Emad Mikhail Bishai, M.D., CR6297 (2023)

AMENDED DECISION

Novitas Solutions (Novitas), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Emad Mikhail Bishai, M.D., pursuant to 42 C.F.R. §§ 424.535(a)(9) and 424.535(a)(22).  Petitioner requested a hearing before an administrative law judge (ALJ) to dispute the revocation.  Because Petitioner failed to comply with reporting requirements pertaining to adverse legal events, I affirm CMS’s revocation action. 

   I. Background and Procedural History

Dr. Emad Mikhail Bishai is a physician in Conroe, Texas specializing in pain medicine, neurology, and psychiatry since 2010.  P. Ex. 1 at 1; P. Br. at 4, 8.  On November 18, 2019, the Texas Medical Board suspended Dr. Bishai’s medical license.  P. Ex. 1.  It took this action after authorities issued warrants for Dr. Bishai’s arrest on four felony counts of improperly prescribing controlled substances and five felony counts of practicing medicine in violation of the Medical Practices Act.  Id. at 1. 

On December 11, 2019, Dr. Bishai mailed a CMS-855I enrollment form to Novitas via certified U.S. mail to advise the contractor of the adverse legal action taken against him.  CMS Ex. 2 at 8-12; P. Ex. 2 at 4, 7-10.  Novitas did not receive the letter Dr. Bishai sent; as of December 18, 2019, the U.S. Postal Service’s tracking system indicated it was still in transit.  CMS Ex. 4 at 1-2. 

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On February 19, 2020, Novitas notified Dr. Bishai it revoked his Medicare billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(1) and 424.535(a)(9).¹ CMS Ex. 3.  Novitas explained it revoked his billing privileges for noncompliance with enrollment requirements due to the suspension of his medical license and for failing to report that adverse action within 30 days of the event.  Id. at 1.  Novitas gave Dr. Bishai the opportunity to submit a corrective action plan (CAP) with respect to the revocation basis under 42 C.F.R. § 424.535(a)(1).  Novitas also imposed a three-year enrollment bar effective 30 days after the postmark of the notice letter.  Id. at 2. 

Novitas denied Petitioner’s CAP submission on March 27, 2020.  CMS Ex. 2 at 28-29.  Petitioner asked CMS to reconsider Novitas’ revocation determination, arguing the CAP he submitted demonstrated his compliance with both 42 C.F.R. §§ 424.535(a)(1) and 424.535(a)(9).  CMS Ex. 2 at 1-3.  Petitioner explained the Texas Medical Board reinstated his medical license on March 6, 2020 and that the reinstatement order, by its terms, superseded the November 2019 order of temporary suspension, meaning Petitioner remained in compliance with Medicare enrollment requirements.  Id. at 2.  Petitioner contended Novitas upheld his revocation under 42 C.F.R. § 424.535(a)(1) relying on incorrect information concerning his licensure status presented on the Texas Medical Board’s website.  Id.  Petitioner further asserted he sent a “certified letter of notification to [the] Medicare administration informing them of his license suspension” on December 10, 2019, 22 days after learning of his license suspension and well within the 30-day reporting period.  Id. at 1.  

On May 13, 2020, CMS issued a reconsidered determination upholding Novitas’ revocation determination.  CMS Ex. 1.  CMS overturned the revocation action under 42 C.F.R. § 424.535(a)(1), finding Petitioner corrected the deficiency leading to this action by demonstrating the Texas Medical Board rescinded its temporary suspension of his license.  Id. at 3.  However, CMS upheld the revocation under the basis of 42 C.F.R. § 424.535(a)(9), stating that even though Petitioner attempted to notify CMS of his license suspension within the 30 days by mail, Novitas never received it.  Id. at 3-4.  CMS reasoned that Petitioner had access to the tracking number for the notice he mailed and therefore should have known it was not delivered.  CMS also observed Petitioner’s notice to Novitas was incomplete because it omitted the section of the form where Petitioner was required to identify his license suspension.  Id. at 4.  CMS thus found Petitioner failed to comply with his reporting obligation under 42 C.F.R. § 424.535(a)(9) and upheld his revocation.  Id. at 4-5. 

Petitioner timely requested a hearing before an ALJ in the Civil Remedies Division and I was designated to hear and decide this case.  On June 4, 2020, I issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) setting forth a briefing schedule.  CMS

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submitted a brief and a motion for summary judgment (CMS Br.) and proposed four exhibits (CMS Exs. 1-4) on July 9, 2020. 

On July 30, 2020, CMS issued a revised reconsidered determination, adding 42 C.F.R. § 424.535(a)(22) as an additional basis for revocation.²  CMS then filed a motion for supplemental briefing or alternatively for dismissal, as CMS had revised and reissued the reconsidered determination pending before me.  I stayed the pre-hearing schedule on August 11, 2020.  Petitioner opposed CMS’s motion to dismiss and joined CMS’s request for supplemental briefing on August 13, 2020.  

On August 14, 2020, I issued an order denying CMS’s motion to dismiss and granting the parties’ request for supplemental briefing.³  CMS filed its amended pre-hearing brief on August 28, 2020 with one supplemental exhibit (CMS Ex. 5).  Petitioner filed his pre-hearing brief and response to CMS’s motion on September 30, 2020 along with fourteen proposed exhibits (P. Exs. 1-14). 

CMS objected to Petitioner’s Exhibits 10 and 11 because Petitioner offered a curriculum vitae and report from a witness for whom he had not submitted written direct testimony.  Petitioner sought leave to file the declaration of his expert witness, which I granted, identified as P. Ex. 15.⁴  CMS’s objections are overruled as moot.  Absent further objections from the parties, I admit Petitioner’s Exhibits 1 through 15 and CMS Exhibits 1 through 5 into the record.  

   II. Decision on the Record

My Pre-hearing Order required the parties to submit written direct testimony for each proposed witness and advised them an in-person hearing would only be necessary if an opposing party requested the opportunity to cross-examine a witness.  Pre‑hearing Order ¶¶ 8, 10; Civ. Remedies Div. P. §§ 16(b), 19(b); Pacific Regency Arvin, DAB No. 1823 at 8 (2002). 

CMS identified no witnesses and has not sought to cross-examine the two witnesses identified by Petitioner.  Accordingly, I will not hold an in-person hearing in this matter,

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and issue this decision based on the written record.  Civ. Remedies Div. P. § 19(b).  CMS’s motion for summary judgment is denied as moot. 

   III. Issue

Whether CMS has a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(9) and 42 C.F.R § 424.535(a)(22).  

   IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 493.3(b)(17), 498.5(l)(2).

   V. Findings of Fact, Conclusions of Law, and Analysis⁵

        A. Applicable Law.

As a physician, Petitioner is a “supplier” for purposes of the Medicare program.  42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.20(b)(1).  To participate in the Medicare program as a supplier, individuals must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510, 424.516. 

Under 42 C.F.R. § 424.535(a)(9), CMS may revoke a currently enrolled supplier’s Medicare billing privileges if the supplier fails to comply with the reporting requirements in 42 C.F.R. § 424.516(d)(1)(ii).  Section 424.516(d)(1)(ii) requires physicians and non-physician practitioners to report any adverse legal action within 30 days of its occurrence.  Adverse legal actions include a “[s]uspension or revocation of a license to provide health care by a State licensing authority.”  42 C.F.R. § 424.502. 

42 C.F.R. § 424.535(a)(22) allows CMS to revoke a physician’s Medicare billing privileges if he or she:

[H]as been subject to prior action from a State oversight board, Federal or State health care program, Independent Review Organization (IRO) determination(s), or any other equivalent governmental body or program that oversees, regulates, or administers the provision of health care with underlying facts reflecting improper physician or other eligible professional conduct that led to patient harm.

42 C.F.R. § 424.535(a)(22).  CMS considers several factors to determine whether  revocation is appropriate under this regulatory provision, set forth at 42 C.F.R. § 424.535(a)(22)(i)(A)-(E):  the nature of the patient harm, the nature of the conduct at issue, and the type of discipline imposed as the result of that conduct, including license restrictions, compliance appearances, administrative or monetary penalties, and formal reprimands.

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        B. CMS had a valid basis to revoke billing privileges of Petitioner as of March 20, 2020.

1. CMS had a valid basis to revoke Petitioner’s billing privileges in the Medicare program under 42 C.F.R. § 424.535(a)(9) because Petitioner did not provide timely or adequate notice of the adverse legal action taken against him.

42 C.F.R. § 424.516(d) requires physicians like Petitioner to report any adverse legal action taken against them within 30 days of the event.  Adverse legal actions include a “[s]uspension or revocation of a license to provide health care by any State licensing authority.”  42 C.F.R. § 424.502.  CMS may revoke a physician who fails to meet this reporting obligation.  42 C.F.R. § 424.535(a)(9).  CMS must consider four factors to determine whether revocation on this basis is appropriate. These factors are:  

(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.  

42 C.F.R. § 424.535(a)(9). 

There is no dispute that Petitioner had been subject to an adverse legal event or that he tried to notify Novitas about that event.  Nor is there any dispute that CMS’s contractor did not timely receive that notice.  CMS argues Petitioner failed to meet his obligation under 42 C.F.R. § 424.516(d)(1)(ii) to notify Novitas of the adverse action taken against him by the Texas Medical Board, warranting revocation of his billing privileges under 42 C.F.R. § 424.535(a)(9).  CMS Br. at 5-8.  CMS acknowledges Petitioner attempted to provide notice to Novitas of the adverse legal action taken against him but believes it properly revoked his billing privileges because even if properly delivered, Petitioner’s notice was inadequate.  Id. at 5-7.  

Petitioner contends CMS had no basis to revoke his billing privileges because he attempted to timely report the adverse legal action taken against him.  P. Br. at 12.  He argues his “notice should be considered delivered to CMS” when submitted to the U.S. Postal Service.  Id. at 9.  Petitioner also argues the regulatory factors CMS is supposed to consider for this type of revocation do not support his revocation.  Id. at 12-17.  Finally, Petitioner claims CMS should have been on notice of his license suspension because the Texas Medical Board published that fact on its website and because Petitioner did not bill the Medicare program during his period of suspension.  Id. at 13. 

Petitioner’s latter arguments are entirely without merit.  It is his burden under the regulations to notify CMS of an adverse legal action.  42 C.F.R. § 424.516(d)(1)(ii).  Neither CMS nor its nationwide contractors can reasonably be expected to constantly

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survey medical board websites or monitor changes in billing patterns to assess whether a supplier might have been subject to an adverse legal action. 

Petitioner’s claim that his notice should be considered “delivered” within the meaning of the regulations once the U.S. Postal Service accepted it for delivery is more persuasive.  In its own regulations, CMS relies upon presumptive delivery via U.S. mail to establish and enforce appeal timelines related to determinations it issues to individuals and entities it regulates.  See 42 C.F.R. §§ 498.22(b)(3), 498.40(a)(2).  If CMS can presume delivery when it uses the U.S. mail to deliver critical documents, it would not be unreasonable to permit suppliers like Petitioner to do the same – or at least allow them to rely on the established fact of failed delivery as a defense to revocation.  But I need not resolve this issue because even if deemed properly delivered, Petitioner’s notice to Novitas was inadequate to meet his regulatory reporting obligation. 

The standardized form Petitioner used in his attempt to notify Novitas included a checked-box option in section 1B for him to indicate he wished to report an adverse legal action.  P. Ex. 2 at 8.  He did so, but Section 1B also plainly advised that “[w]hen reporting ANY information, sections 1, 2A, 3, and 15 MUST always be completed in addition to the information that is changing within the required section.”  Id.  Here, Petitioner included sections 1, 2A, and 15, but curiously omitted pages of the form containing section 3.  Id. at 8-10.  Section 3 provided the space for Petitioner to explain the nature of the adverse final action taken against him that he identified in section 1. 

Petitioner concedes he omitted section 3 but claims he “substantially complied” with 42 C.F.R. § 424.516(d)(1)(ii).  P. Br. at 12.  But without including this critical section of the form, Petitioner’s notification to Novitas failed to apprise the contractor of anything beyond the mere fact of an adverse legal action.  He did not specify the nature of the action taken against him.  He did not identify the entity that acted against him.  He did not provide the factual basis for that action, or even when it occurred.  Whether intentionally or not, by omitting pages of the reporting form, Petitioner managed to provide as little information as possible to Novitas.  Therefore, I cannot say Petitioner “substantially complied” with his reporting obligation, as he claims.  Even assuming proper delivery of his notice when Petitioner mailed it, I conclude Petitioner failed to adequately notify Novitas of the adverse legal action taken against him as required by 42 C.F.R. § 424.516(d)(1)(ii). 

Petitioner next argues the regulatory factors CMS must consider counsel against his revocation under 42 C.F.R. § 424.535(a)(9).  P. Br. at 12-17.  But my review is limited to determining whether CMS had a legitimate basis to revoke Petitioner’s billing privileges.  I cannot substitute my own judgment to determine whether Petitioner should be revoked; I can only assess whether the record supports CMS’s decision to do so.  Fady Fayad, M.D., DAB No. 2266 at 16 (2009).  Here, CMS established that it considered and analyzed these factors in its reconsidered determination.  CMS Ex. 1 at 3-4.  CMS’s analysis is sufficient for me to conclude it properly exercised its discretion to revoke Petitioner’s billing privileges. 

Finally, while I am sympathetic to Petitioner’s argument that he attempted in good faith to report his temporary license suspension to CMS and failed to do so only because of

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circumstances outside his control, I am unable to afford him equitable relief.  Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016) (citing Neb Grp. of Ariz. LLC, DAB No. 2573 at 6 (2014), citing Complete Home Care, Inc., DAB No. 2525 at 7 (2013), citing Letantia Bussell, M.D., DAB No. 2196 at 12-13 (2008) (“neither [the Board] nor an ALJ has the authority to restore a supplier’s billing privileges on equitable grounds.”)). 

2.   I need not decide whether revocation of Petitioner’s billing privileges was appropriate under 42 C.F.R. § 424.535(a)(22).

CMS’s July 30, 2020 revised reconsidered determination added a basis for revocation of Petitioner’s enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(22).  CMS Ex. 5 at 5-6.  However, because I have concluded that CMS had a legal basis to revoke his enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9), I need not decide whether it had a basis to do so under 42 C.F.R. § 424.535(a)(22) as well.  See 1866ICPayday.com, L.L.C., DAB No. 2289 at 13 (2009). 

3.   The effective date of Petitioner’s revocation is March 20, 2020.

CMS had a basis under 42 C.F.R. § 424.535(a)(9) to revoke Petitioner’s Medicare billing privileges.  The effective date of revocation is 30 days after the postmark of the initial revocation letter.  42 C.F.R. § 424.535(g).  The initial revocation letter sent by Novitas is dated February 19, 2020, making the effective date of Petitioner’s revocation March 20, 2020.

   IV. Conclusion

For the foregoing reasons, I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges.

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Endnotes

¹  42 C.F.R. § 424.535(a)(1) permits CMS to revoke enrollment where a provider or supplier is not in compliance with enrollment requirements and has not submitted a corrective action plan.  42 C.F.R. § 424.535(a)(9) permits revocation where a provider or supplier does not comply with certain reporting requirements including, at issue here, the obligation under 42 C.F.R. § 424.516(d) for physicians to report adverse legal actions to the appropriate administrative contractor within 30 days.  

²  This provision permits CMS to revoke a physician like Petitioner who has been subject to action from an overseeing board or program for improper professional conduct that led to patient harm. 

³  I incorporate by reference the concerns I expressed in my August 14, 2020 order, attached to this decision to provide necessary context and allow public review.  While this matter was pending before me, and in apparent disregard for its own regulations, CMS reopened this matter and revised its reconsidered determination without my leave. 

⁴  Petitioner also refiled Exhibits 1 through 14 at the time he filed Exhibit 15 to the record.  These were improperly filed as one omnibus exhibit, rather than the separately labeled and paginated exhibits required by my Pre-hearing Order. 

⁵  My findings of fact and conclusions of law are set forth in italics and bold font.

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Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Emad Mikhail Bishai, M.D.,

(PTAN: TXB161673 / NPI: 1922062181),

Petitioner,

v.

Centers for Medicare & Medicaid Services,

Respondent,

Docket No. C-20-540

Date: August 14, 2020

ORDER GRANTING JOINT MOTION FOR SUPPLEMENTAL BRIEFING

On June 2, 2020, Petitioner sought administrative law judge (ALJ) review of a determination by CMS to revoke his billing privileges. I was designated to hear and decide this case and set a briefing schedule for the parties to submit arguments and evidence. 

On August 3, 2020, after filing its own pre-hearing exchange, the Centers for Medicare & Medicaid Services (CMS) filed a motion to submit supplemental briefing or alternatively dismiss (CMS Motion), citing the fact that on July 30, 2020, CMS had reopened its decision pursuant to 42 C.F.R. § 498.30 and “issued Petitioner a revised reconsideration decision that vacated and superseded the May 13, 2020 decision currently under review by the ALJ in this action.” CMS Motion at 2. CMS argues that I have the authority to provide hearing rights on new issues impinging on the rights of the affected party. CMS Motion at 2, citing 42 C.F.R. § 498.56. In its response (P. Resp.), Petitioner joined CMS in its request to permit supplemental briefing and opposed dismissal because “it would cause an unnecessary delay in the resolution of this mater and would result in the waste of judicial resources.” P. Resp. at 1. 

As I explain further, the regulations do not precisely address this circumstance but appear to permit me to extend my jurisdiction over the addition of a basis for CMS’s revocation action. I therefore decline to dismiss this matter and order supplemental briefing. 

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1. CMS should have sought remand to reopen the reconsidered determination.

42 C.F.R. § 498.30 permits CMS to reopen a determination on its own initiative within 12 months of the date of the initial determination.¹ 42 C.F.R. § 498.78 affords me the discretion to remand a case either at CMS’ request or on my own initiative. 42 C.F.R. § 498.56 gives me the authority, excluding a few types of cases, to provide a hearing on new issues even if CMS have not made initial or reconsidered determinations on them. 

However, the regulation permitting CMS to request remand while a case is pending before an ALJ would clearly have no purpose if CMS can simply reopen a determination at its whim. That is made clear in the proposal notice for the revised remand regulation, where the drafters explain that they eliminated the requirement for a petitioner to concur with CMS’s remand request because: 

We believe that the appeals process can be enhanced by allowing an ALJ to remand a provider enrollment case to the Medicare FFS contractor when CMS requests a remand. Further, we believe that a remand request could result in either a favorable decision to the appellant or an administrative record that is complete.” Medicare Program; Appeals of CMS or Contractor Determinations When a Provider or Supplier Fails To Meet the Requirements for Medicare Billing Privileges. 

79 Fed. Reg. 9,479, 9,486 (proposed March 6, 2007) (to be codified at 42 C.F.R. pts.  405, 424, 498) (emphasis added). 

The drafters of the remand regulation clearly anticipated that CMS would request remand for the purpose of reopening an underlying determination while a case is pending before an ALJ. This is precisely what CMS should have done.² Had it done so, I could have permitted Petitioner an opportunity to respond, determined whether remand and dismissal were appropriate, or if it was instead appropriate to retain jurisdiction and allow CMS to identify new issues. 

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It is clear that both the regulation giving me the authority to remand and the one empowering me to hear new issues leave it to my discretion to determine which path is appropriate. 42 C.F.R. § 498.56(a) (“. . . [T]he ALJ may . . . provide a hearing on new issues. . . .”); 42 C.F.R. § 498.78(a) (“. . .[T]he ALJ may remand any case properly before him or her to CMS.”) (emphasis added). Here, CMS short-circuited me out of the process altogether. The regulations do not permit CMS to do so, and it should avoid similar conduct in the future. 

2. The regulations permit me to consider new issues that have arisen in this circumstance.

The question is whether I retain jurisdiction over the revised reconsidered determination. CMS asserts my authority to provide Petitioner new hearing rights on new issues is applicable to this circumstance. CMS Motion at 2, citing 42 C.F.R. § 498.56. That regulation specifies that I may consider new issues even where CMS has not made initial or reconsidered determinations, excluding certain categories of actions that do not include revocation, which is at issue here. 42 C.F.R. § 498.56(a)(2).³

Here, upon reopening, CMS appears to have added a basis for revocation under 42 C.F.R. § 424.545(a)(22) that was not present in the initial and reconsidered determinations. CMS Motion at 2. Since the regulation permits me to extend my authority over issues that CMS did not consider at all, it seems likely that my authority to do so is even more apparent where CMS has considered a “new issue” as it has done here, even if vacating the reconsidered determination which conferred my jurisdiction in the first place suggests otherwise.⁴

Ultimately, I agree with Petitioner that dismissal is a waste of my resources and would cause him needless delay. It is unfortunate CMS took action without regard for the regulations that has resulted in the necessity for me to expend limited resources and time considering the proper outcome here. In any event, CMS’s motion to dismiss is denied. The parties’ joint motion to permit supplemental briefing is granted. 

CMS’s amended pre-hearing brief and any supplemental exhibits must be filed by August 28, 2020. Petitioner must file his pre-hearing exchange by October 2, 2020.  

SO ORDERED.

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Endnotes

¹ As the initial determination was issued on February 19, 2020, the time bar is not at issue here. CMS Ex. 3. 

² It is my expectation that CMS counsel was unaware of CMS’ action here, and will emphasize to his client that in the future, it must seek remand of a case pending before an ALJ prior to reopening a determination. 

³ It further narrows the scope of new issues by excluding issues arising after certain events in certain types of cases, none of which apply to new bases for a revocation action. 42 C.F.R. § 498.56(b).

⁴ It is entirely possible the regulations do not support my assertion of jurisdiction in this circumstance. But as neither party seeks dismissal as the sole remedy here, it seems unlikely my reasoning will be tested. Still, this uncertainty is precisely the reason CMS should stay within the ambits of the regulations by first requesting remand prior to reopening a determination pending before an ALJ.