Daljit Singh, M.D., DAB CR5653 (2020)

DECISION

Petitioner, Daljit Singh, M.D., is a Pennsylvania physician who participated in the Medicare program until August 1, 2017, when the Centers for Medicare & Medicaid Services (CMS) revoked his enrollment, citing 42 C.F.R. §§ 424.535(a)(1) and 424.535(a)(9).  CMS took this action because the Pennsylvania licensing agency suspended Petitioner's medical license and because he did not report the suspension to the Medicare contractor.

Petitioner now appeals the revocation.

I find that, pursuant to 42 C.F.R. §§ 424.535(a)(1) and 424.535(a)(9), CMS appropriately revoked Petitioner Singh's Medicare enrollment because he did not comply with the Medicare requirement that he be licensed and because he did not notify the contractor that his medical license had been suspended.

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Background

In a revocation notice, dated September 14, 2017, the Medicare contractor, Novitas Solutions, advised Petitioner Singh that it revoked his Medicare enrollment, effective August 1, 2017.  The contractor also imposed a one-year reenrollment bar.  As the notice letter explains, the contractor acted pursuant to 42 C.F.R. § 424.535(a)(1) because Petitioner did not comply with the Medicare requirement that he be properly licensed.  The contractor also acted pursuant to 42 C.F.R. § 424.535(a)(9) because Petitioner did not report the license suspension.  CMS Ex. 3.

Petitioner requested reconsideration.  CMS Exs. 2, 4.  In a reconsidered determination, dated November 22, 2017, a contractor hearing specialist affirmed the revocation, noting that Petitioner's medical license was suspended and that he did not report that event as required.  CMS Ex. 7.

Petitioner again appealed.

Petitioner's discovery request.  Petitioner asked leave to depose an unidentified contractor representative, arguing that he required the deposition testimony in order to establish that the contractor might have known about his license suspension "either through publically accessible licensing databases or some other reporting vehicle."  Petitioner's Motion for Leave to Conduct Discovery at 1 ¶ 2.  CMS opposed, pointing out that, except for subpoenas (which may be issued under limited circumstances), the regulations governing these proceedings (42 C.F.R. Part 498) do not allow for discovery.  In any event, CMS argued, the information Petitioner sought was of no legal consequence; the supplier must report that his license has been suspended, even assuming that the contractor (or CMS) could (or did) learn of it through other means.

CMS's position is correct.  The regulations governing these proceedings do not provide "for the sort of freewheeling discovery mechanisms available in some court proceedings."  Ridgeview Hosp., DAB Ruling No. 2015-1 at 4 (2015); Michael Turano, M.D., DAB No. 2922 at 14 (2019); Oaks of Mid-City Nursing & Rehab. Ctr., DAB No. 2375 at 32 n.16 (2011).  The only discovery vehicle available is the subpoena, but only if the party shows that its issuance is "reasonably necessary for the full presentation of a case."  The request must:  identify the witness to be produced; describe "with sufficient particularity" the witness's address or location; specify the pertinent facts the party expects to establish by means of the witness testimony; and indicate why those facts could not be established without use of a subpoena.  42 C.F.R. § 498.58; Turano, DAB No. 2922 at 15.  Even if Petitioner had sought to subpoena a contractor employee, rather than to depose him/her, his request meets none of these regulatory criteria.  Moreover, as discussed below, the information Petitioner seeks through discovery is irrelevant.

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Summary judgment.  Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed each party to submit the written direct testimony of any proposed witnesses and, if it wished to cross-examine an opposing witness, to state so affirmatively.  Acknowledgment and Pre-hearing Order at 5 (¶¶ 8, 9) (January 19, 2018).  CMS listed no witnesses.  Petitioner listed one witness, himself, and provided his written direct testimony (P. Ex. 1).  However, CMS has not asked to cross-examine Petitioner; an in-person hearing would therefore serve no purpose, and I may decide this case based on the written record.  See Pre-hearing Order at 5 (¶ 10).

CMS has filed a prehearing brief and motion for summary judgment (CMS Br.), with eight exhibits (CMS Exs. 1-8).  Petitioner filed his own pre-hearing brief and response to CMS's motion (P. Br.), with 11 exhibits (P. Exs. 1-11).  In the absence of any objections, I admit into evidence CMS Exs. 1-8 and P. Exs. 1-11.

Discussion

Because Petitioner Singh had no license to practice, and he failed to report that he had no license, CMS properly revoked his Medicare enrollment.  42 C.F.R. § 424.535(a)(1) and 42 C.F.R. § 424.535(a)(9).1

CMS regulates the Medicare enrollment of providers and suppliers.  Social Security Act (Act) § 1866(j)(1)(A).  It may revoke a supplier's enrollment in the program if the supplier no longer meets the Medicare enrollment requirements for a supplier of its type.  42 C.F.R. § 424.535(a)(1).  These requirements include complying with federal and state licensing requirements.  42 C.F.R. § 424.516(a)(2); see 42 C.F.R. § 410.20(b) (requiring that a physician be legally authorized to practice by the state in which he functions in order to receive Medicare payments).

Regulations also allow CMS to revoke a supplier's enrollment if he does not comply with reporting requirements, including that he report any adverse legal action or change in enrollment.  42 C.F.R. § 424.535(a)(9); 42 C.F.R. § 424.516(d).

Here, the parties agree that, effective August 1, 2017, the Pennsylvania State Board of Medicine suspended Petitioner's license to practice medicine in the State of Pennsylvania.  CMS Ex. 1; P. Exs. 2, 3.  Petitioner dismisses the underlying merits of the suspension, citing the actions of "an overzealous investigator and prosecutor," and his own desire to avoid additional professional and personal embarrassment.  P. Br. at 2-3; P. Ex. 1 at 1-2 (Singh Decl. ¶¶ 4, 5).  He also points out that, by order dated November 3, 2017, the State Board of Medicine reinstated his license.  CMS Ex. 6 at 10.

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The reasons underlying Petitioner's license suspension are irrelevant.  Without a medical license, Petitioner had no legal authority to practice medicine.  He no longer met Medicare requirements, and CMS properly revoked his enrollment.  Angela R. Styles, M.D., DAB No. 2882 at 6 (2018).  Nor does it matter that his license was eventually reinstated.  The suspension triggers noncompliance with Medicare enrollment requirements, regardless of when the license is reinstated.  Styles, DAB No. 2882 at 6-7; Meindert Niemeyer, M.D., DAB No. 2865 (2018); Akram A. Ismail, M.D., DAB No. 2429 at 8 (2011).

That Petitioner did not report the license suspension provides CMS an alternative justification for revoking his Medicare enrollment.  42 C.F.R. § 424.535(a)(9); Styles, DAB No. 2882 at 9.  Petitioner, however, points out that, under the terms of his agreement with the state licensing authority, the suspension was reported to "other licensing authorities and any applicable national licensing databank."  P. Br. at 3; P. Ex. 2 at 9, ¶ 5(h).  He therefore "knew" that someone would report the suspension to CMS.  P. Ex. 1 at 3 (Singh Decl. ¶ 9).

No doubt most license suspensions are widely reported, as are all manner of adverse legal actions.  This does not relieve the supplier of his obligation to report.  The Departmental Appeals Board long ago rejected the notion that a supplier physician was not obligated to report his license suspension because state law required that the licensing agency do so.  "The regulations . . . put an obligation to timely report the adverse legal action on [the supplier].  [The supplier] could not reasonably think that notice from the state would satisfy [his] own and independent obligation to report."  Gulf S. Med. & Surgical Inst., DAB No. 2400 at 9-10 (2011).

Conclusion

I affirm CMS's determination.  CMS may revoke Petitioner Singh's Medicare enrollment because his medical license was suspended and because he did not report the license suspension to the Medicare contractor.  42 C.F.R. §§ 424.535(a)(1) and (9).

1. I make this one finding of fact/conclusion of law.
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