CMS decisions regarding the severity of the basis for revocation or the duration of a revoked supplier’s re-enrollment bar.” Id. The DAB discussed that a review of the rulemaking history showed that CMS did not intend to “permit administrative appeals of the length of a re-enrollment bar.” Id. I have no authority to review this issue, and I do not disturb the two-year re-enrollment bar.

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V. Conclusion

I affirm CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges, effective April 25, 2019.

1. “Medi-Cal is California’s Medicaid program.” Medi-Cal, California Department of Health Care Services, https://www.dhcs.ca.gov/services/medi-cal/Pages/default.aspx (last visited January 17, 2019).
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2. Petitioner, through his counsel, included a template subpoena issuance form for my signature that instructed that the purpose of the form was to “establish, modify, or enforce a child support order” in an interstate child support enforcement case. Other actions by counsel do not reflect positively on his competence and professionalism in this matter. For example, despite an explicit order that Petitioner register for the DAB E-File system and request access to the case (Pre-Hearing Order § 3 (“A registered DAB E-File user who does not already have access to this case must request case access within ten (10) days of the date of the notice accompanying this order.”), I issued an order to show cause on July 30, 2019, based in part, on Petitioner’s failure to comply with this requirement. In response, Petitioner falsely professed compliance dating back to May 31, 2019, even though he could not have requested access to this case prior to the filing of the request for hearing on June 19, 2019. See August 22, 2019 docket entry # 12a (reflecting that Petitioner first requested, and received, DAB E-File access to this case on August 8, 2019); Civil Remedies Division Procedures § 6(a)(viii)(2) (“Request access to the case. If your case does not appear in the search result under “Manage Existing Appeals,” you must request access to the case.”). Further, Petitioner falsely claims in his brief that CMS did not serve its brief, which was filed via DAB E-File, on Petitioner; however, this statement demonstrates Petitioner’s unfamiliarity with both my Pre-Hearing Order and established filing procedures. See Pre-Hearing Order § 3 (“The parties must file documents electronically in this case . . . .”); Civil Remedies Division Procedures § 6(a)(i) (“All parties must use DAB E-File to file all of its submissions with CRD and the ALJ.”) (emphasis in original). And despite the fact that I informed Petitioner on September 4, 2019, that he had failed to timely file his pre-hearing exchange, he nonetheless did not file a pre-hearing exchange until after I issued a second order to show cause on September 9, 2019.
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3. As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS’s motion for summary judgment.
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4. My findings of fact and conclusions of law are set forth in italics and bold font.
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