Mohammed M. Mohiuddin, M.D., DAB CR6354 (2023)

DECISION

The Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractors, Novitas Solutions, Inc. (Novitas) and Palmetto GBA (Palmetto), revoked the Medicare enrollment and billing privileges of Mohammed M. Mohiuddin, M.D. (Petitioner or Dr. Mohiuddin) pursuant to 42 C.F.R. § 424.535(a)(9), (a)(12), and (a)(22). CMS took this action because, among other reasons, Petitioner was the subject of several adverse legal actions in the State of Maryland, which he failed to report to CMS within the required time frame.  CMS also imposed a 10‑year reenrollment bar and added Petitioner to the preclusion list.  Petitioner now appeals CMS’s determinations.  As explained below, I affirm CMS was authorized to revoke Petitioner’s Medicare enrollment and billing privileges and place Petitioner on the preclusion list.  I have no authority to review the length of the reenrollment bar.

I.    Background and Procedural History

Petitioner is a physician licensed to practice medicine in Maryland.  CMS Exhibit (Ex.) 6 at 2 (¶ 1); see also CMS Ex. 18 at 1-2.  On May 14, 2021, the Maryland State Board of Physicians (Maryland Board) issued a Summary Suspension of License to Practice

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Medicine (Suspension Order).  CMS Ex. 13.  The Maryland Board suspended Petitioner’s license to practice medicine because it determined that Petitioner could not safely practice urological surgery.  Id. at 7 (¶ 19 and Order).  Following a show cause hearing on May 26, 2021, the Maryland Board affirmed the summary suspension and offered Petitioner the opportunity for a full evidentiary hearing before a state administrative law judge.  CMS Ex. 12 at 1-2.  In a letter dated May 27, 2021, the Maryland Board informed Petitioner of its decision and noted that the suspension of Petitioner’s license continued in effect.  Id.  By letter dated July 26, 2021, the Maryland Department of Health terminated Petitioner as a Medicaid provider because his license to practice medicine had been suspended.  CMS Ex. 9.

In letters dated June 29, 2021 and July 20, 2021, Novitas notified Petitioner that his Medicare enrollment and billing privileges in the District of Columbia and Maryland were revoked effective May 14, 2021.  CMS Exs. 10, 11.  In those initial determinations, Novitas cited 42 C.F.R. § 424.535(a)(1) and (a)(9) as grounds for the revocations.  CMS Ex. 10 at 1; CMS Ex. 11 at 1.  The cited regulations require Medicare suppliers to maintain compliance with applicable state licensing requirements and to report any adverse legal actions to the Medicare contractor within 30 days.  See 42 C.F.R. § 424.516(a)(1), (d)(1)(ii), as referenced in 42 C.F.R. § 424.535(a)(1), (a)(9).  The initial determination letters also informed Petitioner that he was subject to a one-year reenrollment bar.  CMS Ex. 10 at 4; CMS Ex. 11 at 4.

By letter dated August 31, 2021, Petitioner requested reconsideration of Novitas’ June 29, 2021 initial revocation determination.  CMS Ex. 8.  In that reconsideration request, Petitioner reported for the first time the May 14, 2021 summary suspension of his medical license.  Id. at 2.  He explained that his failure to report the action was an oversight and that he did not intend to withhold the information from CMS.  Id.

By letters dated October 11, 2021 and October 15, 2021, Novitas informed Petitioner that, pursuant to 42 C.F.R. §§ 498.30 and 498.32, it was reopening and revising its June 29, 2021 and July 20, 2021 initial determinations.  CMS Ex. 5 at 1;¹  CMS Ex. 7 at 1.  The revised initial determinations removed 42 C.F.R. § 424.535(a)(1) as a basis for the revocation and stated that, in addition to 42 C.F.R. § 424.535(a)(9), Petitioner’s Medicare enrollment and billing privileges were being revoked pursuant to 42 C.F.R. § 424.535(a)(12) and (a)(22).  CMS Ex. 5 at 1-2; CMS Ex. 7 at 1-2.  Subsection 424.535(a)(12) authorizes CMS to revoke a supplier that has been terminated by a state Medicaid program; subsection 424.535(a)(22) authorizes revocation where a physician has been subject to discipline by a state board for conduct that led to patient harm.  The

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letters also stated that Petitioner was being added to the preclusion list and that CMS imposed a 10‑year reenrollment bar.  CMS Ex. 5 at 2, 4; CMS Ex. 7 at 2, 4.

On October 14, 2021, the Maryland Board executed a Consent Order with Petitioner.  CMS Ex. 6.  By signing the Consent Order, Petitioner agreed to the terms of the Consent Order, including its findings of fact, conclusions of law, and order.  Id. at 2.  The findings of fact in the Consent Order are similar to the investigative findings in the May 14, 2021 Suspension Order.  Compare CMS Ex. 6 at 2-8 with CMS Ex. 13 at 1-7.  Petitioner waived any right to contest those findings of fact.²  CMS Ex. 6 at 11.  The order to which Petitioner consented required Petitioner to permanently cease performing any surgeries and placed his medical license on probation for a minimum of five years.  Id. at 8.

By letter dated October 15, 2021, Palmetto issued a letter notifying Petitioner that his Medicare enrollment and billing privileges in West Virginia were being revoked effective November 14, 2021, due to Petitioner’s noncompliance with 42 C.F.R. § 424.535(a)(9), (12), and (22).  CMS Ex. 4 at 1-2.  The letter informed Petitioner that he was being added to the preclusion list and that a 10-year reenrollment bar was being imposed.  Id. at 2, 4.

By letter dated November 22, 2021, the Maryland Department of Health notified Petitioner that the Maryland Medical Assistance program approved his request for enrollment as a Medicaid provider effective October 22, 2021.  CMS Ex. 3 at 1.

In a letter dated December 15, 2021, Petitioner requested reconsideration of Palmetto’s October 15, 2021 initial revocation determination.  CMS Ex. 2 at 1.  After being asked if Petitioner intended to request reconsideration of the three initial revocation determinations, Petitioner, via email dated January 25, 2022, confirmed that he was seeking reconsideration of all the initial revocation determinations.  Id. at 3.

In a reconsidered determination dated February 10, 2022, CMS’s Provider Enrollment & Oversight Group³  upheld the contractors’ revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9), (a)(12), and (a)(22).  CMS Ex. 1 at 4-11.  The reconsidered determination also upheld the placement of Petitioner on CMS’s preclusion list and the imposition of a 10-year reenrollment bar.  Id.

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Petitioner timely requested a hearing (RFH) before an administrative law judge to challenge the reconsidered determination.  The case was assigned to me, and on April 11, 2022, my office acknowledged Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  The Prehearing Order directed each party to file a prehearing exchange consisting of a brief and any supporting documents, including the written direct testimony of any proposed witnesses, and set forth the deadlines for those filings.  Prehearing Order ¶¶ 4-5.

In conformance with the Prehearing Order, CMS filed a brief and motion for summary judgment (CMS Br.) and 19 proposed exhibits (CMS Exs. 1‑19).  Petitioner did not object to CMS’s proposed exhibits.  In the absence of objection, I admit CMS Exs. 1-19 into the record.  Petitioner filed a brief and one proposed exhibit (P. Ex. 1).  P. Ex. 1 is Petitioner’s own written direct testimony.  CMS did not object to Petitioner’s proposed exhibit.  In the absence of objection, I admit P. Ex. 1 into the record.⁴

The Prehearing Order advised the parties that an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine a witness.  Prehearing Order ¶¶ 8-10; Civil Remedies Division Procedures §§ 16(b), 19(b); see Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross-examine those witnesses).  CMS did not offer any written direct testimony.  Petitioner offered his own testimony; however, CMS did not request to cross-examine Petitioner.  Because CMS did not request an opportunity to cross-examine Petitioner, an in-person hearing is unnecessary.  I therefore decide this case on the written record without considering whether the standard for summary judgment is met.  Prehearing Order ¶¶ 8‑10.  I deny CMS’s motion for summary judgment as moot.

II.    Issues

The issues in this case are:

1. Whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges; and
2. Whether CMS had a legal basis to place Petitioner on its preclusion list, as defined at 42 C.F.R. §§ 422.2 and 423.100.

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III.    Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(17) and (20), 498.5(l)(2) and (n)(2);⁵  see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

IV.    Discussion

A.    Statutory and Regulatory Background

The Act authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  Act § 1866(j) (42 U.S.C. § 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)).  To participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R §§ 424.505, 424.510.

The Secretary has delegated authority to revoke Medicare enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or a Medicare contractor may revoke an enrolled supplier’s Medicare enrollment and billing privileges for any of the reasons listed in 42 C.F.R. § 424.535.  After a supplier’s Medicare enrollment is revoked, the supplier is “barred from participating in the Medicare program from the effective date of the revocation until the end of the reenrollment bar.”  42 C.F.R. § 424.535(c)(1).  At the time of the initial determinations in this case, the length of the reenrollment bar ranged from one to ten years.  42 C.F.R. § 424.535(c)(1)(i).

Individuals and entities whose enrollment has been revoked and who are under a reenrollment bar may also, in certain circumstances, be placed on CMS’s preclusion list.  Medicare Advantage organizations and Medicare Part D plan sponsors may not provide reimbursement for any items or services furnished by an individual or entity on CMS’s preclusion list or for prescriptions individuals write.  42 C.F.R.§§ 422.2, 422.222, 422.224, 423.100, 423.120(c)(6).

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B.    Findings of Fact, Conclusions of Law, and Analysis⁶

1.    CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9) because he failed to notify the appropriate contractor within 30 days that his medical license had been suspended.⁷

Pursuant to 42 C.F.R. § 424.535(a)(9), CMS or its contractor may revoke a Medicare supplier’s enrollment and billing privileges if the supplier fails to comply with “the reporting requirements specified in [42 C.F.R.] § 424.516(d) . . . .”  The reporting requirements mandate that a supplier report to the appropriate CMS contractor “[a]ny adverse legal action” within 30 days.  42 C.F.R. § 424.516(d)(1)(ii).  A “final adverse action” includes, as relevant here, a “[s]uspension or revocation of a license to provide health care by any State licensing authority.”  42 C.F.R. § 424.502.  In exercising its discretion to revoke pursuant to 42 C.F.R. § 424.535(a)(9), CMS considers “(i) [w]hether the data in question was reported[;] (ii) [i]f the data was reported, how belatedly[;] (iii) [t]he materiality of the data in question[; and] (iv) [a]ny other information that CMS deems relevant to its determination.”  As explained below, I conclude that CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9).

Suppliers, such as Petitioner, must report any adverse legal action to their Medicare contractor within 30 days.  42 C.F.R. § 424.516(d)(1)(ii).  The “[s]uspension or revocation of a license to provide health care by any State licensing authority” is a reportable final adverse action.  42 C.F.R. § 424.502; Akram A. Ismail, M.D., DAB No. 2429 at 11 (2011).  Petitioner's medical license suspension on May 14, 2021, satisfies this definition and, as a result, Petitioner was obligated to report the suspension to his Medicare contractor within 30 days of May 14, 2021.

Petitioner does not dispute that the suspension of his medical license was an adverse legal action nor that he failed to inform his Medicare contractor of the suspension within 30 days of May 14, 2021.  Indeed, in his August 31, 2021 request for reconsideration, Petitioner conceded that he had failed to report this adverse action within the designated timeframe and attempted to report, belatedly, the summary suspension of his medical license.  CMS Ex. 8 at 2.  I take administrative notice that August 31, 2021 is 109 days

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after May 14, 2021, the date on which the Maryland Board summarily suspended Petitioner’s license.

In the August 31 reconsideration request, Petitioner explained that his failure to report was an “oversight and not done with any intent to withhold the information[.]”  CMS Ex. 8 at 2. However, this contention does not aid Petitioner.  Section 424.535(a)(9) does not require proof Petitioner intended to conceal the adverse legal action; it requires only that Petitioner failed to report, among other things, any adverse legal action within 30 days.  Therefore, regardless of Petitioner’s attempt to justify his failure to timely notify CMS of the suspension, Petitioner’s failure to report the summary suspension of his medical license within 30 days from the suspension is a legal basis for CMS to revoke his Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(9).

Petitioner nevertheless contends CMS erred in revoking Petitioner’s billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).  P. Br. at 7-8.  Petitioner first argues that 42 C.F.R. § 424.535(a)(9)(iv) requires CMS to consider factors beyond those enumerated in 42 C.F.R. § 424.535(a)(9)(i)-(iii) to determine whether to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).  Id. at 7.  Second, Petitioner implies that because his medical license was eventually reinstated, CMS no longer had a basis to revoke under section 424.535(a)(9).  See id. at 8.  Neither argument has merit.

Petitioner’s first argument, that CMS was required to consider factors beyond those listed in 42 C.F.R. § 424.535(a)(9)(i)-(iii), fails both factually and legally.  As a matter of fact, CMS’s reconsidered determination demonstrates that CMS considered factors in addition to those enumerated in the regulations.  The reconsidered determination notes that Petitioner was sanctioned by the West Virginia Board of Medicine as a fact CMS deems relevant.  CMS Ex. 1 at 5.  Thus, as directed in 42 C.F.R. § 424.535(a)(9)(iv), CMS considered another factor it deemed relevant.  Petitioner apparently takes issue with CMS’s analysis because CMS did not consider factors Petitioner deems relevant, including that Petitioner and counsel were working to rescind or modify Petitioner’s suspension, that Petitioner’s counsel reported the suspension albeit belatedly, and that the Maryland Board reinstated Petitioner’s license with restrictions.  P. Br. at 7-8.

However, as a matter of law, the regulation does not require CMS to defer to Petitioner’s judgment as to what factors are relevant.  Further, the regulation invests CMS ‒ and not the administrative law judge ‒ with the discretion to determine which factors are relevant.  Where, as here, there is a basis for revocation and CMS has evaluated the four factors and determined that it is appropriate to revoke, I do not have the authority to review CMS’s exercise of discretion.  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, an administrative law judge may not

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substitute his or her “discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.”).

As for Petitioner’s second argument, Petitioner seems to suggest that the fact that the Maryland Board reinstated his medical license (subject to five years’ probation) invalidates the basis for revocation under 42 C.F.R. § 424.535(a)(9).  See P. Br. at 7-8.  Petitioner points to no regulatory authority to support the implicit claim.  Contrary to Petitioner’s implication, it is well-settled law that an administrative law judge looks “at the immediate effect of [Petitioner’s] suspension rather than the possibility that the suspension may be lifted at some point.”  Ismail, DAB No. 2429 at 8.  Thus, the fact that Petitioner’s license was reinstated is irrelevant in determining whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).

Because I have concluded that CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9), I need not consider whether CMS also had other bases on which to revoke Petitioner’s enrollment.  See, e.g., Daniel Wiltz & Family Healthcare Clinic, APMC, DAB No. 2864 at 12 (2018) (if one legal basis for revocation is established, CMS’s action would be sustained “regardless of the existence of any additional bases for revocation.”).  I nevertheless conclude that CMS had at least one additional basis for revoking Petitioner’s enrollment, as I explain in the following section of this decision.

2.    CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(12) because he was terminated from participation in the Maryland Medicaid program and had exhausted all applicable appeal rights.

The regulations authorize CMS or its contractor to revoke a supplier’s Medicare enrollment and billing privileges when a “supplier is terminated, revoked or otherwise barred from participation in a State Medicaid program or any other federal health care program[,]” and the “supplier has exhausted all applicable appeal rights.”  42 C.F.R. § 424.535(a)(12).

In a letter dated July 26, 2021, the Maryland Department of Health notified Petitioner that it was terminating his participation in the Maryland Medicaid program.  CMS Ex. 9.  CMS confirmed with the Maryland Department of Health that Petitioner had exhausted all his appeal rights regarding termination from the Maryland Medicaid program.  CMS Ex. 1 at 6.  Accordingly, CMS had a legal basis to revoke Petitioner’s enrollment and billing privileges because he was terminated from the Maryland Medicaid program and that termination was administratively final.

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Petitioner does not dispute that he was terminated from participating in the Maryland Medicaid program, nor has Petitioner argued that he did not exhaust all his appeal rights.  See P. Br. at 3, 8.  Rather, Petitioner seems to contend that the reinstatement of his participation in the state Medicaid program invalidates the legal basis for revoking his Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(12).  P. Br. at 8.  Petitioner also contends, as he did in contesting the revocation of his Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(9), that CMS failed to analyze all the appropriate factors supporting revocation, as required by 42 C.F.R. § 424.535(a)(12)(A)-(C).  See P. Br. at 8.  Neither of these arguments has merit.

First, the decision to reinstate Petitioner in the Maryland Medicaid program is not an element that CMS must consider nor is grounds to overturn the revocation.  See 42 C.F.R. § 424.535(a)(12).  The regulation only states that CMS may revoke the supplier’s Medicare enrollment and billing privileges if the physician is “terminated, revoked or otherwise barred from participation in the State Medicaid program” and “the supplier’s appeal rights under state law have been exhausted.”  42 C.F.R. § 424.535(a)(12); Douglas Bradley, M.D., DAB No. 2663 at 15-16 (2015).  Nothing in the regulation suggests that reinstatement in the state Medicaid program is an element that CMS must consider, deprives CMS of its authority to revoke, or is grounds to overturn the revocation.  Moreover, the Maryland Medicaid reinstatement was effective only prospectively and did not erase, negate, rescind, or reverse the prior July 26, 2021 termination.  CMS Ex. 3; see Duke Ahn, M.D., DAB No. 3093 at 9-10 (2023).

Second, Petitioner contends the regulation requires CMS to consider more factors than those listed in the regulation in determining whether to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to section 424.535(a)(12)(i)(A)-(C).  P. Br. at 8.  For example, Petitioner argues that CMS was required to understand, fully, the reasons for the Medicaid termination; was required to consider that he was reinstated in the Maryland Medicaid program on October 22, 2021; and was required to consider “other relevant information to include the facts and circumstances surrounding care provided to the two patients at issue in the [Board of Physicians’ Consent Order].”  Id.  I reject this argument for the same reasons discussed in the previous section of this decision.

As was true of CMS’s reconsidered determination affirming revocation pursuant to 42 C.F.R. § 424.535(a)(9), the reconsidered determination affirming revocation pursuant to 42 C.F.R. § 424.535(a)(12) explicitly discusses the regulatory factors.  CMS Ex. 1 at 6.  I note specifically that CMS acknowledges Petitioner’s license was reinstated but nevertheless concludes that the restrictions placed on his license weigh in favor of revocation.  Id.  As discussed above, I do not have the authority to review CMS’s exercise of discretion to revoke once I have concluded that there is a basis for revocation.   Ahmed, DAB No. 2261 at 19.

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Because I have concluded that CMS had a legal basis to revoke Petitioner’s enrollment and billing privileges under 42 C.F.R. § 424.535(a)(12), I do not have the authority to review CMS’s exercise of discretion to revoke Petitioner’s Medicare enrollment and billing privileges.

3.    It is unnecessary to determine whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(22).

Because I have concluded that CMS had a legal basis to revoke Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(9) and (a)(12), based on his failure to report his May 14, 2021 license suspension and based on his termination from participation in the Maryland Medicaid program, I need not decide whether there is also a basis to revoke Petitioner’s Medicare enrollment under section 424.535(a)(22).  See, e.g., Wiltz, DAB No. 2864 at 12.  Accordingly, I do not decide whether CMS had a legal basis to revoke Petitioners’ Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(22).

4.    I have no jurisdiction to adjudicate the 10-year reenrollment bar.

“After a . . . supplier has had [his] enrollment revoked, [he] is barred from participating in the Medicare program from the effective date of the revocation until the end of the reenrollment bar.”  42 C.F.R. § 424.535(c).  The imposed reenrollment bar must last at least one year, but it must not exceed 10 years except under circumstances not present in the case.  In this case, since I have determined that Petitioner had a legal basis under 42 C.F.R. §§ 424.525(a)(9) and (12) to revoke Petitioner’s Medicare enrollment and billing privileges, CMS was authorized and required to impose a reenrollment bar in accordance with 42 C.F.R. § 424.535(c).

Petitioner argues that the “imposition of any re-enrollment bar, regardless of length, was made in error as CMS failed to properly consider all relevant facts and failed to follow the guidance set forth in 42 C.F.R. § 424.535(a)(9) and (12).”  P. Br. at 9.  In other words, Petitioner argues that because CMS had no legal basis to revoke Petitioner’s Medicare enrollment and billing privileges, CMS had no authority to impose a reenrollment bar.

In the previous sections of this decision, I have explained why I conclude that CMS had a legal basis to revoke Petitioner’s Medicare enrollment.  For the same reasons, I reject Petitioner’s argument that there is no basis to impose a reenrollment bar.  Moreover, Petitioner is not entitled to administrative review of CMS’s decision concerning the length of a post-revocation reenrollment bar because that decision is not an “initial determination” described in 42 C.F.R. § 498.3(b).  Vijendra Dave, M.D., DAB No. 2672 at 10-11 (2016).  I therefore have no authority to review the length of Petitioner’s reenrollment bar.  Id.

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5.    CMS had a legal basis to add Petitioner to the preclusion list effective February 10, 2022.

As applicable to this case, each of the following three requirements must be met for CMS to include an individual or entity on its preclusion list:

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in [42 C.F.R.] § 424.535(a)(3) of this chapter.

(ii) The individual or entity is currently under a reenrollment bar under [42 C.F.R.] § 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 making this determination . . . , 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 . . . .

42 C.F.R. § 422.2; see also 42 C.F.R. § 423.100 (definitions of preclusion list).

Here, the regulatory requirements for Petitioner’s inclusion on CMS’s preclusion list have been met.  At the time CMS made its preclusion list determination on February 10, 2022, Petitioner was “revoked from Medicare” under 42 C.F.R. § 424.535(a)(9), (a)(12), and (a)(22) and was under a reenrollment bar pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 1.  Additionally, CMS determined that the underlying conduct was detrimental to the best interests of the Medicare program.  Id. at 9-11.

Petitioner does not dispute that his Medicare billing privileges have been revoked or that he is under a reenrollment bar.  However, Petitioner contends that CMS did not have a legal basis to include Petitioner on the preclusion list because it did not have a legitimate basis to revoke his Medicare billing privileges under 42 C.F.R. § 424.535(a)(9), (a)(12), and (a)(22) and disputes that “any of his conduct at issue is somehow detrimental to the Medicare program”.  P. Br. at 9; RFH at 6.  Petitioner’s arguments have no merit.

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As for Petitioner’s first argument, in the prior sections of this decision, I have considered and rejected Petitioner’s arguments that CMS improperly revoked Petitioner’s Medicare enrollment and billing privileges.  Further, the preamble to the preclusion regulation makes clear that a preclusion list appeal does not provide the supplier another opportunity to challenge the underlying revocation of enrollment and billing privileges:

We note, however, that the appeals process is intended to permit a [supplier] to challenge CMS’ placement of the [supplier] on the list and not to challenge the underlying reason for the revocation . . . that led to the preclusion list inclusion.  Indeed, the preclusion appeals process would neither include nor affect appeals of payment denials or enrollment revocations, for there are separate appeals processes for these actions.  Any appeal under this . . . provision will be limited strictly to the individual’s inclusion on the preclusion list.

83 Fed. Reg. at 16,663 (emphasis added).

As for Petitioner’s second argument, it is not clear to me that, in reviewing CMS’s decision to place a provider or supplier on the preclusion list, I am authorized to evaluate how CMS applied the factors enumerated in 42 C.F.R. §§ 422.2 and 423.100.  In other contexts, appellate decisions of the DAB have emphasized that, where the regulations grant CMS discretion to determine that a provider or supplier’s underlying conduct is detrimental to Medicare, I may not substitute my own determination for that of CMS.  Brian K. Ellefsen, DO, DAB No. 2626 at 7 (2015); Pa. Physicians, P.C., DAB No. 2980 at 13 (2019).  Moreover, I may presume that CMS properly discharged its duty under the regulations absent “clear evidence to the contrary.”  Ellefsen, DAB No. 2626 at 7 (internal quotation marks omitted) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)); see also Bradley, DAB No. 2663 at 14.  I need not decide the scope of CMS’s discretion in preclusion cases to resolve this case, however, because even if I were authorized to review CMS’s determination that Petitioner’s underlying conduct is detrimental to the best interests of the Medicare program, I would find CMS’s evaluation of the regulatory factors reasonable.

Consistent with regulatory factor (A), CMS determined the conduct underlying Petitioner’s revocation was serious.  CMS Ex. 1 at 10-11.  CMS concluded that Petitioner’s underlying conduct was serious because he failed to understand and comply with program requirements, he was terminated from a state Medicaid program, he disregarded patient safety, and his conduct led to patient harm.  Id.  Petitioner contends that his conduct did not lead to patient harm.  RFH at 7.  Petitioner’s argument ignores facts to which he agreed to be bound when he signed the Consent Order with the Maryland Board.  For example, the Maryland Board found that Petitioner caused trauma

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to a patient’s bladder when he had difficulty cannulating the patient’s ureter and was unable to locate the ureteral orifice in the bladder.  CMS Ex. 6 at 5 (¶ 12).  This caused trauma to the bladder and the patient required hospitalization to treat the patient’s hematuria.  Id.  As part of the Consent Order, Petitioner waived the right to contest the Board’s findings of fact and conclusions of law.  Id. at 11.  I therefore accord no weight to Petitioner’s assertion that the conduct underlying his revocation did not cause patient harm.⁸  Petitioner did not offer evidence or argument to rebut CMS’s conclusion that Petitioner’s conduct was serious because it shows he failed to understand and comply with his reporting obligations as a Medicare supplier.

After evaluating the seriousness of the underlying conduct, CMS evaluated the degree to which Petitioner’s conduct could affect the integrity of the Medicare program, in accordance with regulatory factor (B).  CMS concluded Petitioner’s conduct put the Medicare Trust Fund at risk because outdated or incorrect information concerning a supplier’s eligibility may result in incorrect payments.  CMS Ex. 1 at 10.  Petitioner suggests that “there is no risk to Medicare beneficiaries at all as Petitioner has voluntarily agreed to limit the scope of his practice.”  RFH at 7.  Contrary to Petitioner’s argument, the relevant inquiry is whether Petitioner’s conduct could affect the integrity of the Medicare program as a whole, not whether Petitioner poses a risk only to Medicare beneficiaries.  42 C.F.R. § 422.2.  The fact that Petitioner agreed to limit the scope of his practice does not remove or mitigate the risk Petitioner may pose to the financial integrity of the Medicare program by failing to comply with his reporting obligations and to keep his enrollment data up to date.  Cf. Letantia Bussell, M.D., DAB No. 2196 at 12 (2008) (“[I]rresponsible handling of federal funds by any physician could affect the availability of care for all beneficiaries . . . .  [Accordingly,] [t]he quality of [a physician’s] care is simply not relevant to . . . whether [conduct] is detrimental to the best interests of Medicare beneficiaries as a whole.”).

Finally, Petitioner argues that CMS should have considered that his medical license and participation in Maryland Medicaid had been reinstated because those facts represent

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other relevant evidence within the meaning of regulatory factor (C).  RFH at 7.  As discussed above, that Petitioner regained his medical license (with restrictions) and his right to participate as a provider in Maryland Medicaid do not eliminate the basis for revoking his Medicare enrollment.  I see no reason to apply a different standard to Petitioner’s inclusion on the preclusion list.  Moreover, factor (C) only requires CMS to consider factors that it, i.e., CMS, deems relevant, not that Petitioner deems relevant.  Further, the reconsidered determination does not show that CMS refused to consider that Petitioner’s medical license and Medicaid provider status were reinstated; rather, CMS determined that those facts did not outweigh other factors.  See, e.g., CMS Ex. 1 at 6.  The regulations do not dictate the weight CMS should give to any particular factor in deciding to place a supplier on the preclusion list.  Thus, Petitioner has not shown that CMS failed to evaluate the factors enumerated in 42 C.F.R. §§ 422.2 and 423.100.

In sum, Petitioner’s arguments do not persuade me to set aside CMS’s determination to place Petitioner on its preclusion list.  CMS had a legal basis to place Petitioner on the preclusion list pursuant to the above cited authority.

6.    Petitioner’s arguments in equity are not bases to reverse the revocation of Petitioner’s Medicare enrollment and billing privileges or the inclusion of Petitioner on CMS’s Preclusion List.

Although Petitioner asserts that he is not requesting equitable relief (P. Br. at 7), much of his argument appears premised on his belief that revocation of his Medicare enrollment and billing privileges and his placement on the preclusion list are unfair or disproportionate to his conduct.  As such, the arguments sound in equity.  However, such general appeals to equity are not a basis to set aside the revocation or reverse Petitioner’s placement on the preclusion list.  CMS’s discretionary act to revoke a supplier is not subject to review based on equity or mitigating circumstances.  Lorrie Laurel, PT, DAB No. 2524 at 7 (2013) (citing Bussell, DAB No. 2196 at 12-13). Rather, “the right to review of CMS’s determination by an [administrative law judge] serves to determine whether CMS had the authority to revoke [the provider’s or supplier’s] Medicare billing privileges, not to substitute the [administrative law judge’s] discretion about whether to revoke.”  Bussell, DAB 2196 at 13 (emphasis in original).  Furthermore, I may not set aside the lawful exercise of discretion by CMS or its contractor based on principles of equity.  Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016), appeal dismissed, Cent. Kan. Cancer Inst. v. Dep’t of Health & Human Servs., No. 2:17-cv-02012 (D. Kan. June 2, 2017); see also US Ultrasound, DAB No. 2302 at 8 (2010).

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V.    Conclusion

For the foregoing reasons, I affirm CMS’s actions revoking Petitioner’s Medicare enrollment and billing privileges and placing Petitioner on CMS’s preclusion list.

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Endnotes

¹  The October 15, 2021 revised initial determination states that it was revising the prior correspondence dated July 29, 2021.  CMS Ex. 5 at 1.  This seems to be an error because there is no prior July 29, 2021 correspondence.  The prior correspondence is dated June 29, 2021.  CMS Ex. 11 at 1.

²  Petitioner contends that the Consent Order “was not an agreed upon stipulation of all relevant facts.”  Petitioner’s Brief (P. Br.) at 8.  While the Consent Order may not have used the term “stipulation” Petitioner nevertheless agreed to be bound by the facts stated in the order.  CMS Ex. 6at 11.  As such, the fact that Petitioner did not enter into a “stipulation” is a distinction without a difference.

³  The Provider Enrollment & Oversight Group is a component of CMS itself, not an administrative contractor.

⁴  The good-cause requirement imposed by 42 C.F.R. § 498.56(e) does not apply to testimonial evidence that is submitted in written form in lieu of live in-person testimony because it is not documentary evidence within the meaning of the regulation.  HeartFlow, Inc., DAB No. 2781 at 19 n.13 (2017).

⁵  Effective June 15, 2018, CMS amended 42 C.F.R. part 498 to add subsections 498.3(b)(20) and 498.5(n) (specifying that inclusion on the preclusion list is an initial determination and authorizing appeal rights for such determinations).  83 Fed. Reg. 16,440, 16,757 (Apr. 16, 2018).

⁶  My findings of fact and conclusions of law are set forth in italics and bold font.

⁷  Although Petitioner also failed to report that the State of Maryland terminated his participation as a Medicaid provider, I do not rely on this failure in determining that CMS had a basis to revoke Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(9).

⁸  Although I do not rely on 42 C.F.R. § 424.535(a)(22) as establishing a basis to revoke Petitioner’s Medicare enrollment or place him on the preclusion list, I find that the facts which led the Maryland Board to suspend Petitioner’s medical license and the Maryland Medicaid program to terminate him as a provider are the same as the facts on which the revocation pursuant to 42 C.F.R. § 424.535(a)(22) relies.  Those facts led the Maryland Board to conclude that Petitioner was not competent to practice urological surgery.  CMS Ex. 6 at 7-8 (¶¶ 19‑21 and Conclusions of Law).  Thus, all the revocation and preclusion actions proceeded from the same set of facts.  Moreover, Petitioner’s assertion that his conduct did not cause harm to any patient (see, e.g., RFH at 4-5) amounts to an attempt to relitigate the proceedings before the Maryland Board.  As I have explained above, suppliers may not challenge the underlying basis for revocation when appealing their inclusion on the preclusion list.  83 Fed. Reg. at 16,663.