Sandeep S. Sohal, MD, PC, DAB CR6395 (2023)

DECISION

Wisconsin Physicians Service Insurance Corporation (WPS), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Sandeep S. Sohal, MD, PC, pursuant to 42 C.F.R. § 424.535(a)(17) because Petitioner has an existing debt that CMS had referred to the Department of Treasury (Treasury).  WPS also placed Petitioner on CMS’s Preclusion list.  CMS upheld these determinations.  I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges and its placement on the Preclusion List.

I.  Background and Procedural History

Petitioner is a medical practice.  CMS Ex. 7 at 11, 17.  Petitioner reported in its April 2010 enrollment application that Dr. Sandeep S. Sohal (Dr. Sohal) provided “services in patients’ homes” and “house calls only.” CMS Ex. 7 at 17, 21. 

On October 12, 2017, AdvanceMed, a Unified Program Integrity Contractor (UPIC) for CMS, notified Petitioner that its Medicare payments had been suspended “based on, but not limited to, [its] continued failure to provide documentation for patients as required after multiple medical records requests.”  CMS Ex. 8 at 1.  The UPIC reported that

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Petitioner had failed to respond to a request for medical records that was initially sent on October 1, 2015, which resulted in the denial of 40 claims on January 14, 2016.  CMS Ex. 8 at 1.  The UPIC further reported that Petitioner failed to respond to a June 16, 2017 request for the medical records, despite its follow-ups on this request via both telephone and correspondence.  CMS Ex. 8 at 1.  The UPIC included a “list of sample claims” that had been denied because no documentation had been submitted.  CMS Ex. 8 at 2.

In subsequent correspondence on April 10, 2018, the UPIC notified Petitioner that it had completed a Medicare Program Integrity Post-Payment Review in which it determined that Petitioner had been “overpaid by Medicare in the amount of $574,348.00.”  CMS Ex. 3 at 1.  The UPIC detailed Petitioner’s history of noncompliance with requests for medical records, noting that Petitioner’s Medicare payments had been suspended beginning on October 12, 2017.  CMS Ex. 3 at 4.  The UPIC explained that it had sent another request for medical records on October 12, 2017, and that it “resent the request for medical records for the Statistical Sampling for Overpayment Estimation (SSOE) of claims with paid dates from November 15, 2013 – September 21, 2017.”  CMS Ex. 3 at 4.  In its discussion of the overpayment determination, the UPIC explained that it “constructed a statistically valid random sample of claims for overpayment estimation with paid dates from November 15, 2013 – September 21, 2016,” and that it “reopened the claims in accordance with 42 C.F.R. § 405.980, based on the oldest paid date in the sample of November 15, 2013, and requested all medical records and supporting documentation from the Sohal MD PC that supports the billing of the selected sample claims.”  CMS Ex. 3 at 4.  The UPIC reported that “[s]even of the requested medical records from the SSOE of claims were received on January 2, 2018,” and that “[m]edical review of the claims from the SSOE resulted in a 100% denial rate and an extrapolated overpayment of $574,348.00.”  CMS Ex. 3 at 4.  The UPIC stated that “[t]he medical review for program integrity purposes was conducted using any and all documentation submitted by [Petitioner].”  CMS Ex. 3 at 7.  The UPIC explained the following: 

Based on the findings in this review, AdvanceMed has determined just cause in requesting an overpayment.  Pursuant to Section 1893(f)(3) of the Social Security Act [42 U.S.C. § 1395ddd(f)(3)] statistical extrapolation was requested on all codes paid during the time period of November 15, 2013 through September 21, 2017.  The decision to extrapolate is predicated on the finding of a high or sustained level of payment error.  As a result of our findings, AdvanceMed has determined that a sustained or high level of payment error exists.  The error rate was determined as:  100%.  The error rate determination is based on the facts presented through this investigation, including, but not limited to:  the medical review determinations and data analysis.  As a result of our findings we have determined that you have been overpaid by Medicare in the amount of $574,348.00.

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CMS Ex. 3 at 8 (italics and bold in original).  The UPIC also explained the following:

AdvanceMed identified numerous billing errors on behalf of the Sohal MD PC.  The review found multiple claims where there was no indication that the beneficiaries were unable to visit the physician’s office or an outpatient clinic.  There was no documentation that supported that the home visit was reasonable and necessary. The majority of the services were denied as no documentation was submitted to support the service was actually rendered. 

CMS Ex. 3 at 11 (italics in original).  The UPIC informed Petitioner that it would be notified at a later date regarding the overpayment due and the “appeal options available.”  CMS Ex. 3 at 11. 

In a separate letter issued on April 10, 2018, the UPIC notified Petitioner that CMS had directed it to terminate the payment suspension that had been in effect for its Medicare payments.  CMS Ex. 8 at 4.  The UPIC’s letter referenced its separate letter notifying Petitioner of the results of its claims review and overpayment determination, and again explained that a different Medicare administrative contractor would issue the overpayment demand letter and information regarding “appeal rights and process.”  CMS Ex. 8 at 4.  

On May 22, 2018, WPS, acting on behalf of CMS, notified Petitioner that it had received a Medicare payment in error that resulted in an overpayment in the amount of $574,348.00.  CMS Ex. 4 at 1.  WPS informed Petitioner that it could file a rebuttal within 15 days, which is “the opportunity, before the suspension of payment, offset, or recoupment takes effect, to submit any statement (to include any pertinent information) as to why it should not be put into effect on the date specified in the notice.” CMS Ex. 4 at 2.  WPS also informed Petitioner that “if you disagree with this overpayment decision, you may file an appeal.”  CMS Ex. 4 at 4.  WPS explained that “[t]he first level of appeal is called a redetermination,” and that it “must file [its] request for a redetermination 120 days from the date of this letter.”  CMS Ex. 4 at 4.  WPS informed Petitioner that in order to avoid recoupment, a request for redetermination must be filed within 30 days.  CMS Ex. 4 at 4. 

Shortly thereafter, on May 31, 2018, WPS informed Petitioner that its Medicare enrollment had been revoked effective June 29, 2018, pursuant to 42 C.F.R. § 424.535(a)(10), based on its failure to provide access to documentation, specifically, certain records requested by AdvanceMed on January 10 and March 7, 2018. CMS Ex. 1.3 at 1.  On September 20, 2018, CMS rescinded its revocation determination.¹  CMS Ex. 1.4.

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Petitioner submitted a rebuttal statement dated June 5, 2018.  CMS Ex. 1.5.  In a letter dated June 18, 2018, WPS informed Petitioner that it had “failed to provide a valid reason as to why the recoupment of the overpayment should not be initiated/continue, [its] request to prevent/stop recoupment has been denied.”  CMS Ex. 11. WPS explained, “[t]o avoid recoupment, an appeal request must be received in our office by 6/20/2018,” and that Petitioner should “clearly indicate that [it is] appealing an overpayment and that [it is] requesting a redetermination.”  CMS Ex. 11. Petitioner did not file an appeal.²  See CMS Exs. 4 at 4 (providing appeal rights, to include the timeframe and address for the submission of a request for redetermination); 12 at 5 (CMS’s statement that Petitioner “elected to not appeal the overpayment by filing a redetermination”); see, e.g., 42 C.F.R. § 405.904(a)(2) (outlining the five levels of the Medicare claims appeal process). 

On July 26, 2018, WPS informed Petitioner that its outstanding debt had a balance of $578,940.52 (including interest).  CMS Ex. 5 at 1.  WPS explained that in the approximately two months since it had notified Petitioner of its overpayment, it had not received payment, an appeal request, or an application for an extended repayment schedule.  CMS Ex. 5 at 1.  WPS further explained that Petitioner’s debt was delinquent, and that its debt may be referred to Treasury’s Debt Collection Center (DCC).  CMS Ex. 5 at 1.  WPS informed Petitioner that, within 60 days, it could submit evidence that all or part of the debt is not past due or legally enforceable, and that if it did not receive any such evidence, the debt “shall be referred to the Department of Treasury or its designated DCC for cross servicing/offset.”  CMS Ex. 5 at 3. 

On October 8, 2018, Treasury notified Petitioner that CMS had referred its unpaid debt in the amount of $594,456.25 for collection.  CMS Ex. 6 at 1; see CMS Ex. 12 at 4 (reconsidered determination reporting that CMS referred the debt on October 5, 2018).  In a January 2019 dispute resolution notice forwarded to CMS, Treasury reported that

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Petitioner had claimed to Treasury that CMS’s September 20, 2018 notice revoking its revocation “rescinded the actions causing the false report of overpayment.”  CMS Ex. 9 at 3.  In its response to Treasury, WPS provided a copy of the overpayment initial determination to Treasury.  CMS Ex. 10; see CMS Ex. 4.  WPS reported that this documentation served as “Proof of Debt.”  CMS Ex. 10 at 2. 

On January 24, 2023, CMS notified Petitioner that its Medicare enrollment would be revoked, effective February 23, 2023, pursuant to 42 C.F.R. § 424.535(a)(17).  CMS Ex. 2 at 1.  CMS explained that Petitioner had “an existing uncollected debt, totaling in the amount of approximately $828,663.09 that [CMS] appropriately referred to the United States Department of Treasury.”  CMS Ex. 2 at 1.  CMS also informed Petitioner that, pursuant to 42 C.F.R. §§ 422.2 and 422.222, it had been added to CMS’s Preclusion List.  CMS Ex. 2 at 1.  CMS further informed Petitioner that it had established a 10-year bar to re-enrollment. CMS Ex. 2 at 3.

Petitioner submitted a request for reconsideration via email on March 27, 2023.  CMS Ex. 1 at 6.  Without any supporting rationale, Petitioner argued that the rescission of the May 31, 2018 revocation action had somehow nullified the May 22, 2018 overpayment determination.  See CMS Ex. 1 at 7.

On May 9, 2023, CMS issued a reconsidered determination that upheld Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(17).  CMS determined that Petitioner had an existing debt of $828,663.09 at the time of issuance of the January 2023 revocation notice. CMS Ex. 12 at 6.  CMS explained that it “systematically refers debts to Treasury when a debt is delinquent for 96 calendar days (126 calendar days from the date of the initial demand letter) unless it is in an excluded status.”  CMS Ex. 12 at 6.  CMS noted that the initial demand letter for Petitioner’s debt was issued on May 22, 2018, and the debt became delinquent after 30 calendar days. CMS Ex. 12 at 6-7.  CMS further explained that a debt is eligible for referral to Treasury after 90 days, and therefore, the debt became eligible for referral to Treasury on September 20, 2018.  CMS Ex. 12 at 7.  CMS reported it had referred the debt to Treasury on October 5, 2018, and on October 8, 2018, Treasury notified Petitioner that its unpaid debt had been referred for collection.  CMS Ex. 12 at 7.

In considering the factors outlined in section 424.535(a)(17), CMS explained the following:

Regarding factor (i), CMS is not aware of the reason or reasons for [Petitioner’s] failure to fully repay its debt.  As stated above, [Petitioner] contests the overpayment amount and methodology utilized in determining the overpayment amount.  While CMS construes [Petitioner’s] disagreement with the overpayment amount as a possible reason for failing to repay the debt, as [Petitioner] had the opportunity to appeal the overpayment, CMS

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does not find [Petitioner’s] disagreement with the overpayment amount to be a convincing reason for failing to repay the debt.

Regarding factor (ii), CMS has confirmed that [Petitioner] has not attempted to repay its debt, but there was a total of $10,143.15 in automatic offsets to interest based on payments made in December 2018.

Regarding factor (iii), [Petitioner] has submitted various correspondence in response to CMS and Medicare contractor requests, but none have been an attempt to repay the debt.  These submissions include:  (1) its appeal of the revocation of its Medicare enrollment in May 2018 under § 424.535(a)(10), resulting in the rescission of its enrollment revocation, which [Petitioner] mistakenly believed also resolved the overpayment at issue; (2) a rebuttal letter dated June 5, 2018 from [Petitioner] to WPS, disputing the overpayment, which WPS denied on June 18, 2018; (3) the dispute filed with Treasury in January 2019; and (4) the September 1, 2020 request to reopen the overpayment submitted to WPS.  No additional communication regarding the debt has been received by CMS from [Petitioner].  While CMS and its contractors have received multiple requests and inquiries from [Petitioner] regarding its overpayment, [Petitioner] did not attempt to repay its debt nor did it avail itself of the applicable appeals process for contesting the overpayment and claims at issue outside of submitting a rebuttal.  As a result, CMS does not find [Petitioner’s] continuing stance that the overpayment is invalid or incorrect to be persuasive.  

Regarding factor (iv), [Petitioner] was under a Medicare payment suspension from October 10, 2017 through April 10, 2018. . . .  

Regarding factor (v), the debt amount at the time the initial determination was issued was $828,663.09, which CMS considers to be a substantial debt as it is more than eight hundred thousand dollars and continuing to accrue interest. . . . 

Regarding factor (vi), CMS finds it relevant that for more than four years from the date its debt was first referred to Treasury for collection, [Petitioner] has not repaid its debt, but rather has continued to allow its debt to accrue interest while attempting to maintain its enrollment in the Medicare program.  As a result, [Petitioner’s] debt has increased from $594,456.25 at the time of referral in 2018 to $828,663.09 in January 2023. In considering all of the relevant factors in conjunction with the specific facts and circumstances surrounding [Petitioner’s] delinquent debt, CMS finds that [Petitioner’s] Medicare enrollment was appropriately revoked

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under § 424.535(a)(17).  As a result, CMS upholds the revocation of [Petitioner’s] Medicare enrollment as it relates to § 424.535(a)(17).

CMS Ex. 12 at 7-8 (internal citations omitted).  CMS also upheld the 10-year bar to re-enrollment.  CMS Ex. 12 at 8.

Additionally, CMS upheld Petitioner’s placement on its Preclusion List, explaining that because it had upheld Petitioner’s revocation, which was for a reason other than 42 C.F.R. § 424.535(a)(3), along with the 10-year bar to re-enrollment, “the first two requirements for [Petitioner] to be included on the CMS Preclusion List have been met.”  CMS Ex. 12 at 9.  CMS also determined that the conduct that led to the revocation was detrimental to the best interests of the Medicare program.  CMS Ex. 12 at 9-10. 

Dr. Sohal, on behalf of Petitioner, filed a request for an administrative law judge (ALJ) hearing on July 6, 2023.  Thereafter, the Civil Remedies Division acknowledged receipt of Petitioner’s request for hearing and issued my Standing Pre-Hearing Order (Pre-Hearing Order) directing the parties to file pre-hearing exchanges in accordance with specific requirements and deadlines.  CMS filed a combined motion for summary judgment and pre-hearing brief, along with 17 proposed exhibits (CMS Exs. 1, 1.1, 1.2, 1.3, 1.4, 1.5, 2-12).³  Petitioner filed a pre‑hearing brief in which it requested summary judgment⁴ (P. Br.) and two exhibits (P. Exs. 1-2).⁵

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On October 4, 2023, Petitioner, through Dr. Sohal, filed a motion for the issuance of a subpoena in which it requested documents that included “Inspector General complaints,” “full employment records,” identity of university or community college with records and transcripts,” and “identity of high school with transcripts and GPA records, S.A.T. scores, and A.C.T. scores,” and a “immediate psychiatric evaluation” of government agents and officials involved in this matter in which it alleged that certain individuals had engaged in “lying, cheating, stealing, and defrauding” and had committed “unconscionable criminal activity” and a “crime spree of illegal activity.”⁶  In an order dated October 6, 2023, I denied Petitioner’s request for the issuance of a subpoena, explaining the following:

Pursuant to 42 C.F.R. § 498.58(a), I may issue a subpoena for the production of witnesses or documents if I conclude that it is “reasonably necessary for the full presentation of a case.”  The issues before me involve whether CMS had a legitimate basis to revoke Petitioner’s enrollment pursuant to 42 C.F.R. § 424.535(a)(17) and whether CMS had a legitimate basis to place Petitioner on its Preclusion List. Petitioner has neither specified the pertinent facts it expects to establish through the issuance of a subpoena, nor has Petitioner indicated why those facts could not be established without the issuance of a subpoena.  42 C.F.R. § 498.58(c)(3).  Inasmuch as the documents requested by Petitioner are irrelevant and immaterial to the issues before me, and Petitioner has not stated how  pertinent facts could not be established without the issuance of a subpoena, I DENY Petitioner’s requests for a subpoena.

I further explained that Petitioner “has not identified any authority that allows for an administrative law judge to compel a psychiatric examination of any individual, presumably because there is no such authority.”⁷  Contemporaneous with the issuance of

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this decision, I have directed the attorney who is assisting with this matter to upload to DAB E-File the email correspondence that she has received from Dr. Sohal.

Neither party has submitted the written direct testimony of any witnesses, and therefore a hearing for the purpose of cross-examination of witnesses is unnecessary.  Pre‑Hearing Order §§ 12-14.  I consider the record to be closed and the matter ready for a decision on the merits.⁸

II.  Issue

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(17).

Whether CMS had a legitimate basis to place Petitioner on its Preclusion List pursuant to 42 C.F.R. §§ 422.2.

III.  Jurisdiction

I have jurisdiction to hear and decide these issues.  42 C.F.R. §§ 498.1(g), 498.3(b)(17)(i) and (20), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

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

1. Petitioner is a medical practice. 
2. On October 12, 2017, a UPIC notified Petitioner that its Medicare payments had been suspended “based on, but not limited to, [its] continued failure to provide documentation for patients as required after multiple medical records requests.”
3. On April 10, 2018, a UPIC conducted a Medicare Program Integrity Post-Payment Review in which it “constructed a statistically valid random sample of claims for overpayment estimation with paid dates from November 15, 2013 – September 21, 2016.”

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4. The UPIC “identified numerous billing errors” and reopened claims dating back to November 15, 2013, and determined that Petitioner had been overpaid by Medicare in the amount of $574,348.00. 
5. On May 22, 2018, a Medicare administrative contractor notified Petitioner that it had received $574,348.00 in error and requested repayment of the overpayment, at which time the contractor explained both the rebuttal and appeals processes. 
6. Petitioner filed a rebuttal, and on June 18, 2018, the Medicare administrative contractor notified Petitioner that it “failed to provide a valid reason as to why the recoupment of the overpayment should not be initiated/continue[d] [and its] request to prevent/stop recoupment has been denied,” at which time it advised Petitioner how it could timely file an appeal. 
7. After Petitioner did not file an appeal, CMS, on July 26, 2018, notified Petitioner that it intended to refer its delinquent debt to Treasury for collection, and after 60 days, if it did not receive evidence that the debt is not owed or legally enforceable, it would refer the debt to Treasury.  
8. On October 8, 2018, Treasury notified Petitioner that its debt, then totaling $594,456.25, had been referred for immediate collection. 
9. During the pendency of the referral of Petitioner’s overpayment to Treasury, WPS, on May 31, 2018, revoked Petitioner’s Medicare enrollment based on a failure to respond to January 10 and March 7, 2018 requests for records.  CMS rescinded that revocation on September 20, 2018. 
10.  On January 24, 2023, WPS notified Petitioner that it was revoking Petitioner’s enrollment pursuant to 42 C.F.R. § 424.535(a)(17) based on its existing uncollected debt totaling approximately $828,663.09 that had been referred to Treasury.  WPS also placed Petitioner on CMS’s Preclusion List. 
11.  Because Petitioner has an uncollected debt that was appropriately referred to Treasury, and CMS considered the six factors outlined in 42 C.F.R. § 424.535(a)(17), CMS had a legitimate basis to uphold the revocation of Petitioner’s enrollment. 
12. The length of a bar to re-enrollment is not reviewable.

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13. Because Petitioner’s Medicare enrollment has been revoked and it has been barred from re-enrollment, and CMS determined that the  conduct underlying its revocation is detrimental to the best interests of the Medicare program, CMS had a legitimate basis to uphold Petitioner’s placement on its Preclusion List pursuant to 42 C.F.R. § 422.222.

CMS was authorized to revoke Petitioner’s enrollment.

Petitioner is a supplier for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202 (definition of Supplier).  CMS may revoke a supplier’s Medicare billing privileges for any of the reasons stated in 42 C.F.R. § 424.535(a).  When CMS revokes a supplier’s Medicare billing privileges, CMS establishes a re-enrollment bar that lasts from one to ten years.  42 C.F.R. § 424.535(c).  Generally, a revocation becomes effective 30 days after CMS mails the initial determination revoking Medicare billing privileges.  42 C.F.R. § 424.535(g).

The Departmental Appeals Board (DAB) has explained that CMS “may have discretion to consider unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” but that “its role (and the role of [ALJs]) is limited to deciding whether CMS has a permissible ‘legal basis’ for revocation.”  Care Pro Home Health, Inc., DAB No. 2723 at 9 fn.8 (2016).  Thus, the scope of my review is whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, and not whether I would make the same determination in the first instance.

Pursuant to 42 C.F.R. § 424.535(a)(17), when a supplier has an existing debt that CMS appropriately refers to Treasury, CMS, in determining whether revocation is appropriate, considers the following factors:

(i) The reason(s) for the failure to fully repay the debt (to the extent this can be determined). 

(ii) Whether the provider or supplier has attempted to repay the debt (to the extent this can be determined). 

(iii) Whether the provider or supplier has responded to CMS’[s] requests for payment (to the extent this can be determined). 

(iv) Whether the provider or supplier has any history of final adverse actions or Medicare or Medicaid payment suspensions. 

(v) The amount of the debt.

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

42 C.F.R. § 424.535(a)(17)(i)-(vi).  As discussed below, CMS was authorized to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(17) because Petitioner “has an existing debt that CMS appropriately refer[red] to the United States Department of Treasury.”

Petitioner did not request a redetermination of a $574,348.00 overpayment that was the subject of the May 2018 initial determination and remains outstanding, and that determination is final and unappealed.

On April 10, 2018 , the UPIC notified Petitioner of its Medicare Program Integrity Post-Payment Review in which it determined that Petitioner had been “overpaid by Medicare in the amount of $574,348.00.”  CMS Ex. 3 at 1.  On May 22, 2018, WPS issued an initial determination informing Petitioner of the $574,348.00 overpayment.  CMS Ex. 4.  WPS informed Petitioner of the process for filing both a rebuttal and an appeal, to include providing the mailing address and deadline for filing a request for redetermination to appeal the overpayment determination.  CMS Ex. 4 at 2, 4-5.

In response to Petitioner’s rebuttal statement (CMS Ex. 1.5), WPS, on June 18, 2018, informed Petitioner that because it had “failed to provide a valid reason as to why the recoupment of the overpayment should not be initiated/continue, [its] request to prevent/stop recoupment has been denied.”  CMS Ex. 11.  WPS once again informed Petitioner how it could appeal the overpayment determination.  CMS Ex. 11. On July 26, 2018, WPS informed Petitioner of its outstanding debt, which had increased due to accrued interest, and it explained it had not received payment, an appeal request, or an application for an extended repayment schedule, and may refer Petitioner’s delinquent debt to Treasury’s DCC.  CMS Ex. 5 at 1.  WPS offered Petitioner a 60-day timeframe to submit evidence that all or part of the debt is not past due or legally enforceable before it would refer the debt to Treasury.  CMS Ex. 5 at 3.

Although Petitioner had been informed multiple times about its right to appeal, it did not file an appeal.  CMS Exs. 4 at 4 (initial statement of appeal rights); 5 at 1 (reporting that Petitioner had not yet filed an appeal as of July 26, 2018); 11 at 1 (informing Petitioner, following its submission of a rebuttal statement, that it could file an appeal); see 12 at 5 (CMS’s statement that Petitioner did not appeal the initial determination); P. Br. at 24 (Petitioner’s statement that it did not appeal the initial determination).⁹

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On October 8, 2018, Treasury notified Petitioner that CMS had referred its debt for collection.  CMS Ex. 6 at 1; see CMS Ex. 12 at 4.  Petitioner disputed the debt, arguing that CMS had provided a “false report of overpayment” based on the rescission of the May 2018 revocation.  CMS Ex. 9 at 3.  CMS furnished Treasury with a copy of the May 22, 2018 overpayment determination to support the existence of a present debt.  CMS Ex. 10.

While I need not calculate the precise amount of Petitioner’s current debt, the evidence supports that Petitioner has a current outstanding debt. Petitioner has not submitted any evidence that this debt does not remain outstanding.  Further, Petitioner has not disputed that it did not appeal the overpayment determination in accordance with the instructions outlined by WPS in the initial determination.  See CMS Ex. 4 at 4-5.  Therefore, Petitioner has an unappealed overpayment of $574,348.00 that resulted in an uncollected debt to CMS.

To the extent Petitioner broadly disputes the validity of this debt,¹⁰ the DAB has previously explained that claims denials and enrollment matters have different appeals processes, stating:

A supplier may appeal claim denials to a CMS contractor in accordance with procedures set out in 42 C.F.R. Part 405, subpart I.  Claim denials may be further appealed, in appropriate circumstances, to the ALJs in the Office of Medicare Hearings and Appeals (OMHA) and then to the Medicare Appeals Council.  See generally 42 C.F.R. § 405.1000-1140.  When a claim is denied, a contractor must give notice and information about the process by which the denial may be appealed. 42 C.F.R. § 405.921. . . .  [T]he appeals process for supplier enrollment in Part 498 (which applies to the matter we are deciding) would not apply to the review of the claim denials.

Dr. Elinor Schottstaedt, M.D., DAB No. 2337 at 5 fn.3 (2010).  I lack jurisdiction over an overpayment matter, much less an overpayment that was not timely appealed, because it is a part 405 matter that is outside of my jurisdiction.  Because I cannot review the overpayment determination, and that determination is final, Petitioner had a debt to CMS of $574,348.00 at the time of the May 2018 initial determination.

After Petitioner did not appeal the May 2018 initial determination that it had been overpaid $573,348.00 within 120 days, CMS appropriately referred the debt to Treasury. 

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CMS’s contractor issued the initial determination notifying Petitioner of the overpayment on May 22, 2018.  CMS Ex. 4 at 1.  Receipt of that determination is presumed to be five days after the date of the determination, and therefore, the presumed date of receipt by Petitioner is May 27, 2018. 42 C.F.R. § 405.942(a)(1).  An appeal was due no later than September 24, 2018.  42 C.F.R. § 405.942(b).

Although WPS, at the time it denied Petitioner’s request to prevent or stop recoupment of the overpayment on June 18, 2018, reminded Petitioner of its right to appeal, Petitioner did not file an appeal.  The following month, on July 26, 2018, CMS, in its letter informing Petitioner that it intended to refer its debt to Treasury, explained that it had not yet received an appeal.  CMS Ex. 5 at 1.  Nor had CMS received payment or an application for an extended payment schedule.  CMS Ex. 5 at 1.  CMS explained that it “shall” refer Petitioner’s debt to Treasury if after 60 days it did not receive evidence that the debt is not owed or legally enforceable.  CMS Ex. 5 at 3.  As it had warned, CMS referred the debt on October 5, 2018.  CMS Ex. 12 at 4; see CMS Ex. 6 at 1 (Treasury’s October 8, 2018 letter informing Petitioner that its debt had been referred).

Because Petitioner neither appealed the overpayment determination that was the basis for its debt to CMS, nor paid the debt (or entered into a repayment plan), CMS appropriately referred the debt to Treasury for collection.

CMS considered the factors at 42 C.F.R. § 424.535(a)(17) in upholding WPS’s revocation of Petitioner’s enrollment.

Pursuant to 42 C.F.R. § 424.535(a)(17), when a supplier has an existing debt that CMS appropriately refers to the Treasury, CMS, in determining whether revocation is appropriate, considers six factors, as addressed below.

CMS first considers “the reason(s) for the failure to fully repay the debt (to the extent this can be determined).”  42 C.F.R. § 424.535(a)(17)(i).  Addressing this factor, CMS explained that it was unaware of any reason why Petitioner did not fully repay its debt, and that it did not avail itself of the opportunity to appeal the overpayment.  CMS Ex. 12 at 7.  I observe that CMS, prior to referring the debt, informed Petitioner that if it was “unable to make refund of the entire amount at this time, advise [CMS] immediately so that [CMS] may determine if [it is] eligible for a repayment plan.” CMS Ex. 5 at 3.

CMS also considers “[w]hether the provider or supplier has attempted to repay the debt (to the extent this can be determined).”  42 C.F.R. § 424.535(a)(17)(ii).  With respect to this factor, CMS reported, “CMS has confirmed that [Petitioner] has not attempted to repay its debt, but there was a total of $10,143.15 in automatic offsets to interest based on payments made in December 2018.”  CMS Ex. 12 at 7. 

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The third factor CMS considers is “[w]hether the provider or supplier has responded to CMS’[s] requests for payment (to the extent this can be determined).”  42 C.F.R. § 424.535(a)(17)(iii).  CMS explained that Petitioner “has submitted various correspondence . . . but none have been an attempt to repay the debt.”  CMS Ex. 12 at 7.  CMS discussed that Petitioner “did not attempt to repay its debt nor did it avail itself of the applicable appeals process for contesting the overpayment and claims at issue outside of submitting a rebuttal,” and “d[id] not find [Petitioner’s] continuing stance that the overpayment is invalid or incorrect to be persuasive.”  CMS Ex. 12 at 8.

The fourth factor CMS must consider is “[w]hether the provider or supplier has any history of final adverse actions or Medicare or Medicaid payment suspensions.”  42 C.F.R. § 424.535(a)(17)(iv).  CMS noted that Petitioner had been under a Medicare payment suspension from October 10, 2017, until April 10, 2018.  CMS Ex. 12 at 8; see CMS Ex. 8.

CMS next considers the amount of the debt.  42 C.F.R. § 424.535(a)(17)(v).  CMS determined that the debt at the time of the January 2023 initial determination was $828,663.09, which it “considers to be a substantial debt as it is more than eight hundred thousand dollars and continuing to accrue interest.”  CMS Ex. 12 at 8; see CMS Ex. 2.

The final factor CMS considers is “[a]ny other evidence that CMS deems relevant to its determination.”  42 C.F.R. § 424.535(a)(17)(vi).  CMS found it “relevant that for more than four years from the date its debt was first referred to Treasury for collection, [Petitioner] has not repaid its debt, but rather has continued to allow its debt to accrue interest while attempting to maintain its enrollment in the Medicare program.”  CMS Ex. 12 at 8.  CMS explained that it considered “all of the relevant factors in conjunction with the specific facts and circumstances surrounding [Petitioner’s] delinquent debt” and found that Petitioner’s enrollment was “appropriately revoked” pursuant to 42 C.F.R. § 424.535(a)(17).  CMS Ex. 12 at 8.

Based on my review of CMS’s reconsidered determination, the record supports that CMS considered each of these factors listed in 42 C.F.R. § 424.535(a)(17)(i)-(vi).   long as CMS appropriately referred Petitioner’s debt to Treasury and considered the aforementioned factors in determining whether Petitioner’s enrollment should be revoked, I cannot second-guess CMS’s refusal or exercise its discretion.  See Linda Silva, P.A., DAB No. 2966 at 12 (2019) (“Neither CMS’s enrollment regulations (in 42 C.F.R. Part 424) nor the administrative appeal regulations (in 42 C.F.R. Part 498) authorize an administrative law judge or the [DAB] to mitigate the consequences of a valid and binding revocation determination.”).  CMS has established a legitimate basis for revoking Petitioner’s enrollment.

Petitioner’s arguments are largely inflammatory and insulting of government agents or officials and do not support any error in the revocation determination.  See Request for

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Hearing (accusations that government agents or officials “misrepresented factual circumstances,” engaged in a “corrupt practice,” committed “fraudulent activity in deception,” and acted with “relentless depravity in falsehood”); P. Br. (containing accusations that government agents and officials “were knowingly lying,” acted with “illegality and criminality,” engaged in “unconscionable and depraved behavior,” based administrative actions on “absolutely false contrivances fabricated by [the] contractor,” relied on “false and misleading information,” were “like a rejected and rescinded psychopath who will never stop to fail in its lies,” engaged in a “scam and fraudulence,” lacked “literacy,” “proffered a delusional account,” committed “gross misrepresentation,” were incompetent, had “egregious and foul behavior,” “provided false and illusory information,” had “heinous disregard for basic factual truth,” and engaged in a “crime spree”).

Further, it appears that the crux of Petitioner’s argument is that September 2018 recission of its May 2018 revocation based on 42 C.F.R. § 424.535(a)(10) somehow nullified the overpayment determination.  It did not.  On May 31, 2018, CMS revoked Petitioner’s enrollment pursuant to 42 C.F.R. § 424.535(a)(10) based on a failure to provide access to documentation requested on January 10 and March 7, 2018.  CMS Ex. 1.3 at 1.  CMS rescinded this revocation on September 20, 2018.  CMS Ex. 1.4.  Months later, in response to email correspondence from Petitioner, a CMS official reported that the revocation action had not generated an overpayment. CMS Ex. 1 at 10.  Contrary to Petitioner’s interpretation of CMS’s statement, the lack of an overpayment caused by a relatively brief (and rescinded) revocation did not have any bearing on the entirely separate matter of whether Petitioner had been overpaid for Medicare claims submitted between 2013 and 2016.  In fact, the overpayment determination was based on consideration of records received from Petitioner through January 2, 2018 (CMS Exs. 3, 4), whereas the rescinded revocation was based on a failure to comply with subsequent records requests dated January 10 and March 7, 2018.  CMS Ex. 1.3.  Petitioner has not established any relationship between the lack of an overpayment generated by the rescinded May 2018 revocation and the overpayment that was the subject of the May 22, 2018 initial determination.  CMS acknowledged this argument, explaining:

[Petitioner] argues that the purported overpayment amount of $828,663.09, as cited in the initial determination letter is patently false and utterly absurd. [Petitioner] claims that there has never been any such overpayment imposed against it.  [Petitioner] appears to base this contention on its misunderstanding that the overpayment at issue in its current appeal is based on the now rescinded 2018 revocation of its Medicare enrollment under § 424.535(a)(10).  To support this contention, [Petitioner] submits copies of emails with . . . the Director of the Division of Provider Enrollment Appeals [] from August 2018 through January 2019, in which [she] confirmed that no overpayments were generated as a result of the enrollment revocation [under § 424.535(a)(10)] (see pages 10-33 of Exhibit 1).  [She] also directed

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[Petitioner] to its [Medicare Administrative Contractor] and/or the Investigations and Audits Group (IAG) if it had further questions regarding its overpayment.  However, the overpayment at issue, which is the basis for the existing debt that CMS appropriately referred to Treasury in October 2018 is based on the post-payment claims review conducted by AdvanceMed and not the now rescinded revocation of [Petitioner’s] Medicare enrollment.  While the enrollment revocation under § 424.535(a)(10) was rescinded, this does not support [Petitioner’s] argument that the underlying determination of an overpayment is invalid or incorrect based on AdvanceMed’s post-payment review of its claims.

CMS Ex. 12 at 4-5 (internal citations omitted).

Petitioner has not argued, much less submitted evidence, that CMS did not appropriately refer the debt that was the subject of the May 22, 2018 initial determination.  Nor has Petitioner offered arguments, much less submitted evidence, that CMS did not consider the factors outlined in 42 C.F.R. § 424.535(a)(17). Petitioner’s arguments amount to an attack on government agents and officials and the unappealed determination that resulted in the overpayment, itself.  However, this is not the forum to challenge the May 22, 2018 initial determination.  Petitioner has not shown that CMS lacked a legitimate basis to uphold the revocation of its Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(17).

I cannot review the length of the bar to re-enrollment.

Pursuant to 42 C.F.R. § 424.535(c), CMS is authorized to impose a bar to reenrollment of up to ten years when it has revoked a supplier’s enrollment.  In its reconsidered determination, CMS upheld the 10-year bar to reenrollment.  CMS Ex. 12 at 8.  The DAB has unambiguously explained that such a matter is beyond the scope of an ALJ’s review, stating:

A decision by CMS or its contractor about how long to bar a revoked supplier from re-enrolling in Medicare, unlike the determination to revoke the supplier’s billing privileges, is not an appealable “initial determination” under 42 C.F.R. Part 498.  Blossomwood Medical, P.C., et al., DAB No. 2914, at 11 (2018); Vijendra Dave, M.D. [DAB No. 2672] at 8-11 [(2016)] (stating that the authority of an ALJ or the Board in a revocation appeal “does not extend to reviewing the length of the reenrollment bar imposed by CMS”).  We therefore cannot consider or act upon Petitioner’s contention that the three-year re-enrollment bar was excessive in her circumstances.

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Linda Silva, P.A., DAB No. 2966 at 11. Petitioner has not identified any legal error in CMS’s imposition of the reenrollment bar, and I may not otherwise review the duration of the reenrollment bar.  See Vijendra Dave, M.D., DAB No. 2672 at 11 (2016) (“CMS’s determination regarding the duration of the re-enrollment bar is not reviewable.”).

CMS was authorized to place Petitioner on its Preclusion List.

CMS has established a single list of individuals and entities for whom Medicare Advantage plans cannot provide reimbursement for items and services they provide, and for prescribers to whom Medicare Part D plans cannot provide reimbursement for any prescriptions the individuals write. 42 C.F.R. §§ 422.222, 423.120(c)(6).  As relevant here, in order for CMS to include an individual, entity, or prescriber on its Preclusion List, all of the following three requirements must be met:

(i) The [individual, entity, or prescriber] is currently revoked from Medicare for a reason other than that stated in [42 C.F.R.] § 424.535(a)(3) . . .
(ii) The [individual, entity, or prescriber] 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 under this paragraph . . . , CMS considers the following factors:

(A) The seriousness of the conduct underlying the . . .  revocation.
(B) The degree to which the . . . conduct could affect the  integrity of the [Medicare/Part D] program.
(C)  Any other evidence that CMS deems relevant to its  determination . . . .

42 C.F.R. §§ 422.2, 423.100.  CMS upheld the inclusion of Petitioner on its Preclusion List pursuant to 42 C.F.R. § 422.2.  CMS Ex. 12 at 8-10; see CMS Ex. 2 at 2-3.

It does not appear that Petitioner raises any arguments regarding its placement on CMS’s Preclusion List.  Nonetheless, I will briefly summarize why CMS had a legitimate basis for upholding Petitioner’s inclusion on its Preclusion List.  Because I have upheld Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(17), and Petitioner is subject to a 10-year bar to re-enrollment, the first two requirements for inclusion on the Preclusion List are met. 42 C.F.R. § 422.2.

As for the third requirement listed in 42 C.F.R. § 422.2, CMS first determined that

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Petitioner’s conduct underlying its revocation was detrimental to the best interests of the Medicare program.  CMS Ex. 12 at 9.  CMS discussed that Petitioner’s debt had increased through interest and the lack of repayment, and that it “considers a provider’s failure to repay funds that were improperly paid to the provider based on its own billing to be extremely serious.”  CMS Ex. 12 at 9.  CMS remarked on the more than four-year length of the debt, as well as the accrual of interest has caused the debt to increase to more than $800,000.00.  CMS Ex. 12 at 9.

In considering the second factor, CMS’s determinations included that Petitioner’s debt “resulted from an overpayment that was determined through a computer-generated statistically valid random sample of claims” that had been revied by the UPIC, and the “review found that the level of service billed by [Petitioner] was not warranted, and the documentation submitted did not support that the service was actually rendered.”  CMS Ex. 12 at 9.  CMS explained that “[i]f allowed to continue to be enrolled, [Petitioner’s] problematic billing and accrual of overpayments may continue, which represents a significant risk to the integrity of the Medicare program.”  CMS Ex. 12 at 9.

Finally, with respect to the third factor, CMS found it “relevant that [Petitioner’s] payments were suspended from October 10, 2017 through April 10, 2018 based on reliable information that an overpayment exists or that the payments to be made may not be correct.”  CMS Ex. 12 at 10.  CMS determined Petitioner had demonstrated it was “not a trustworthy Medicare partner nor is it willing or able to abide by the applicable rules and requirements to be enrolled in the Medicare program.”  CMS Ex. 12 at 10.

Petitioner has not disputed CMS’s findings, nor has it demonstrated legal error in CMS’s determination that it should be placed on its Preclusion List.  As I previously explained, I am not authorized to second-guess CMS’s refusal to exercise its discretion.  CMS had a legitimate basis to place Petitioner on its Preclusion List pursuant to 42 C.F.R. § 422.2.

V.   Conclusion

I affirm the determinations revoking Petitioner’s Medicare enrollment and billing privileges and placement on CMS’s Preclusion List.

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Endnotes

¹  Although the reason for CMS’s rescission of Petitioner’s May 2018 revocation is not revealed by the evidentiary record, I observe that the list of claims appended to the notice of Petitioner’s revocation lists Dr. Sohal, as an individual “provider” with National Provider Identifier (NPI) 1992833206, rather than Petitioner, a medical practice with NPI 1780868315.  CMS Ex. 1.3 at 3-7; see CMS Ex. 7 at 1 (listing NPIs for both Dr. Sohal (1992833206) and the practice (1780868315)).

²  On September 1, 2020, Petitioner, through counsel, requested reopening of the overpayment determination.  CMS Ex. 1.2.  CMS reported that it “has confirmed that no action was taken regarding the overpayment based on the September 1, 2020 request to reopen letter as the request was not timely submitted.”  CMS Ex. 12 at 5.  The letter does not include an allegation of good cause, as contemplated by 42 C.F.R. § 405.986 (e.g., new and material evidence, a change in substantive law or interpretive policy, or third-party payor error).  A contractor’s refusal to reopen based on a lack of good cause is not subject to appeal.  42 C.F.R. §§ 405.926(l) and 405.980(a)(5).

³  Section 9(c) of my standing pre-hearing order directs that exhibits should be designated with a whole identifying number.  CMS reported that it “preserved the same exhibit numbers from the Reconsideration Decision . . . to avoid confusion.”  CMS Br. at 5, fn.1.  CMS should be mindful its submission of exhibits should comply with the requirements of the standing order rather than mirroring how WPS identified the exhibits in its reconsidered determination.

⁴  Petitioner’s request for summary judgment is a conclusory statement in the final sentence of its brief.  Petitioner’s filing does not identify undisputed facts that would support a judgment as a matter of law.

⁵  Despite the filing schedule and instructions outlined in the standing pre-hearing order, Petitioner, through Dr. Sohal, filed numerous documents throughout the course of these proceedings that are not contemplated by the Pre-Hearing Order.  See, e.g., DAB E-Filing Docket Entry Nos. 4, 5, 6, 11, 14, 15, 16, 18, 18_a, 18_b.  Some of these filings include baseless inflammatory allegations against government officials, to include the undersigned ALJ, the counsel assisting me in this matter, CMS’s counsel, and various other individuals who were involved in the administrative review of the matters addressed herein.  On July 19, 2023, I ordered that any party seeking relief must make such a request through the filing of a motion, and I “caution[ed] the parties that I do not tolerate harassment or incivility.”  I also reminded the parties that documents must be filed in compliance with the requirements set forth in the Pre-Hearing Order and the Civil Remedies Division Procedures.  Nonetheless, Petitioner continued to file documents and seek relief through correspondence with the attorney assisting me in this matter.  On August 3, 2023, I ordered that submissions received after my July 19, 2023 Order had not been accepted for filing.

⁶  I add that in a separate filing, Petitioner alleged that “it is quite possible that there is an element of nepotism, cronyism, or corruption” involved in the assignment of CMS’s counsel to this case.  See DAB E-Filing Docket Entry No. 30 at 1.  I reject such an unsupported and baseless allegation.

⁷  In apparent support for a request of a psychiatric examination of certain individuals, Dr. Sohal stated, “There needs to be investigation of the deficits or impairment noted in mathematical or verbal aptitude that are causing ongoing and ineffective exercise of basic duty with notable deficits in moral sensitivity or moral conscience.”  See DAB E-Filing Docket Entry No. 27 at 7.  It is troubling that Dr. Sohal, as a physician who seeks to be re-enrolled in the Medicare program, has attributed the actions of government officials and agents with whom he disagrees to mental or cognitive impairment.

⁸  As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to dispose of this matter through summary judgment.

⁹  Because Petitioner did not paginate its brief, I cite to the page number in the .pdf document.

¹⁰  Petitioner, in its brief, contests the validity of the overpayment.  However, Petitioner did not submit any evidence that it does not continue to have an outstanding debt that has been referred to Treasury.