Rajninder K. Jutla, MD, DAB CR6257 (2023)

DECISION

Rajninder K. Jutla, M.D., (Dr. Jutla or Petitioner) appeals the reconsidered determination revoking her Medicare enrollment and billing privileges and placing her on the Centers for Medicare & Medicaid Services (CMS) preclusion list.  For the reasons explained below, I grant summary judgment in favor of CMS and find that there was a legitimate basis for CMS to revoke Petitioner’s Medicare enrollment and billing privileges, based on 42 C.F.R. § 424.535(a)(1)-(2) and (9), and for CMS to include Petitioner on its preclusion list, based on 42 C.F.R. §§ 422.2 and 423.100.

I.    Background and Procedural History

Petitioner was enrolled in the Medicare program as a physician.  See CMS Exhibit (Ex.) 12 at 5.  A physician is considered a “supplier of services” or a “supplier” in the Medicare program.  42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202.  In initial determinations dated August 6, 2020, Dr. Jutla was initially notified that her Medicare privileges were being revoked pursuant to the provisions of 42 C.F.R. § 424.535(a)(1) and (9), effective

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March 5, 2020, because her Oregon and Washington medical licenses had been revoked and she did not notify CMS of these changes within the required 30 days.  CMS Exhibits (Exs.) 1-2.  She was also notified at that time that a one-year re-enrollment bar was established, pursuant to the provisions of 42 C.F.R. § 424.535(c). 

In a letter from the Department of Health and Human Services, Office of Inspector General (OIG), dated September 30, 2020, Dr. Jutla was notified that, pursuant to the provisions of section 1128(b)(4) of the Social Security Act (Act), she was being excluded from participation in Medicare, Medicaid, and all Federal health care programs because her license to practice medicine in Oregon was revoked while a formal disciplinary proceeding was pending before the Oregon Board of Medicine for reasons bearing on her professional competence, professional performance, or financial integrity.  CMS Ex. 7 at 1. 

On December 23, 2020, the initial determinations were reopened and revised to indicate that Petitioner’s Medicare privileges were also being revoked pursuant to the provisions of 42 C.F.R. § 424.535(a)(2) because she was excluded by the OIG.  CMS Exs. 3-4.  In addition, she was notified that the re-enrollment bar was extended to three years, and she had been added to the CMS preclusion list.  Id. 

Dr. Jutla filed a request for reconsideration on February 16, 2021, asserting that the Oregon license revocation was being litigated and she had believed that the OIG had reported the license revocation to CMS on her behalf.  CMS Ex. 5.  However, in a reconsidered determination dated April 9, 2021, CMS upheld the revocation of Petitioner’s Medicare enrollment and billing privileges under the provisions of 42 C.F.R. § 424.535(a)(1)-(2) and (9).  CMS Ex. 12.  CMS also upheld the three-year re-enrollment bar and the determination to include Petitioner on the preclusion list, effective with the date of that determination.  Id. 

Dr. Jutla filed a timely request for hearing (RFH) on June 8, 2021.  The case was initially assigned to Judge Jacinta L. Alves, who issued a Standing Prehearing Order on June 10, 2021, for Provider/Supplier Revocation, Termination, Preclusion, and Enrollment Related Cases.¹  In its prehearing exchange, CMS filed a Motion for Summary Judgment with Incorporated Memorandum of Law (CMS Br.) and 12 proposed exhibits (CMS Exs. 1-12).  Petitioner filed a Prehearing Statement, dated September 11, 2021, (P. Br.),² and

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four proposed exhibits (P. Exs. 1-4).  Petitioner subsequently filed unopposed requests to submit four additional exhibits (P. Exs. 5-8).  See Request Seeking Leave (Dec. 12, 2021); Request Seeking Leave to File an Additional Exhibit (Mar. 10, 2022); and Request Seeking Leave to File an Additional Exhibit (May 11, 2022). 

Petitioner’s proposed P. Exs. 1 and 3-8 consist of new records which were submitted for the first time at the Administrative Law Judge (ALJ) level.  Under the provisions of 42 C.F.R. § 498.56(e)(1), I must examine new documentary evidence that is offered by a provider or supplier and determine whether good cause exists for submitting that evidence for the first time at the ALJ level.  If I do not find good cause for submitting the evidence for the first time at the ALJ level, I must exclude the evidence from the proceeding and may not consider it in reaching a decision.  42 C.F.R. § 498.56(e)(2)(ii).  Petitioner explains that P. Ex. 6 was not submitted previously “because it just recently became a development,” and I note that P. Exs. 4-8 were also previously unavailable as they are all dated after the date of the reconsideration request.  Request Seeking Leave to File an Additional Exhibit (Mar. 10, 2022).  CMS has not offered any objections to the admission of these documents.  As a result, I find there is good cause for their admission, under the provisions of 42 C.F.R. § 498.56(e)(2)(i).  Given that there were no objections to either party’s proposed exhibits, CMS Exs. 1-12 and P. Exs. 1-8 are admitted into the record.³

II.   Issues

1. Whether summary judgment is appropriate;
2. Whether CMS had a legitimate basis for revoking Petitioner’s enrollment and billing privileges, pursuant to the provisions of 42 C.F.R. § 424.535(a)(1)-(2) and (9); and
3. Whether CMS had a legitimate basis for including Petitioner on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 423.100.  

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III.   Jurisdiction

I have jurisdiction to decide this case. 42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 498.3(b)(17)(i), (b)(20), 498.5(l)(2).  

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

The Act authorizes the Secretary of Health and Human Services to establish regulations for enrolling providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  Suppliers must enroll in the Medicare program and receive a billing number in order to obtain payment for services rendered to Medicare beneficiaries.  42 C.F.R. § 424.505.  The regulations delegate to CMS the authority to revoke the enrollment and billing privileges of suppliers.  42 C.F.R. § 424.535.  CMS or a Medicare contractor may revoke a supplier’s Medicare enrollment and billing privileges for a number of specified reasons, including, as relevant here, noncompliance with enrollment requirements, supplier conduct, or failure to comply with reporting requirements.  42 C.F.R. § 424.535(a)(1)-(2), and (9).  After CMS revokes a supplier’s enrollment and billing privileges, CMS bars the supplier from reenrolling in the Medicare program for a minimum of one year but not greater than ten years.  42 C.F.R. § 424.535(c)(1)(i).  CMS may also include a supplier on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 423.100.  

1. CMS is entitled to summary judgment.  The undisputed evidence establishes that there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(1)-(2) and (9).

Summary judgment is appropriate if “the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (citations omitted).  The moving party must show that there are no genuine issues of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Id.  If the moving party meets its initial burden, “the non-moving party must ‘come forward with specific facts showing that there is a genuine issue for trial.’”  Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (internal quotations omitted)).  “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact—a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab., DAB No. 2300 at 3 (citations omitted).  To determine whether there are genuine issues of material fact for hearing, an ALJ “must

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view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.”  Id.

As detailed below, there is no genuine dispute as to any material fact in this case.  Dr. Jutla is a physician licensed in Oregon, Washington, and California.  P. Ex. 1 at 1; CMS Ex. 5 at 2.  On July 24, 2019, the United States District Court for the Western District of Washington at Seattle issued an indictment, charging Dr. Jutla with Conspiracy to Pay and Receive Kickbacks, Receipt of Kickbacks, and Health Care Fraud.  CMS Ex. 8 at 7-8.  The indictment was based on an incident that occurred on or about August 30, 2013, at which time Petitioner allegedly forged the signature of another healthcare provider on a sign-in sheet for an event at which she was the paid speaker.  According to the Indictment, the event was actually a birthday dinner with friends and no presentation was made by Petitioner, even though she was paid $800.00 in compensation by Insys Therapeutics.  Id. 

On September 13, 2019, the Oregon Medical Board (OMB) sent Petitioner a Complaint and Notice of Proposed Disciplinary Action for violations, including unprofessional or dishonorable conduct, obtaining a fee by fraud or misrepresentation, prescribing controlled substances without a legitimate medical purpose, and gross or repeated acts of negligence.  Although Petitioner submitted a request for hearing in response, it was determined to be untimely and no good cause for the untimely filing was found by OMB.  The OMB then issued a Default Final Order dated March 5, 2020, upholding the violations of the Medical Practice Act alleged in the Complaint, revoking Petitioner’s license to practice medicine in the State of Oregon, and fining her $5,000.00.  CMS Ex. 8.  

Petitioner filed a request for reconsideration of the Default Final Order, but the OMB issued a Default Final Order on Reconsideration on August 6, 2020, holding that the decision dated March 5, 2020, to revoke the license of Petitioner remained in effect.  CMS Ex. 9.  Petitioner filed a petition for judicial review of the Default Final Order on Reconsideration on September 5, 2020.  P. Ex. 2 at 3.  OMB filed a Notice withdrawing its Final Order (Withdrawal Notice) with the Court of Appeals on February 4, 2022.  P. Ex. 6.  On February 4, 2022, the Oregon Court of Appeals accepted the OMB’s withdrawal of its Final Order by Default on Reconsideration.⁵  P. Ex. 7 at 1.  On April 7, 2022, after reconsideration, OMB ordered a contested case hearing on the notice of

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proposed discipline.  Id.  To date, there is no further evidence as to the status of this hearing or any final outcome.  However, information from the OMB dated April 13, 2022 indicates that the current status of Dr. Jutla’s medical license is “Lapsed,” effective February 3, 2022.  P. Ex. 8 at 1. 

Based on the actions of the OMB, on June 23, 2020, the State of Washington, Washington Medical Commission (WMC), issued an Ex Parte Order of Summary Suspension, suspending Petitioner’s license to practice as a physician in the State of Washington, pending further disciplinary proceedings by the Commission.  CMS Ex. 10.  After a hearing, the WMC entered a Findings of Fact, Conclusions of Law and Final Order on April 27, 2021 and a Stipulated Modified Findings of Fact, Conclusions of Law and Final Order on September 30, 2021.  P. Ex. 5 at 1.  In response to a request by Petitioner to reinstate her license dated October 11, 2021, the WMC issued an Order of Reinstatement with Terms and Conditions (Reinstatement Order) dated November 19, 2021, in which it granted Petitioner’s request for reinstatement of her license, with additional terms and conditions, including the requirement for a practice monitor.  P. Ex. 5. 

In a letter dated September 30, 2020, Dr. Jutla was notified by the OIG that, pursuant to the provisions of section 1128(b)(4) of the Act, she was being excluded from participation in Medicare, Medicaid, and all Federal health care programs because her license to practice medicine as a physician in the State of Oregon was revoked, suspended or otherwise lost “for reasons bearing on [her] professional competence, professional performance, or financial integrity.”  CMS Ex. 7 at 1.  The program exclusion was effective 20 days from the date of that letter.  Id.  The OIG website continued to show that Dr. Jutla remained excluded as of March 26, 2021.  CMS Ex. 11. 

1. The undisputed evidence establishes that there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(1). 

42 C.F.R. § 424.535(a) provides that CMS may revoke a currently enrolled supplier’s Medicare billing privileges for certain specified reasons, including when “[t]he provider or supplier is determined to not be in compliance with the enrollment requirements described in [§§ 424.500-.570].”  42 C.F.R. § 424.535(a)(1).  42 C.F.R. § 424.516 specifies supplier requirements for enrolling and maintaining active enrollment status in the Medicare program.  Under the provisions of 42 C.F.R. § 424.516(a)(2), to maintain active enrollment status, a supplier must certify its “[c]ompliance with Federal and State licensure, certification, and regulatory requirements, as required, based on the type of services or supplies the provider or supplier type will furnish and bill Medicare.”  A

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physician who provides services to Medicare beneficiaries and is enrolled in Medicare as a “supplier” would be reimbursed for providing “physicians’ services.” 42 C.F.R. § 410.20(a).  In order to be covered under the Medicare program, “physicians’ services” must be furnished by a practitioner who is “legally authorized to practice [medicine] by the State in which he or she performs the functions or actions.” 42 C.F.R. § 410.20(b) (emphasis added).  Thus, a doctor of medicine who seeks reimbursement for “physicians’ services” would not meet the federal regulatory enrollment requirements if she was not “legally authorized to practice” medicine.  As the Departmental Appeals Board (Board) stated in Akram A. Ismail, M.D., “the federal regulatory requirements in section 424.516(a)(2) applicable to doctors of medicine necessarily include by reference the provisions in section 410.20(b).”  DAB No. 2429 at 6 (2011). 

In the reconsideration determination dated April 9, 2021, CMS determined that, because of the license revocation in Oregon and license suspension in Washington, Dr. Jutla did not meet the licensing or certification requirements of those states and, as a result, was not in compliance with Medicare enrollment requirements.  CMS Ex. 12 at 4.  Petitioner initially argues that the license revocation in Oregon was based on a refusal of her “constitutional right to due process.”  RFH at 1.  Specifically, she alleges that the revocation resulted from a “brief delay in requesting a hearing” and the subsequent default order that “violated the Oregon APA,” was issued in the absence of a prima facie case, was not supported by substantial evidence, and was an inconsistent departure from prior agency practice.⁶  P. Ex. 2 at 2.  Petitioner sought, and obtained, a contested case hearing on the proposed discipline from the Oregon Court of Appeals, which was entered on February 4, 2022.  P. Ex. 7 at 1. 

It may well be that her legal arguments have merit before the OMB and, at some point, her license to practice medicine in Oregon will be reinstated.  However, as of March 5, 2020, Petitioner’s license to practice medicine in Oregon was revoked and there is no evidence in this record to establish that she has since regained that license.⁷  CMS Exs. 8-9.

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Similarly, as of June 23, 2020, Petitioner’s license to practice medicine in the State of Washington was summarily suspended.⁸  CMS Ex. 10 at 2.  While her license was reinstated as of November 19, 2021, P. Ex. 5, the fact remains that she did not have a valid license to practice medicine in the State of Washington from June 23, 2020, through November 18, 2021. 

The Board in Ismail also made clear that even the temporary suspension of a physician’s license rendered a supplier noncompliant with Medicare supplier requirements.  It stated that “[t]he inability to practice medicine for any length of time due to the disciplinary actions imposed against [the physician-supplier] triggered his noncompliance with the Medicare enrollment requirements and authorized revocation of his billing privileges.”  DAB No. 2429 at 8 (emphasis added).  Thus, the subsequent reinstatement of Petitioner’s license to practice medicine in the State of Washington does not overcome the fact that she was unable to practice medicine there from June 23, 2020, through November 18, 2021. 

As noted above, section 424.516(a)(2) mandates compliance with “Federal . . . regulatory requirements . . . based on the type of services or supplies the provider or supplier type will furnish and bill Medicare.”  Based on the above, I find that, because Dr. Jutla was not “legally authorized to practice medicine” in the State of Oregon since March 5, 2020 and was not “legally authorized to practice medicine” in the State of Washington during the period from June 23, 2020, through November 18, 2021, she was not in compliance with the Medicare enrollment requirements set forth in 42 C.F.R. § 424.516(a)(2).  Accordingly, there was a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under the provisions of 42 C.F.R. § 424.535(a)(1). 

2. The undisputed evidence establishes that there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(2).  

42 C.F.R § 424.535(a)(2)(i) provides, in relevant part, that CMS may revoke a currently enrolled supplier’s Medicare enrollment and any corresponding supplier agreement if the supplier was excluded from “the Medicare, Medicaid, and any other Federal health care program, as defined in [42 C.F.R. § 1001.2], in accordance with section 1128, 1128A,

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1156, 1842, 1862, 1867 or 1892 of the Act.”  Section 1128(b)(4) of the Act authorizes the Secretary to exclude from participation in any Federal health care program, any individual or entity “whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on the individual’s or entity’s professional competence, professional performance, or financial integrity.” 

As indicated above, Dr. Jutla was notified by the OIG on September 30, 2020, that she was being excluded pursuant to the provisions of section 1128(b)(4) of the Act from participation in Medicare, Medicaid, and all Federal health care programs because her license to practice medicine as a physician in the State of Oregon was revoked, suspended or otherwise lost “for reasons bearing on [her] professional competence, professional performance, or financial integrity.”  CMS Ex. 7 at 1.  The program exclusion was effective 20 days from the date of that letter.  Id.  The OIG website continued to show that Dr. Jutla remained excluded as of March 26, 2021.  CMS Ex. 11. 

Petitioner has not provided specific argument to challenge the revocation under 42 C.F.R. § 424.535(a)(2).  The uncontroverted evidence clearly establishes that Petitioner was excluded by the OIG from the Medicare program in accordance with section 1128(b)(4) of the Act.  Accordingly, there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under the provisions of 42 C.F.R. § 424.535(a)(2).  

3. The undisputed evidence establishes that there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(9).  

42 C.F.R. § 424.535(a)(9) provides, as relevant herein, that CMS may revoke a currently enrolled supplier’s Medicare billing privileges if the supplier did not comply with the reporting requirements specified in 42 C.F.R. § 424.516(d)(1)(ii).  42 C.F.R. § 424.516(d)(1)(ii) requires physicians to report any “adverse legal action” to their Medicare contractor within 30 days.  While “adverse legal action” is not specifically further defined in the regulations, “Final adverse legal action” is defined in 42 C.F.R. § 424.502 to include “[s]uspension or revocation of a license to provide health care by any State licensing authority” and a “Medicare-imposed revocation of any Medicare billing privileges.” 

The reconsidered determination found that Petitioner was “required to report to CMS the revocation of her Oregon license and the suspension of her Washington license, as well as her exclusion by the OIG” and that Dr. Jutla “did not report any of these actions within 30 days, or at all.”  CMS Ex. 12 at 5.  Petitioner does not assert that she reported these adverse legal actions within the specified time period.  Instead, on February 16, 2021, she

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alleged in her reconsideration request that the failure to report these actions was “an unfair accusation because my attorney and I were under the belief that the OIG was to inform CMS and by doing so Noridian [the Medicare contractor] as well.  I have been in a very chaotic, depressing time in my 20 year[] career and have barely been able to function as a mother to my two babies.  Had I known that I was to contact Noridian, I would have done so.”  CMS Ex. 5 at 1.  On June 8, 2021, in her hearing request, she provided a slightly different version of this argument, indicating that she “believed as a lay person that my attorney in Oregon had done that and mistakenly observed notice from the National Practitioner Database as evidence that Medicare had indeed been informed.”  RFH.  She further asserted that “there was no intention to purposely not inform Medicare.”  Id.  She made a similar argument in her Prehearing Statement, asserting that she “did NOT purposely fail to inform CMS of her license matter and fully trusted that her Oregon attorney by communicating with all agencies, including the OIG, had notified appropriate parties.”  P. Br. at 6.  

There is absolutely no reason to doubt the sincerity of her statements.  However, genuine lack of awareness or mistaken belief does not excuse the obligation to report the events specified in § 424.516(d)(1)(ii).  The Board has consistently held that “Medicare providers and suppliers, as participants in the program, have a duty to familiarize themselves with Medicare requirements.”  Francis J. Cinelli, Sr., D.O., DAB No. 2834 at 10 (2017) (citing Gulf S. Med., DAB No. 2400 at 9 (2011); Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 63 (1984) (“those who deal with the government are expected to know the law[.]”).  

Finally, Petitioner argued that the state board revocations underlying CMS’s revocation have “led to [her] shutting down her business which was successful and highly reputable,” an “unfortunate” result for “a minority woman-owned small business[,] contributing so much to the community.”  Additionally, the state board revocations have resulted in her “current reliance on food stamps, low income energy bill/utility benefits, application for property tax relief, and State health insurance” for herself and her four children.  Request Seeking Leave to File an Additional Exhibit at 1-2 (May 11, 2022). 

Accepting these statements, I acknowledge that the revocations have apparently resulted in harsh consequences for Petitioner and her family.  However, to the extent that this request for relief is based on principles of equity, I have no authority to grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  The Board has consistently held that neither it nor the ALJ has authority to reverse an authorized revocation for reasons of equity.  See, e.g., Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016) (the ALJ and the Board may not “restore a supplier’s billing privileges on equitable grounds.”); Horace Bledsoe,

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M.D., and Bledsoe Family Med., DAB No. 2753 at 11 (2016) (declining to rule on petitioners’ estoppel claim and stating that the Board may not overturn CMS’s lawful revocation of petitioners’ billing privileges on equitable grounds).  As a result, I cannot grant Petitioner’s request for relief with respect to CMS’s revocation on the basis of equity.  

The ultimate question before me is not whether I would have taken the actions imposed by CMS in this case or whether I agree with these actions.  Rather, my inquiry in this matter is limited to whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges.  As the Board noted, the right to review of CMS’s determination by an ALJ serves to determine whether CMS had the authority to revoke a physician’s Medicare billing privileges, not to substitute the ALJ’s discretion about whether to revoke.  Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (citing Michael J. Rosen, M.D., DAB No. 2096 at 14 (2007));  see also Fady Fayad, M.D., DAB No. 2266 at 16 (2009) (if CMS establishes a qualifying felony conviction as the basis for revocation, the Board must uphold revocation without regard to factors, such as the scope or seriousness of the supplier’s criminal conduct, that CMS might reasonably have weighed in determining whether to revoke), aff’d, 803 F. Supp. 2d 699 (E.D. Mich. 2011).  

The undisputed facts in this case establish that all three of the stated bases for revocation are grounded in law and fact.  Accordingly, I find that CMS had a legitimate basis for revoking Petitioner’s Medicare enrollment and billing privileges, pursuant to the provisions of 42 C.F.R. § 424.535(a)(1)-(2) and (9). 

2. I have no jurisdiction to adjudicate the three-year reenrollment bar. 

In the reconsidered determination dated April 9, 2021, CMS upheld the duration of the re-enrollment bar of three years established under § 424.535(c).  CMS Ex. 12 at 5-6.  While Petitioner has not directly put forth an argument on the imposition of the re-enrollment bar, she has requested “abandonment of all CMS punitive actions” against her and “to become reinstated with CMS.”  P. Br. at 5; Request Seeking Leave to File An Additional Exhibit at 1 (May 11, 2022). 

In considering these requests, I note that the only CMS actions subject to appeal under 42 C.F.R. part 498 are the initial determinations specified in 42 C.F.R. § 498.3(b).  The Board has held that CMS’s determination of the length of the re-enrollment bar under section 424.535(c) is not subject to review, explaining:  

Although the re-enrollment bar is a direct and legally mandated consequence of an appealable revocation determination, nothing in Part 498 authorizes the Board to review the length of the bar despite that relationship between a revocation and a reenrollment bar.  Given section 498.3(b)’s

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precise and exclusive enumeration of appealable determinations, we cannot find a CMS action to be appealable under Part 498 unless section 498.3(b) describes the subject matter of that action.  See North Ridge Care Ctr., DAB No. 1857, at 8 (2002) (stating that “[b]y its very terms, Part 498 provides appeal rights only for these listed actions” (italics added)).  On its face, section 498.3(b) does not describe any matter related to a post-revocation re-enrollment bar.

Vijendra Dave, M.D., DAB No. 2672 at 10 (2016).  

Petitioner cites no contrary authority.  Given this holding by the Board, I have no regulatory authority to review the length of the re-enrollment bar.  

4. The undisputed evidence establishes that CMS had a legitimate basis to include Petitioner on the CMS preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 423.100.  

In the reconsidered determination dated April 9, 2021, CMS upheld the earlier determination to include Petitioner on the CMS preclusion list, effective the date of the reconsidered determination, pursuant to the provisions of 42 C.F.R. § 422.2.  CMS Ex. 1 at 11.  Under the provisions of 42 C.F.R. § 422.2, the preclusion list is a CMS compiled list of individuals and entities that meet 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).

(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.

In determining whether the underlying conduct is “detrimental to the best interests of the Medicare program,” 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.

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

A preclusion list for prescribers is similarly included in 42 C.F.R. § 423.100.

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As held above, Dr. Jutla is currently revoked from Medicare under the provisions of 42 C.F.R. § 424.535(a)(1)-(2) and (9).  She is also currently under a reenrollment bar, pursuant to 42 C.F.R. § 424.535(c).  Thus, the question that remains for resolution is whether the underlying conduct that led to the revocation is “detrimental to the best interests of the Medicare program.”  In the reconsidered determination, CMS concluded that Petitioner’s conduct, involving the improper prescription of controlled substances, was “very serious” because it exposed patients to unnecessary risk of harm.  CMS Ex. 12 at 8.  It further concluded that the conduct that led to the revocation could significantly impact the integrity of the Medicare program because the improper prescription of controlled substances “is the precise type of conduct that the CMS Preclusion List was intended to deter within the Medicare program.”  Id.

Petitioner does not directly argue that the factors specified in the regulation were not considered by CMS.  Instead, she asserts that she “has in her entire career in Washington State of two decades, never received a reprimand or unfavorable Board action” and she has a “spotless record of almost 20 years of anesthesiology, pain management, and surgical care of patients in Washington and [there are many who] travel from nearby [s]tates for her highly specialized, textbook-authored care.”  P. Br. at 2. 

Considering the evidence in the light most favorable to Petitioner, I will accept that she did have a previously “spotless” record in the provision of medical services in the State of Washington.  That, however, does not overcome the uncontroverted evidence establishing that Petitioner’s underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program. 

In considering her arguments, I initially note that CMS provided extensive analysis of the regulatory factors within the facts of this case in reaching its conclusion on this issue.  CMS Ex. 12 at 6-8.  To counter this analysis, Petitioner provided subsequent evidence noting “WA state has reversed the suspension and is allowing Petitioner to return to clinical activities as a physician-surgeon.”  Petitioner Request Seeking Leave at 1 (Dec. 12, 2021).  However, this is an overly broad reading of this Order and the procedural history.  

The WMC, after a hearing, concluded that “[t]he Department proved by a preponderance of the evidence and clear and convincing evidence that [Petitioner] committed unprofessional conduct” and while protection of the public did not require revocation of her license, protection of the public would be met by “oversight with the use of a practice monitor, records review, and continuing education.”  P. Ex. 4 at 7, 9.  Petitioner’s license was suspended until the practice monitor requirement was established.  Id. at 9.  The Reinstatement Order by WMC dated November 19, 2021, reinstated Petitioner’s license but noted that “all other terms and conditions in the Modified Final Order remain in effect,” including the remaining sanctions to “protect the public.”  P. Ex. 5 at 3-4.  Thus,

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while WMC did not revoke Petitioner’s license and instead suspended her license for a period of time, it did so because of unprofessional conduct and the subsequent need to “protect the public.”  Nothing in the Reinstatement Order changed those findings.  Thus, the findings of the WMC demonstrate Petitioner’s conduct was serious and could affect the integrity of the Medicare program because of the potential risk to the public as a result of her medical practices. 

Similarly, with the submission of new evidence in the form of the Withdrawal Notice from the OMB, Petitioner argued that “the original decision of Oregon Medical Board is being litigated in the Court of Appeals and those proceedings have compelled the OMB to withdraw their decision and take a position in April, 2022 which hopefully is favorable.”  Request Seeking Leave to File an Additional Exhibit at 1 (Mar. 10, 2022). 

Subsequently, upon reconsideration, the OMB did order a contested case hearing on the notice of proposed discipline.  P. Ex. 7 at 1.  However, what the Withdrawal Notice and the Order for Hearing did not do was to reinstate Petitioner’s license or indicate that the OMB did not intend to continue to pursue its “Proposed Disciplinary Action” for violations of the Medical Practice Act, including unprofessional or dishonorable conduct, conduct or practice which does or might constitute a danger to the health or safety of a patient or the public, making a fraudulent claim, and prescribing controlled substances without a legitimate medical purpose.  CMS Ex. 8 at 1.  There is no evidence to establish that those charges do not remain pending while the OMB addresses the contentions raised on appeal.  P. Ex. 6.  To date, there is no evidence indicating that the proposed disciplinary action has been withdrawn or that Petitioner’s license to practice medicine in Oregon has been reinstated.  P. Ex. 8 at 1.  Accordingly, I find that CMS was warranted in concluding that Petitioner’s conduct was detrimental to the best interests of the Medicare program and that CMS had a legitimate basis for placing Petitioner on the preclusion list. 

V.    Conclusion

For the foregoing reasons, I affirm CMS’s revocation of Petitioner’s enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(1)-(2) and (9), and affirm CMS’s placement of Petitioner on the preclusion list, pursuant to 42 C.F.R. §§ 422.2 and 423.100. 

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Endnotes

¹  This case was reassigned to me on February 9, 2023. 

²  lthough this document bears the date of September 3, 2021 on the first page, it is dated September 11, 2021 on the signature page.  Petitioner also filed two earlier versions, on August 28, 2021, and September 3, 2021, before filing the final version on September 11, 2021.  

³  Petitioner filed multiple copies of her exhibits.  The following list clarifies which version of each exhibit is admitted into the record for consideration:  DAB E-File Doc. # 13 is P. Ex. 1; Doc. # 14 is P. Ex. 2; Doc. # 17 is P. Ex. 3; Doc. # 16 is P. Ex. 4; Doc. # 23 is P. Ex. 5; Doc. # 24 is P. Ex. 6; Doc. # 29 is P. Ex. 7; and Doc. # 30 is P. Ex. 8

⁴  My findings of fact and conclusions of law are set forth in bold italics below. 

⁵  In the Order for Hearing, the OMB twice refers to the August 6, 2020 Order as the “Final Order by Default Upon Reconsideration.”  P. Ex. 7 at 1.  It is presumed that it is referencing its Order entitled Default Final Order on Reconsideration dated August 6, 2020.  CMS Ex. 9 at 1.  

⁶  The arguments Petitioner has presented on this issue go to the merits of her case before the OMB.  However, this is not the forum in which to challenge the actions of the OMB.  My jurisdiction is limited to the issues identified in 42 C.F.R. § 498.3(b), which include whether to revoke a supplier’s Medicare enrollment in accordance with § 424.535.  The merits of Petitioner’s cases before the state medical boards are outside this jurisdiction and are not considered. 

⁷  The most recent evidence relating to the status of her Oregon license continues to indicate it is “Lapsed” as of February 3, 2022.  P. Ex. 8 at 1.  Petitioner has not provided any evidence to indicate that she has since prevailed in the contested case hearing. 

⁸  In the Order of Reinstatement with Terms and Conditions dated November 19, 2021, the State of Washington Medical Commission indicated that Petitioner’s license was suspended on June 25, 2020.  P. Ex. 5 at 1.  However, the original order of Summary Suspension is dated June 23, 2020 and required Petitioner to “immediately” deliver all licenses.  CMS Ex. 10 at 4-5.  Based on this, it is assumed that the June 25, 2020 reference was a typo rather than a change in the suspension date.