Ahmer Hussain, M.D., CR6284 (2023)

DECISION

Novitas Solutions (Novitas), a Medicare administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Ahmer Hussain, M.D., pursuant to 42 C.F.R. § 424.535(a)(12) because the Oklahoma Health Care Authority (OHCA) terminated Petitioner’s participation in the Oklahoma Medicaid program.  CMS issued a reconsidered determination upholding the revocation and Petitioner appealed.  I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges.  There is no dispute that Petitioner was terminated from the Oklahoma Medicaid program, and he has exhausted the state administrative appeals available to him.

I.    Background and Procedural History

Petitioner is a physician licensed to practice medicine in Oklahoma.  See, e.g., CMS Exhibit (Ex.) 6 at 1.  Effective July 7, 2020, OHCA terminated Petitioner’s participation in SoonerCare (Oklahoma’s Medicaid program).  CMS Ex. 3.  OHCA’s revocation letter stated that immediate termination was necessary because of “a persistent pattern of prescribing very dangerous medication combinations” and a “lack of proper documentation.”  Id. at 3.  Among other allegations, OHCA charged that Petitioner

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prescribed combinations of opioids and benzodiazepines to more than half the patients sampled for peer review.  Id. at 1-2.  The letter notified Petitioner of his appeal rights and how to file an appeal.  Id. at 4.  Petitioner appealed and OHCA issued a final agency decision finding that there was a factual basis for terminating Petitioner’s SoonerCare contract.  CMS Ex. 4 (appeal); CMS Ex. 5 (final agency decision). 

By letter dated April 6, 2021, Novitas notified Petitioner that it was revoking his Medicare enrollment and billing privileges, effective May 6, 2021, because he had been terminated from the Oklahoma Medicaid program and because he had exhausted all appeal rights.  CMS Ex. 1 at 1.  Novitas imposed a reenrollment bar of three years.  Id. at 3. 

Petitioner requested reconsideration by letter dated June 2, 2021.  CMS Ex. 2 at 1.  A hearing officer in CMS’s Provider Enrollment & Oversight Group¹  issued an unfavorable reconsidered determination dated August 10, 2021.  CMS Ex. 7 at 1.  The reconsidered determination concluded that Novitas properly revoked Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(12) and upheld the reenrollment bar.  Id. at 6. 

Petitioner timely requested a hearing before an administrative law judge and the case was assigned to me.  The Civil Remedies Division acknowledged receipt of Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  Consistent with the Prehearing Order, CMS submitted a motion for summary judgment (CMS Br.) and seven exhibits (CMS Exs. 1-7).  Petitioner did not object to CMS’s proposed exhibits.  In the absence of objection, I admit CMS Exs. 1-7 into the record.  Petitioner submitted a brief (P. Br.) and seven exhibits.  CMS objected to Petitioner’s exhibits, arguing that Petitioner failed to label the exhibits in compliance with the Prehearing Order and that some of the exhibits are duplicative.  See Docket Entry # 17 in DAB E-File.  I sustain CMS’s objections and decline to admit Petitioner’s proposed exhibits.²   

Although CMS moved for summary judgment, this matter may be decided based on the written record without considering whether the standards for summary judgment have been met.  Prehearing Order ¶¶ 8-10; Civil Remedies Division Procedures § 19(d).  My Prehearing Order informed the parties that “[a]n in‑person hearing to cross-examine

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witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Prehearing Order ¶ 10.  Neither party proposed to call any witnesses or offered written direct testimony.  Because a hearing is unnecessary, I decide this case on the written record.  I deny CMS’s motion for summary judgment as moot.

II.    Issue

The issue in this case is whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(12).

III.    Jurisdiction

I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2);see also Act § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 405.803(a), 424.545(a), 498.1(g). 

IV.    Discussion

1. Applicable Legal Authority

The Act authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)). 

CMS may revoke the Medicare billing privileges of a supplier for any of the reasons stated in 42 C.F.R. § 424.535.  Section 424.535(a)(12) authorizes CMS to revoke billing privileges if:  

1. The provider or supplier is terminated, revoked or otherwise barred from participation in a State Medicaid program or any other federal health care program.  In determining whether a revocation under this paragraph (a)(12) is appropriate, CMS considers the following factors:
   1. The reason(s) for the termination or revocation.
   2. Whether the provider or supplier is currently terminated, revoked or otherwise barred from more than one program (for example, more than one State’s Medicaid program) or has been subject to any other sanctions during its participation in other programs.

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3. Any other information that CMS deems relevant to its determination.

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

Section 424.535(c)(1) provides that, if CMS revokes enrollment, a supplier may not participate in Medicare until the end of the reenrollment bar, which is at least one year but no more than ten years.

2. Findings of Fact, Conclusions of Law, and Analysis
   1. Effective July 7, 2020, OHCA terminated Petitioner’s contract with SoonerCare, the Oklahoma Medicaid program.
   2. CMS had a legal basis to revoke Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(12) because OHCA terminated Petitioner from the Oklahoma Medicaid program, and Petitioner has exhausted his state administrative appeals.

As described above, OHCA terminated Petitioner’s SoonerCare contract effective July 7, 2020.  CMS Ex. 3.  OHCA determined that Petitioner’s prescribing practices and inadequate recordkeeping posed a danger to SoonerCare participants.  Id. at 1-3.  The termination letter notified Petitioner of his right to appeal by requesting a “desk review.”  Id. at 4.  Petitioner requested administrative review and OHCA affirmed the decision to terminate Petitioner’s SoonerCare contract.  CMS Exs. 4, 5.  OHCA’s decision letter stated that it is the final agency decision on the matter.  CMS Ex. 5 at 1, 2.

Thereafter, Novitas notified Petitioner that his Medicare enrollment and billing privileges were revoked under 42 C.F.R. § 424.535(a)(12), because Oklahoma terminated his participation in the state’s Medicaid program and he had exhausted all appeal rights regarding the termination.  CMS Ex. 1 at 1.  CMS affirmed the revocation on reconsideration.  CMS Ex. 7.

Petitioner does not dispute that OHCA terminated his SoonerCare contract.  See, e.g., P. Br. at 1.  Nor does Petitioner dispute that he has exhausted his appeal rights concerning the termination.  Id. at 2 (Petitioner’s counsel “is fully aware that [Petitioner’s] appeal rights to dispute OHCA’s findings have been exhausted.”).  These two admissions establish that CMS was legally authorized to revoke Petitioner’s Medicare enrollment.  Although apparently recognizing that CMS had sufficient grounds for revoking his Medicare enrollment, Petitioner nevertheless argues that CMS was not required to revoke and should instead have exercised its discretion not to revoke based on “mitigating evidence.”  Id. at 7.  As I explain in the following section of this

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decision, Petitioner’s argument misunderstands the scope of my review in an enrollment revocation case.

3. Petitioner’s argument that he has been deprived of due process because OHCA’s administrative review process was unfair is not a basis to reverse the revocation of his Medicare enrollment.

As many appellate decisions of the Departmental Appeals Board (DAB) make clear, an administrative law judge is “authorized to review only whether CMS had a legal basis to revoke [a supplier’s] Medicare billing privileges, not CMS’s exercise of discretion to do so.”  Lorrie Laurel, PT, DAB No. 2524 at 7 (2013) (citing Letantia Bussell, M.D., DAB No 2196 at 12-13 (2008)).  Thus, once CMS establishes a legal basis on which to proceed with a revocation, as it has done here, then the CMS determination to revoke becomes a permissible exercise of discretion which I am not permitted to review.  Bussell, DAB No. 2196 at 10; Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2nd 167 (D. Mass. 2010) (If CMS establishes the regulatory elements necessary for revocation, administrative law judges may not substitute their “discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.”).

Petitioner reiterates before me the same arguments he addressed to CMS in his reconsideration request.  Compare P. Br. with CMS Ex. 2 at 1-6.  Petitioner first argues the OHCA proceedings that terminated his SoonerCare contract were flawed because the panel reviewing his appeal included two non-physicians and one physician whose specialty was different than Petitioner’s.  P. Br. at 3.  Petitioner further argues that he did not breach the terms of his SoonerCare contract because, contrary to OHCA’s conclusions, his prescribing practices and recordkeeping met professionally recognized standards.  Id. at 3-6.  A CMS hearing officer considered the identical arguments and determined that revocation was appropriate.  CMS Ex. 7.  It is therefore apparent that CMS exercised its discretion to determine that Petitioner’s Medicare enrollment should be revoked notwithstanding these arguments.  As the decisions cited above make clear, I may not substitute my discretion for that of CMS under these circumstances.

Moreover, Petitioner’s arguments amount to a collateral attack on his Medicaid termination, which is now final, as Petitioner acknowledges.  P. Br.at 2.  A Medicare enrollment revocation under section 424.535(a)(12) is derivative of the termination action of a state Medicaid agency, and I am aware of no authority that allows me to relitigate the merits or procedures involved in the underlying termination decision.

Finally, to the extent Petitioner argues that I should reverse the revocation of his Medicare enrollment based on principles of fairness, such general appeals to equity are also not a basis to overturn the revocation determination in this case.  Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016), appeal dismissed, Cent. Kan. Cancer Inst. v. Dep’t of

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Health & Human Servs., No. 2:17-cv-02012 (D. Kan. June 2, 2017) (The DAB “is bound by the regulations, and may not choose to overturn the agency’s lawful use of its regulatory authority based on principles of equity.”).

V.    Conclusion

I affirm CMS’s determinations to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(12) and the associated three-year reenrollment bar because Petitioner was terminated from the Oklahoma Medicaid program and has exhausted his appeals of that termination action.

Endnotes

¹  The Provider Enrollment & Oversight Group is a component of CMS itself, not an administrative contractor. 

²   Most, if not all, of Petitioner’s proposed exhibits were offered as attachments to his reconsideration request.  As such, they are a part of CMS Ex. 2.  In any event, for the reasons explained in section IV.B.3, below, the proposed exhibits are irrelevant to any issue I have authority to hear and decide.