Ara Keshishian, M.D. and Ara A. Keshishian A Professional Medical Corporation, DAB CR6235 (2023)

DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke the enrollment of Ara A. Keshishian, M.D. (Dr. Keshishian) and his medical practice, Ara A. Keshishian A Professional Medical Corporation (Keshishian PC), (collectively, Petitioners) in the Medicare program as suppliers.  I also affirm CMS’s determination to add Petitioners’ names to CMS’s preclusion list. 

I.  Background and Procedural History

Dr. Keshishian is a bariatric surgeon who enrolled himself and his medical practice in the Medicare program as suppliers.  See CMS Ex. 18 at 1; CMS Ex. 19 at 1.  In a February 15, 2022 notice of initial determination, a Medicare contractor revoked Dr. Keshishian’s enrollment in the Medicare program, effective March 17, 2022, for the following reasons:

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42 CFR § 424.535(a)(4) – False or Misleading Information

On your Centers for Medicare & Medicaid Services (CMS) 855 enrollment application, signed on January 27, 2020, you answered “no” in section three of the application, indicating that you did not have any adverse legal history.  However, the Hawaii Board of Medicine revoked your medical license effective December 8, 2016.  A license revocation is listed [as] an adverse legal action that requires reporting on the 855I application.

42 CFR § 424.535(a)(9) – Failure to Report

The Hawaii Board of Medicine revoked your medical license effective December 8, 2016.  You did not notify the Centers for Medicare & Medicaid Services of this adverse legal action within 30 calendar days as required under 42 CFR § 424.516(d)(1).

CMS Ex. 23 at 2.  The Medicare contractor also barred Petitioner from reenrolling in the Medicare program for one year, effective 30 days from the date of the initial determination.  CMS Ex. 23 at 4.  Further, the Medicare contractor said it would add Petitioner’s name to CMS’s preclusion list, with an effective date to be determined based on whether Petitioner submitted a reconsideration request.  CMS Ex. 23 at 2-3. 

In a March 1, 2022 notice of initial determination, the Medicare contractor revoked Keshishian PC’s Medicare enrollment for the same reasons as stated in Dr. Keshishian’s notice of initial determination (i.e., 42 C.F.R. § 424.535(a)(4) (false or misleading information on an enrollment application) and 42 C.F.R. § 424.535(a)(9) (failure to report an adverse legal action)).  CMS Ex. 3 at 1.  The Medicare contractor also barred Keshishian PC from reenrolling in the Medicare program for one year and indicated that it would add Keshishian PC to CMS’s preclusion list.  CMS Ex. 3 at 1-3. 

On March 28, 2022, and April 12, 2022, Keshishian PC and Dr. Keshishian, respectively, requested reconsideration of the initial determinations.  CMS Ex. 1 at 1; CMS Ex. 20 at 1.  Petitioners did not dispute that Dr. Keshishian, the sole owner of Keshishian PC, failed to properly complete the CMS-855 enrollment applications that he submitted.  CMS Ex. 1 at 2; CMS Ex. 20 at 1.  However, in both reconsideration requests, Petitioners requested that CMS use its discretionary authority to grant Petitioners requests for reconsideration for the following enumerated reasons:  (1) Petitioners have taken responsibility for their actions; (2) Petitioners have taken efforts to remediate the issue; (3) Petitioners have demonstrated they are not at risk for engaging in any conduct that would be detrimental

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to the Medicare program; (4) the Office of the Inspector General (OIG) for the United States Department of Health and Human Services was informed of Dr. Keshishian’s medical license revocation; (5) the medical license revocation was not due to patient care, safety issues, or fraud or criminal activity; and (6) revoking Petitioners’ Medicare privileges would be detrimental to the health and safety of Medicare beneficiaries.  CMS Ex. 1 at 2; CMS Ex. 20 at 2.  Petitioners further explained that Dr. Keshishian did not intentionally withhold information regarding the revocation of his Hawaii medical license and believed that CMS was aware of it due to correspondence with OIG.  CMS Ex. 1 at 3; CMS Ex. 20 at 3. 

On July 6, 2022, a CMS hearing officer issued unfavorable reconsidered determinations upholding the revocations and finding that Petitioners’ names were appropriately added to CMS’s preclusion list.  CMS Ex. 18; CMS Ex. 19. 

Petitioners each timely requested a hearing to dispute CMS’s reconsidered determinations.  The Civil Remedies Division (CRD) docketed Dr. Keshishian’s request under docket number C-22-753 and Keshishian PC’s request under docket number C-22-754.  On September 1, 2022, I consolidated these cases under C-22-754 and dismissed C-22-753.  CRD also issued my Standing Prehearing Order (SPO). 

In compliance with the SPO, on October 6, 2022, CMS filed a prehearing brief/motion for summary judgment (CMS Br.) and 32 proposed exhibits (CMS Ex. 1-32).  On November 2, 2022, Petitioners filed a prehearing brief (P. Br.) and an exhibit list that incorporated by reference all of CMS’s proposed exhibits. 

II.  Admission of Evidence

Petitioners did not object to any of CMS’s proposed exhibits and incorporated all of CMS’s exhibits by reference into Petitioners’ exhibit list.  Therefore, I admit CMS Exhibits 1 through 32 into the record, without objection. 

III.  Decision on the Record

The SPO advised the parties that an in-person hearing would only be necessary if a party submitted the written direct testimony from at least one witness and the opposing party requested to cross-examine at least one witness.  SPO ¶¶ 11-13; CRD Procedures §§ 16(b), 19(b); see Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (upholding the use of written direct testimony for witnesses so long as the opposing party has the opportunity to cross-examine those witnesses).  Neither CMS nor Petitioners submitted written direct testimony for any witnesses in this case.¹

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Therefore, I issue this decision based on the written record.  SPO ¶ 14; CRDP § 19(d).  As a result, CMS’s summary judgment motion is moot. 

IV.  Issues

1. Whether CMS had a legitimate basis to revoke Petitioners’ Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(4) and/or (a)(9). 
2. Whether CMS had a legitimate basis to place Petitioners’ names on CMS’s preclusion list.  42 C.F.R. §§ 422.2 and 423.100. 

V.  Jurisdiction

I have jurisdiction to decide the issues in this case.  42 C.F.R. §§ 498.3(b)(17), (20), 498.5(l)(2), (n)(2); see also 42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 424.545(a), 498.1(g).  

VI.  Finding of Fact, Conclusions of Law, and Analysis

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to establish regulations governing the enrollment of providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j).  Dr. Keshishian is a physician, while Keshishian PC is Dr. Keshishian’s medical practice.  Both Petitioners are “suppliers” for Medicare program purposes.  42 U.S.C. § 1395x(d) (defining “supplier” to include physicians and other entities that are not considered to be a “provider of services”); 42 C.F.R. §§ 400.202 (definition of “Supplier”), 424.502 (definition of “Physician or nonphysician practitioner organization”). 

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services provided to beneficiaries.  42 C.F.R. § 424.505.  To enroll, a supplier must complete and file an enrollment application with CMS and meet all of the requirements to be a supplier.  42 C.F.R. §§ 424.510, 424.530. 

Once enrolled, CMS may revoke a supplier’s enrollment for any of the reasons stated in 42 C.F.R. § 424.535(a).  When CMS revokes enrollment, it will establish a reenrollment bar from one to ten years in duration.  42 C.F.R. § 424.535(c).  If CMS revokes a supplier’s enrollment and establishes a reenrollment bar, CMS may also add the supplier

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to CMS’s preclusion list if CMS determines that the basis for revocation is detrimental to the best interests of the Medicare program.  42 C.F.R. §§ 422.2, 423.100.

A supplier may request a hearing before an administrative law judge to dispute a revocation or being added to CMS’s preclusion list.  42 C.F.R. §§ 498.3(b)(17), (20), 498.5(l)(2), (n)(2).  However, “the right to review of CMS’s determination by an [administrative law judge] serves to determine whether CMS has the authority to revoke [the supplier’s] Medicare billing privileges, not to substitute the [administrative law judge’s] discretion about whether to revoke.”  Letantia Bussell, DAB No. 2196, at 13 (2008) (emphasis omitted).  A supplier may request administrative review of an administrative law judge’s decision concerning revocation or being added to CMS’s preclusion list.  42 C.F.R. § 498.5(l)(3), (n)(3). 

1. On December 8, 2016, the Hawaii Medical Board issued a Final Order revoking Dr. Keshishian’s medical license. 

Dr. Keshishian was licensed to practice medicine in the state of California.  On May 30, 2013, the Medical Board of California charged Dr. Keshishian with Gross Negligence, Repeated Negligent Acts, Failure to Maintain Adequate/Accurate Medical Records, and General Unprofessional Conduct related to the death of a 48-year-old patient.  CMS Ex. 9 at 19-24; CMS Ex. 29 at 19-24.  The charges included the following facts: 

[Petitioner] performed laparoscopic hernia repair surgery on or about February 17, 2010 at Verdugo Hills Hospital in Glendale.  The patient [T.F.] was subsequently discharged. 

However, on or about February 18, 2010, T.F.’s wife called [Petitioner’s] office and complained that her husband was very tired and not doing well.  While [Petitioner] saw T.F. in his Delano office, no vital signs were taken.  [Petitioner] believed that patient was dehydrated, administered 1.5 liters of IV fluids to the patient, and sent him home with follow up in a week. 

However, on or about February 19, 2010, T.F.’s wife called [Petitioner] again because the patient was very weak.  Because [Petitioner] was in Glendale, he arranged for a direct admission to Delano Hospital which was closer to the patient’s home.  There was no admitting history and physical, but the admitting office notes recorded the chief complaint as pain, weakness, fell, not eating or drinking.  The notes at Delano Hospital record T.F.’s blood pressure as 69/46 with a written comment about the difficulty getting a blood pressure

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at all.  Admission laboratory studies included white blood cell count of 1.8, with a normal hemoglobin/hematocrit of 14.7/42.5, and creatinine was 4.8.  Several notes indicate that [Petitioner] was informed about the patient’s deteriorating condition throughout the afternoon and evening, including the patient’s persistent hypotension, tachycardia, and that the patient was cold and clammy with no urine output.  The notes also state [Petitioner] was called by the nursing supervisor and informed that the nurses recommended transfer to the ICU, but [Petitioner] said “no he’s just dehydrated.”  [Petitioner] had numerous phone contacts with the nurses throughout the afternoon and evening and gave numerous phone orders such as Levophed, Amiodarone, Digoxin and even heparin for suspected pulmonary embolism.  Late evening the patient was noted to be lethargic.  Ultimately, the patient was transferred to the ICU. 

On or about February 19, 2010, in the evening, the emergency physician, Dr. S., noted T.F.’s hypotension, tachycardia, blood pressure, and other aspects of critical illness, and called [Petitioner].  Dr. S. documented that he spoke with [Petitioner], and “he is already aware of the clinical picture, and does not require my assistance at this time.”  [Petitioner] never saw the patient at Delano Hospital, and failed to transfer the care of T.F. to another doctor.  On or about February 19, 2010 (late in the evening/early morning hours of February 20, 2010), [Petitioner] drove from Glendale and went to his house in Delano.  [Petitioner] was in the process of moving his personal furniture and belongings from Delano to Glendale that weekend, and he did not intend to work that weekend.  T.F.’s family requested to transfer T.F. to another hospital around midnight.  [Petitioner] was notified that the patient was going to San Joaquin Hospital in Bakersfield.  The transfer occurred in the early hours on or about February 20, 2010. 

[Petitioner] was called on or about February 20, 2010 and asked whether he was going to see the patient at San Joaquin Hospital.  [Petitioner] was not sure if he had privileges at San Joaquin.  Eventually, he saw T.F. at San Joaquin Hospital, by which time he felt T.F. was too unstable to undergo either a CT scan or an operation for sepsis.  The patient expired on or about February 21, 2010.

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CMS Ex. 9 at 21-23; CMS Ex. 29 at 21-23 (footnotes omitted). 

On April 21, 2014, Dr. Keshishian signed a Stipulated Settlement and Disciplinary Order in which he admitted to the truth of all the charges against him and agreed to a stayed revocation of his medical license with three years of probation.  CMS Ex. 9 at 8-18; CMS Ex. 29 at 8-18.  On June 11, 2014, the Medical Board of California issued a Decision adopting the Stipulated Settlement and Disciplinary Order.  CMS Ex. 9 at 7; CMS Ex. 29 at 7. 

On February 14, 2013, Dr. Keshishian obtained a license to practice medicine in the state of Hawaii.  CMS Exs. 10, 31.  On July 28, 2016, the Hawaii Department of Commerce filed a petition with the Hawaii Medical Board seeking to discipline Dr. Keshishian.  Although the petition was served on Dr. Keshishian, Dr. Keshishian did not enter an appearance in the Hawaii disciplinary case.  A hearings officer conducted a hearing and issued a document entitled Findings of Fact, Conclusions of Law, and Recommended Order.  The hearings officer found that Dr. Keshishian’s California medical license became subject to three years of probation on July 11, 2014.  CMS Ex. 9 at 3-4; CMS Ex. 29 at 3-4.  The hearings officer also found that Dr. Keshishian entered into a Consent Order and Stipulation with the Michigan Board of Medicine and a Settlement Agreement with the Nevada Board of Medical Examiners.  CMS Ex. 9 at 4; CMS Ex. 29 at 4.  Finally, the hearings officer found that Dr. Keshishian failed to report the California, Nevada, and Michigan disciplinary orders to the Hawaii Medical Board within 30 days of their occurrence.  CMS Ex. 9 at 4; CMS Ex. 29 at 4. 

Based on the factual findings, the hearings officer concluded that a preponderance of the evidence supported the conclusion that Dr. Keshishian had violated the following sections of the Hawaii Revised Statutes (HRS): 

• HRS § 453-8(a)(7) (professional misconduct, hazardous negligence causing bodily injury to another, or manifest incapacity in the practice of medicine or surgery);
• HRS § 453-8(a)(8) (incompetence or multiple instances of negligence);  
• HRS § 453-8(a)(11) (revocation, suspension, or other disciplinary action by another state or federal agency of a license, certificate, or medical privilege for reasons provided in this section);  
• HRS § 453-8(a)(14) (failure to report to the Hawaii Medical Board, in writing, of any disciplinary decision issued against the licensee or applicant in another jurisdiction within 30 days after the disciplinary decision is issued), and
• HRS § 43B-19(17) (violation of any licensing law).

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CMS Ex. 9 at 5-6; CMS Ex. 29 at 5-6.

On December 8, 2016, the Hawaii Medical Board issued a Final Order accepting the hearings officer’s findings, conclusions, and recommendations, and revoked Dr. Keshishian’s medical license.  CMS Ex. 9 at 1; CMS Ex. 29 at 1.  

2. Dr. Keshishian did not inform CMS or a Medicare contractor of the revocation of his Hawaii medical license within 30 days of the issuance of the Hawaii Medical Board’s December 8, 2016 Final Order.

The record is devoid of evidence that Petitioners informed or attempted to inform CMS or a Medicare contractor of the Hawaii Medical Board’s December 8, 2016 Final Order to revoke Dr. Keshishian’s medical license.  Further, Petitioners have not affirmatively asserted that they informed CMS or a Medicare contractor of the Hawaii Medical Board’s December 8, 2016 Final Order.  P. Br. at 7, 10.  Rather, Petitioners assert that, in February 2017, OIG corresponded with Petitioners concerning the revocation.  P. Br. at 10.  In Dr. Keshishian’s declaration, Dr. Keshishian did not indicate that he informed, or even tried to inform, CMS or a Medicare contractor, of the license revocation within 30 days of the December 8, 2016 Final Order.  Instead, in the declaration, Dr. Keshishian indicated that he informed OIG of the Hawaii Medical Board’s Final Order in March 2017.  CMS Ex. 21 ¶ 4. 

In sum, the record shows that there is undisputed evidence that Dr. Keshishian’s Hawaii medical license was revoked on December 8, 2016; however, there is no evidence that Dr. Keshishian timely informed CMS or a Medicare contractor of this event. 

Therefore, I find Petitioners did not inform CMS or a Medicare contractor, within 30 days of the December 8, 2016 Final Order, that Dr. Keshishian’s Hawaii medical license was revoked. 

3. Dr. Keshishian certified on five Medicare enrollment applications, filed with a Medicare contractor in 2018, 2020, 2021, and 2022, that he had not been subject to a final adverse legal action.

After the Hawaii Medical Board issued the December 8, 2016 Final Order and revoked Dr. Keshishian’s medical license, Dr. Keshishian electronically signed and submitted several CMS-855 enrollment applications with a Medicare contractor on behalf of himself and his practice. 

Dr. Keshishian submitted enrollment applications on behalf of his practice on June 27, 2018, January 27, 2020, June 18, 2021, and February 12, 2022.  CMS Exs. 11-14.  Dr. Keshishian submitted the 2018 and 2021 enrollment applications for the purpose of changing “general Medicare enrollment information.”  CMS Ex. 11 at 1; CMS Ex. 13 at 1.  Dr. Keshishian filed the 2020 and 2022 enrollment applications for the purpose of

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“revalidating Medicare enrollment information.”  CMS Ex. 12 at 1; CMS Ex. 14 at 1.  Dr. Keshishian electronically signed each of the enrollment applications.  CMS Ex. 11 at 1; CMS Ex. 12 at 1; CMS Ex. 13 at 1; CMS Ex. 14 at 1.  On each of the enrollment applications, Dr. Keshishian identified himself as an owner, managing employee, and authorized official for his practice.  CMS Ex. 11 at 4-5; CMS Ex. 12 at 4-5; CMS Ex. 13 at 6; CMS Ex. 15 at 4-5.  On each enrollment application, Dr. Keshishian answered “NO” to the enrollment applications’ question:  “Has this individual [i.e., Dr. Keshishian], under any current or former name or business entity, ever had a final adverse legal action imposed against him/her?”  CMS Ex. 11 at 5; CMS Ex. 13 at 6; CMS Ex. 14 at 5. 

Further, on January 27, 2020, Dr. Keshishian submitted a CMS-855 enrollment application on his own behalf for the purpose of “revalidating Medicare enrollment information.”  CMS Ex. 30 at 1.  Dr. Keshishian answered “NO” to the enrollment application’s question:  “Has a final adverse legal action ever been imposed against an applicant under any current or former name or business entity?”  CMS Ex. 30 at 4. 

4. CMS had a legitimate basis to revoke Petitioners’ enrollment and billing privileges in the Medicare program under 42 C.F.R § 424.535(a)(9) because Petitioners failed to report, within 30 days, an adverse legal action to the relevant Medicare contractor.

CMS may revoke the enrollment of providers and suppliers in the Medicare program if they fail to comply with the information reporting requirements for their provider or supplier type.  42 C.F.R § 424.535(a)(9).  For physicians and physician practices, the reporting standards set forth below apply: 

Physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations must report the following reportable events to their Medicare contractor within the specified timeframes: 

(1) Within 30 days -
(i) A change of ownership;
(ii) Any adverse legal action; or,
(iii) A change in practice location.
(2) All other changes in enrollment must be reported within 90 days.

42 C.F.R § 424.615(d) (emphasis added).

The regulations define the term “final adverse action” to include the “[s]uspension or revocation of a license to provide health care by any State licensing authority.”  42 C.F.R. § 424.502.  Although the term “any adverse legal action” in § 424.516(d)(1)(ii) is

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different than “final adverse action,” prior case decisions indicate that “any adverse legal action” is broader than “final adverse action,” and includes the matters listed in the definition of “final adverse action.”  Akram A. Ismail, M.D., DAB No. 2429 at 10-11 (2011) (the term adverse legal action “should be read according to its plain language to require the reporting of a license suspension.”). 

In the present case, the Hawaii Medical Board’s Final Order revoking Dr. Keshishian’s medical license was a “final adverse legal action.”  Therefore, it was also an “adverse legal action” that had to be reported to a Medicare contractor.  Further, although Dr. Keshishian’s practice was not directly subject to an adverse legal action, the practice was nevertheless required to report the revocation of Dr. Keshishian’s medical license to the relevant Medicare contractor within 30 days.  Gulf South Medical & Surgical Institute, DAB No. 2400 at 7-8 (2011) (“[S]ection 424.516(d)(1)(ii) required Petitioner to report as an adverse legal action the license revocation of Dr. Farber, its physician owner.”). 

Petitioners argue that Dr. Keshishian disclosed his license revocation to OIG in March 2017, after OIG contacted Dr. Keshishian about his license revocation.  P. Br. at 10.  Petitioners contend that it was reasonable to presume that, when Dr. Keshishian disclosed his revocation to the OIG, CMS would be notified of the report because OIG has oversight authority over the Medicare program.  P. Br. at 11. 

Petitioners’ argument fails both factually and legally. 

At its most basic, Petitioners were obligated to report the revocation to the Medicare contractor that oversees Petitioners’ enrollment within 30 days of the adverse legal action.  There is no evidence that Petitioner did that within 30 days of the Hawaii Board of Medicine’s Final Order of revocation.  Therefore, CMS had a legitimate basis to revoke Petitioners’ Medicare enrollment based on 42 C.F.R § 424.615(d). 

Further, Petitioners’ assertion that Dr. Keshishian reported the Hawaii revocation to OIG is irrelevant because OIG is not the Medicare contractor that handles Petitioners’ enrollment matters.  Therefore, Dr. Keshishian’s correspondence with OIG is legally insufficient to show compliance with 42 C.F.R § 424.615(d). 

Finally, even if reporting the Hawaii license revocation to OIG could satisfy the reporting requirement in 42 C.F.R § 424.615(d), Petitioners neither reported the revocation to OIG nor communicated with OIG within 30 days of the December 8, 2016 Final Order.  It was not until February 2, 2017, that OIG contacted Dr. Keshishian about the revocation of his medical license in Hawaii.  CMS Ex. 6.  And it was not until March 1, 2017, that Dr. Keshishian responded to the OIG’s inquiry.  CMS Ex. 7.  Thus, the time between December 8, 2016, and March 1, 2017, is beyond the 30-day reporting period.

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Regarding Petitioners attempt to impute OIG’s knowledge about the Hawaii license revocation to CMS, I find it unreasonable to assume that responding to a letter from OIG concerning a potential exclusion from participation in all federal health care programs would automatically result in OIG forwarding that information to a Medicare contractor.  Exclusions and revocations are completely separate actions by different components of the Department of Health and Human Services.  See Ahmed v. Sebelius, 710 F. Supp. 2d 167, 175 (D. Mass. 2010)).  In addition, none of the three letters that passed between Petitioners and OIG indicate that either party expected or intended for OIG to report the Hawaii license revocation to Petitioners’ servicing Medicare contractor.  See CMS Exs. 6-8.  Therefore, there is no support in the record that Petitioners had cause to believe that OIG would inform the Medicare contractor of the revocation. 

Section 424.535(a)(9) states that: 

In determining whether a revocation under this paragraph
(a)(9) is appropriate, CMS considers the following factors:  
(i) Whether the data in question was reported.
(ii) If the data was reported, how belatedly.
(iii) The materiality of the data in question.
(iv) Any other information that CMS deems relevant to its determination.

Based on a review of the reconsidered determinations in this case, the CMS hearing officer fully evaluated these criteria to uphold the revocations in this case.  Regarding the first two criteria, the CMS hearing officer correctly found that Petitioners “did not report the revocation of Dr. Keshishian’s Hawaii medical license, timely or at all.”  CMS Ex. 18 at 6; CMS Ex. 19 at 6.  For the third criteria, the CMS hearing officer considered Dr. Keshishian’s revocation to be material information because it bears on the question as to whether Petitioners continued to meet the requirements to be suppliers in the Medicare program.  “Inaccurate or outdated information puts the Medicare Trust Funds at risk.”  CMS Ex. 18 at 6; CMS Ex. 19 at 6.  In considering the fourth factor from the regulations, the CMS hearing officer believed that Petitioners’ failure to comply with the program requirement to report the Hawaii revocation is problematic because the Medicare program relies on providers and suppliers to comply with all program requirements.  However, this case shows that Petitioners could not be relied on to do so.  CMS Ex. 18 at 6; CMS Ex. 19 at 6.  These articulated factors are supported by the record and were sufficient support for the revocation of Petitioners’ Medicare enrollment. 

5. CMS had a legitimate basis to revoke Petitioners’ enrollment and billing privileges in the Medicare program under 42 C.F.R. § 424.535(a)(4) because Dr. Keshishian certified, on five Medicare enrollment applications, that false information was true.

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CMS may revoke Medicare enrollment if:

The provider or supplier certified as “true” misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program. (Offenders may be subject to either fines or imprisonment, or both, in accordance with current law and regulations.)

42 C.F.R § 424.535(a)(4). 

As explained above, the record establishes that on Medicare enrollment applications for Keshishian PC dated June 27, 2018, January 27, 2020, June 18, 2021, and February 12, 2022, Dr. Keshishian answered “No” to the enrollment application’s question:  “Has this individual, under any current or former name or business entity, ever had a final adverse legal action imposed against him/her?”  CMS Ex. 11 at 5; CMS Ex. 12 at 5; CMS Ex. 13 at 6, CMS Ex. 14 at 5.  On these enrollment applications, Dr. Keshishian identified himself as an owner, managing employee and authorized official for Keshishian PC.  CMS Ex. 11 at 4-5; CMS Ex. 12 at 4-5; CMS Ex. 13 at 6; CMS Ex. 14 at 4-5.  Similarly, on an application dated January 27, 2020, that Dr. Keshishian submitted for revalidating his own Medicare enrollment information, Dr. Keshishian answered “No” to the question:  “Has a final adverse legal action ever been imposed against an applicant under any current or former name or business entity?”  CMS Ex. 30 at 4.  Each enrollment application’s “certification statement” was electronically signed by Dr. Keshishian.  CMS Ex. 11 at 1; CMS Ex. 12 at 1; CMS Ex. 13 at 1; CMS Ex. 14 at 1; CMS Ex. 30 at 1. 

Dr. Keshishian filed these enrollment applications either for the purpose of revalidating enrollment information or updating enrollment information.  Therefore, these applications were filed to maintain enrollment.  42 C.F.R. §§ 424.515-424.516. 

As discussed above, the regulations define “Final Adverse Action” to include the revocation of a medical license by a state licensing authority.  42 C.F.R. § 424.502.  Therefore, when Dr. Keshishian certified that he had not been subject to a final adverse legal action on five enrollment applications, he certified false and/or misleading information as true. 

Petitioners do not dispute that Dr. Keshishian certified false information as being true; however, Petitioners argue that, to violate the regulations, there must be proof of intent to mislead CMS.  P. Br. at 7-8.  Dr. Keshishian declares that he signed the enrollment forms mistakenly without the intent to hide his Hawaii revocation and points to his honest response to OIG as proof he intended to hide nothing.  CMS Ex. 21 at ¶¶ 3-4. 

The argument that Petitioners make here, of a knowledge or intent requirement, has been rejected in prior cases decisions.  The plain text of § 424.535(a)(4) does not require proof

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that Dr. Keshishian subjectively intended to provide false information, only that false or misleading information was provided and certified as true.  Mark Koch, D.O., DAB No. 2610 at 4-5 (2022).  This would be true even if Dr. Keshishian relied on others to complete the enrollment application or had previously informed other entities of the final adverse action.  William Garner, M.D., DAB No. 3026 at 9-10, 14 (2020);  Sandra E. Johnson, CRNA, DAB No. at 14 (2016). 

In this case, Dr. Keshishian certified that he had no adverse legal actions on five enrollment applications over the course of three and a half years.  It strains credulity that Dr. Keshishian could mistakenly provide the same false information so many times over several years.  Therefore, there is no basis to accept Dr. Keshishian’s self-serving statements that he was merely mistaken when he certified that he had no final adverse legal actions. 

In coming to this conclusion, it is important to recall that the Hawaii revocation included findings and conclusions that Dr. Keshishian committed: 1) professional misconduct, hazardous negligence causing bodily injury to another, or manifest incapacity in the practice of medicine or surgery; and 2) incompetence or multiple instances of negligence.  CMS Ex. 9 at 5; CMS Ex. 29 at 5.  The findings and conclusions were directly related to Dr. Keshishian’s admitted misconduct in the California disciplinary case, which involved the death of a patient and resulted in the stayed revocation of Dr. Keshishian’s California medical license (pending completion of probation).   CMS Ex. 9 at 4, 10; CMS Ex. 29 at 4, 10.  This is information that Dr. Keshishian could well have wanted to avoid disclosing to CMS.    

6. I do not have the authority to review the length of the re-enrollment bar.

Whenever CMS has properly imposed a 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 the re-enrollment bar “[b]egins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 10 years . . . depending on the severity of the basis for revocation.”

In this case, the CMS contractor imposed a one-year re-enrollment bar on both Petitioners, beginning March 17, 2022 for Dr. Keshishian, and March 31, 2022 for Keshishian PC.  CMS Ex. 3 at 4; CMS Ex. 23 at 4.  Petitioner’s indicated that, while not waiving the challenge to CMS’s one year re-enrollment bar for purposes of judicial review, Petitioners acknowledged that the length of the re-enrollment bar CMS imposes is not a determination subject to review by an administrative law judge.  P. Br. at 5 n.1; Vijendra Dave, M.D., DAB No. 2672 at 9 (2016) (“our authority in a revocation case does not extend to reviewing the length of the reenrollment bar imposed by CMS.”).  I note that a one-year re-enrollment bar is the minimum bar that CMS could impose under

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the regulations.  Therefore, even if I could entertain a challenge to the length of the reenrollment bar, there would be no basis to shorten reenrollment bar. 

7. CMS has a legitimate basis to add Petitioners to the CMS preclusion list, effective July 6, 2022.

The regulations established a single list of individuals and entities for whom Medicare Advantage plans cannot provide reimbursement for items and services they provide to Medicare Part C enrollees, and of prescribers for whom Medicare Part D plans cannot provide reimbursement to enrollees for any prescriptions the prescriber writes.  42 C.F.R. §§ 422.222, 423.120(c)(6). 

There are three separate standards under 42 C.F.R. §§ 422.2 and 423.100 that may apply to a given individual to determine if he or she is added to the preclusion list.  The following applies when an individual is currently revoked for a reason other than under § 424.535(a)(3): 

(1) Meet all of the following requirements: 

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in § 424.535(a)(3) of this chapter.

(ii) The individual or entity is currently under a reenrollment bar under § 424.535(c) of this chapter.

(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph (1)(iii), CMS considers the following factors: 

(A) The seriousness of the conduct underlying the individual’s or entity’s revocation;

(B) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program; and

(C) Any other evidence that CMS deems relevant to its determination.  

42 C.F.R. § 422.2; see 42 C.F.R. § 423.100.

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CMS added Petitioners’ names to its preclusion list because CMS revoked Petitioners’ Medicare billing privileges, placed Petitioners under a one-year re-enrollment bar, and determined that the underlying conduct that led to Petitioners’ revocation was detrimental to the best interests of the Medicare program.  CMS Ex. 18 at 7-8; CMS Ex. 19 at 7-8.  In the present case, I have upheld the revocation and, therefore, the reenrollment bar remains in place.  As a result, the only issue remaining is whether the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  For the reasons stated below, I conclude that CMS reasonably concluded that it did. 

The CMS hearing officer first discussed the revocation under 42 C.F.R. § 424.535(a)(4).  Regarding the first regulatory factor, i.e., the seriousness of the conduct underlying the revocation, the CMS hearing officer asserted that CMS relies on providers and suppliers to self-report data accurately on enrollment applications.  CMS Ex. 18 at 7; CMS Ex. 19 at 7.  “[Petitioners’] failure to disclose the revocation of Dr. Keshishian’s Hawaii medical license, despite clear instructions, calls its trustworthiness and willingness to abide by program rules and regulations into question.”  CMS Ex. 18 at 8; CMS Ex. 19 at 7.  

Concerning the second regulatory factor, i.e., the degree to which Petitioners’ conduct could affect the integrity of the Medicare program because, even if Dr. Keshishian failed to report the Hawaii revocation out of ignorance, this is problematic given that the integrity of the Medicare program rests in part on the “integrity and reliability of our partners.”  CMS Ex. 18 at 8; CMS Ex. 19 at 8. 

Lastly, for the third factor, i.e., any other evidence that CMS deems relevant, the CMS hearing officer explained that it is relevant that Petitioners failed to timely disclose Dr. Keshishian’s California probation to the Hawaii Board of Medicine, as it shows that CMS cannot rely on Petitioners to fulfill their obligation to report updated information as required under the regulations.  CMS Ex. 18 at 8; CMS Ex. 19 at 8. 

The CMS hearing officer had a similar analysis of the factors for the revocation of Petitioners’ enrollment under 42 C.F.R. §424.535(a)(9).  Regarding the first factor, the CMS hearing officer considered that a “[f]ailure to understand or comply with program requirements is very serious because CMS relies upon the most recent information reported to CMS by providers and suppliers.”  CMS Ex. 18 at 8; CMS Ex. 19 at 8.  For the second factor, the CMS hearing officer stated that Petitioners’ actions present significant program integrity risks, as CMS “relies on complete and accurate data on each provider and supplier to help confirm that they still meet all Medicare requirements and that Medicare payments are made correctly.  Inaccurate or outdated information puts the Medicare Trust Funds at risk.”  CMS Ex. 18 at 8-9; CMS Ex. 19 at 8. 

In response, Petitioners argued that “Dr. Keshishian’s inadvertent mistake in his and his Practice’s 855 applications comes nowhere ne[ar] the[] types of offenses” listed in

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42 C.F.R. § 424.535(a)(3) as being detrimental to the best interests of the Medicare program.  P. Br. at 9.  Further, Petitioners argued that the failure to report the revocation and the act of falsely certifying information do not present a potential danger to the health, safety, and welfare of Medicare beneficiaries.  P. Br. at 9.  Petitioners also asserted that it has been five years since the revocation and Petitioners contact with OIG, and during that time “Dr. Keshishian has been a valued member of the medical community; he has not acted in a manner that would be detrimental to the integrity of the Medicare program.”  P. Br. at 9. 

Petitioners’ argument, that the list of crimes in § 424.535(a)(3) deemed to be detrimental to the best interests of the Medicare program are worse than Petitioners’ offenses in this case, is inapposite.  While the crimes listed in § 424.535(a)(3) are detrimental to the best interests of the Medicare program, it does not follow that those crimes represent the only conduct that is detrimental to the best interests to the Medicare program. 

Further, Petitioners’ arguments make too little of the fact that Dr. Keshishian both failed to report his Hawaii revocation and five times falsely certified that he had not been subject to any final adverse legal actions.  The Hawaii revocation is ultimately based on Dr. Keshishian’s admitted misconduct in California that resulted in the death of his patient.  These events would loom large in the thoughts of any reasonable person.  It is simply not plausible that Dr. Keshishian would not have realized, when signing five separate enrollment applications, that he was falsely certifying that he had not been subject to any final adverse legal actions. 

As the CMS hearing officer stated, CMS must be able to rely on the diligence and veracity of providers and suppliers to report regulatorily required information in a timely manner.  CMS cannot rely on Petitioners to do this.  Therefore, I conclude that CMS had a legitimate basis to conclude that the bases for Petitioners’ revocations were detrimental to the best interests of the Medicare program and to add Petitioners’ names to its preclusion list. 

VII.  Conclusion

I affirm CMS’s determinations to revoke Petitioners’ Medicare enrollment and billing privileges, effective March 17, 2022, for Dr. Keshishian, and March 31, 2022, for Keshishian PC.  I also affirm CMS’s determination to include Petitioners on the preclusion list, effective July 6, 2022. 

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Endnotes

¹  Dr. Keshishian submitted a declaration signed under penalty of perjury with his reconsideration request, which the CMS hearing officer designated as Exhibit 2.  CMS Ex. 19 at 2.  CMS submitted the declaration in this proceeding as CMS Exhibit 21.  Because Petitioners incorporated all of CMS’s proposed exhibits into Petitioners’ exhibit list, CMS could have requested to cross-examine Dr. Keshishian.  CMS did not do so.