Abolghasem M. Rezaei, DAB CR6424 (2024)

DECISION

Novitas Solutions (Novitas), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Abolghasem M. Rezaei, because he did not timely report the suspension of his medical license to CMS and because Oklahoma disqualified him from participation in its Medicaid program.  42 C.F.R. § 424.535(a)(9),(12).  CMS also placed Petitioner on its preclusion list pursuant to 42 C.F.R. §§ 422.2 and 423.100.  Petitioner challenges both the revocation action and his placement on the preclusion list.  For the reasons set forth below, I affirm both. 

I.        Background

Petitioner is a physician who was licensed to practice medicine in Oklahoma.  On March 10, 2020, the Oklahoma Health Care Authority (OHCA) notified Petitioner of the immediate termination of his SoonerCare¹ provider contract.  CMS Ex. 4 at 1-4; CMS Ex. 8.  Petitioner appealed that termination on March 12, 2020.  CMS Ex. 5 at 1-9.  On April 2, 2020, OHCA issued a final decision affirming its termination action against

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Petitioner.  CMS Ex. 6 at 1-2. 

On March 24, 2020, the Oklahoma State Board of Medical Licensure and Supervision (Medical Board) suspended Petitioner’s medical license for six months for prescribing controlled substances to patients for periods longer than three months and for deficient documentation practices.  CMS Ex. 7 at 1-9. 

On January 8, 2021, Novitas notified Petitioner of the revocation of his Medicare billing privileges, effective February 7, 2021, because OHCA terminated Petitioner’s Medicaid provider contract and because Petitioner failed to timely report the suspension of his medical license to CMS.  CMS Ex. 2 at 1.  Novitas also informed Petitioner he would be barred from re-enrolling as a Medicare biller for five years and that CMS would place him on its preclusion list.  Id. at 1-2. 

Petitioner sought reconsideration of these actions.  CMS Ex. 3.  On April 15, 2021, CMS issued a reconsidered determination affirming Petitioner’s revocation, his five-year re-enrollment bar, and his placement on the preclusion list.  CMS Ex. 1 at 8-9. 

Petitioner timely filed a request for hearing before an ALJ in the Civil Remedies Division of the Departmental Appeals Board, resulting in my designation to hear and decide this case.  I issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing Order) providing a schedule for the parties to submit arguments and evidence.  CMS timely filed a Pre-hearing Brief and Motion for Summary Judgement (CMS Br.) and eight proposed exhibits (CMS Exs. 1-8).  Petitioner eventually filed a Brief (P. Br.) and no proposed exhibits. 

II.       Admission of Exhibits and Decision on the Record

Petitioner did not object to CMS’s proposed exhibits.  I therefore admit CMS Exhibits 1 through 8 into the record.  Pre-hearing Order ¶ 8; Civ. Remedies Div. P. § 14(e).  Petitioner filed no proposed exhibits with his exchange but did include nine attachments to his Request for Hearing.  DAB E-File Dkt. No. C-21-841, Doc. Nos. 1b-1j.  However, my Pre-Hearing Order required the parties to identify proposed exhibits in an exhibit list as part of their pre-hearing exchanges and to provide a properly marked copy of each proposed exhibit.  Pre-Hearing Order at ¶ 5(c).  I warned that exhibits that did not conform to these requirements would be rejected.  Id. at ¶ 7(e).  Petitioner did not express his intent for me to consider the attachments to his hearing request as proposed exhibits. He did not include them with his pre-hearing exchange or even identify them as proposed exhibits.  Accordingly, I decline to admit the nine attachments to Petitioner’s hearing into evidence. 

Neither party offered the written direct testimony of a witness.  An in-person hearing is therefore not necessary in this matter.  Pre-hearing Order ¶¶ 9-11.  I decide this case on

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the record, meaning the parties’ written submissions and arguments.  Civ. Remedies Div. P. § 19(d).  CMS’s motion for summary judgment is denied as moot. 

III.      Issues

Whether CMS had a legitimate basis for revoking Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(9);

Whether CMS had a legitimate basis for revoking Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(12); and

Whether CMS had a legitimate basis to place Petitioner on its preclusion list. 

IV.      Jurisdiction

I have jurisdiction to decide the issues in this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2); see also Soc. Sec. Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)). 

V.        Applicable Law

The Act authorizes the Secretary of Health and Human Services to establish regulations for enrolling providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  Suppliers must enroll in the Medicare program and receive a billing number in order to obtain payment for services rendered to Medicare beneficiaries.  42 C.F.R. § 424.505. 

42 C.F.R. § 424.535(a)(9) permits CMS to revoke a currently enrolled supplier’s Medicare billing privileges if the supplier fails to comply with the reporting requirements set forth at 42 C.F.R. § 424.516(d)(1)(ii).  That provision 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)(12) permits CMS to revoke a supplier’s Medicare enrollment and billing privileges where “[t]he provider or supplier is terminated, revoked or otherwise barred from participation in a State Medicaid program or any other federal health care program” and “has exhausted all applicable appeal rights or the timeframe for filing an appeal has expired without the provider or supplier filing an appeal.”  42 C.F.R. § 424.535(a)(12)(ii).  

Following revocation, CMS will bar a provider or supplier from re-enrolling as a biller to the Medicare program for a period of one to 20 years.  42 C.F.R. § 424.535(c).

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To place an individual or entity on its preclusion list, CMS must establish each of the following three requirements: 

(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). . . 

(ii)  The individual or entity is currently under a re-enrollment 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, Preclusion list; see also 42 C.F.R. § 423.100. 

VI.     Findings of Fact, Conclusions of Law and Analysis

1. CMS had a valid basis under 42 C.F.R. § 424.535(a)(9) to revoke Petitioner’s billing privileges in the Medicare program because he did not provide timely notice of the suspension of his medical license to CMS.

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:  

(1) Whether the data in question was reported;
(2) If the data was reported, how belatedly;

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(3) The materiality of the data in question; and 
(4) Any other information that CMS deems relevant to its determination.  

42 C.F.R. § 424.535(a)(9). 

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 Medical Board, thus warranting revocation of his billing privileges under 42 C.F.R. § 424.535(a)(9).  CMS Br. at 6-7.  There is no dispute Oklahoma’s Medical Board suspended Petitioner’s medical license on March 24, 2020.  CMS Ex. 7 at 1.  Petitioner asserts his attorney did in fact report the suspension of his license to CMS.  P. Br. at 3.  But Petitioner provided no admissible evidence to corroborate this claim, to which he did not otherwise attest under oath.  He does not even specify when or how his attorney allegedly informed CMS.²  Id.  Both CMS and Novitas deny receiving timely notice.  CMS Ex. 1 at 7 (“CMS has confirmed that neither CMS nor Novitas received [notice from Petitioner]. . . . The first time CMS has record of receiving the “Notice of Status” letter is in a January 29, 2021 email that included it as an attachment.”).³

Finally, Petitioner claims the Medical Board discriminated against him on the bases of religion and national origin when it suspended his medical license.  P. Br. at 3.  But I have no authority to review the legitimacy of the Medical Board’s decision to revoke Petitioner’s medical license.  My review is instead limited to whether CMS has established the regulatory elements necessary to permit revocation.  Stanley Beekman, D.P.M., DAB No. 2650 at 10 (2015) (stating an ALJ’s review “is specifically limited to whether there was a legal basis for CMS to revoke a provider’s or supplier’s Medicare billing privileges.”) (citations omitted).  Here, CMS has established Oklahoma’s Medical Board revoked Petitioner’s medical license on March 24, 2020, and there is no evidence of record to suggest Petitioner notified CMS of that suspension until January 29, 2021, well beyond the 30-day reporting timeframe set forth at 42 C.F.R. § 424.516(d).  CMS has established a basis to revoke Petitioner’s enrollment as a biller to the Medicare program pursuant to 42 C.F.R. § 424.535(a)(9). 

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2. Petitioner’s termination from Oklahoma’s Medicaid program provided CMS a legitimate basis to revoke his Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(12). 

Pursuant to 42 C.F.R. § 424.535(a)(12), CMS may revoke a supplier’s Medicare billing privileges when two elements have been satisfied.  A state Medicaid agency must have first “terminated or revoked” that supplier’s Medicaid’s billing privileges.  42 C.F.R. § 424.535(a)(12)(i).  Second, the supplier must have “exhausted all applicable appeal rights.”  42 C.F.R. § 424.535(a)(12)(ii).  Both elements are satisfied here. 

There is no dispute OHCA “terminated, revoked, or otherwise barred” Petitioner from participating in Oklahoma’s Medicaid program.  CMS Ex. 4 at 1; P. Br. at 2.  Nor is there any dispute that this termination action became final on April 2, 2020, meaning Petitioner exhausted his appeal rights.  CMS Ex. 6. 

Petitioner instead repeats his claim that OHCA improperly terminated him from participation in the state’s Medicaid program because of his religion and national origin.  P. Br. at 2, 3.  But as I have already explained, I cannot entertain collateral attacks upon a state agency’s decision.  Stanley Beekman, D.P.M., DAB No 2650 at 10.  I am limited to determining whether a factual basis exists for the action taken by CMS.  Here, CMS has established OHCA terminated Petitioner’s participation from its Medicaid program and that this decision became final prior to CMS’s revocation action.   As such, CMS has established a basis to revoke Petitioner’s enrollment as a biller to the Medicare program pursuant to 42 C.F.R. § 424.535(a)(12). 

3. CMS had a legal basis to add Petitioner to the preclusion list effective April 15, 2021.

To place a provider or supplier on its preclusion list, CMS must establish the following elements: 

(1) The individual or entity is currently revoked from Medicare under § 424.535;
(2) The individual or entity is currently under a reenrollment bar under § 424.535(c); and 
(3) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.

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42 C.F.R. § 422.2; 423.100. 

There is no dispute that the first two elements are met here.  At the time of his placement on the preclusion list, April 15, 2021, CMS had revoked Petitioner’s Medicare provider contract and imposed a five-year re-enrollment bar under § 424.535(c), which became effective 30 days after the postmark date of CMS’s January 8, 2021 notice letter.  CMS Ex. 1 at 8; CMS Ex. 2; see also P. Br. at 2-4. 

As to the third element, CMS must consider the following factors to determine whether the conduct that resulted in revocation is detrimental to the best interests of the Medicare program: 

(1) The seriousness of the conduct underlying the individual’s or entity’s revocation;
(2) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program; and 
(3) Any other evidence that CMS deems relevant to its determination.

42 C.F.R. § 422.2; 423.100. 

Where the regulations have granted CMS discretion to determine whether a provider or supplier’s underlying conduct is detrimental to the Medicare program, I may not substitute my own judgment as to whether CMS properly exercised that discretion.  Brian K. Ellefsen, D.O., DAB No. 2626 at 7 (2015); see also Pa. Physicians, P.C., DAB No. 2980 at 13 (2019). 

Here, CMS met its regulatory obligation to consider whether the conduct underlying Petitioner’s revocation was detrimental to the best interests of the Medicare program by assessing the seriousness of that conduct and the degree to which that conduct could affect the integrity of the Medicare program.  42 C.F.R. § 422.2, Preclusion list.  In its reconsidered determination, CMS explicitly weighed these factors, observing: 

Dr. Rezaei’s concerning pattern of dangerous prescribing practices and inadequate documentation negatively impacts the integrity of the Medicare program.  In deciding to terminate him from the SoonerCare program, OHCA concluded that there appears to be a persistent pattern of prescribing very dangerous medication combinations and it was “extremely concerned” for the health and safety of its members.  Given this, CMS is concerned that the conduct led to Dr. Rezaei’s SoonerCare termination could be replicated in the Medicare program.  Such conduct could pose a significant risk to the safety of Medicare beneficiaries.  It follows that

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any risk to Medicare beneficiaries is also a risk to the integrity of the Medicare program and Trust Funds.  The integrity of the Medicare program is dependent upon the integrity of its partners and Dr. Rezaei’s conduct raises significant questions about his ability and willingness to be a dependable Medicare partner.  

Furthermore, Dr. Rezaei’s failure to report the suspension of his medical license to CMS in a timely manner as required under § 424.516(d) is also serious.  CMS relies on the updated information and supplier disclosures to screen suppliers for continued enrollment in the Medicare program. Because of his failure to timely report his licensure suspension, Dr. Rezaei continued to be enrolled in the program though he did not meet enrollment requirements related to licensure.  This failure represents a significant negative effect on the integrity of the program.  While he claims that he sent a letter to all insurance companies, including CMS, to disclose his suspension, no such letter was received from Dr. Rezaei or his representative.  Accordingly, CMS upholds Dr. Rezaei’s inclusion on the CMS Preclusion List, effective the date of this decision.  

CMS Ex. 1 at 8.  As this discussion demonstrates, CMS considered the seriousness of Petitioner’s conduct and the degree to which Petitioner’s conduct could impact the integrity of the Medicare program.  42 C.F.R. § 422.2, Preclusion list; see also 42 C.F.R. § 423.100.  CMS’s analysis of the factors it was required to consider is well-articulated and contains no factual errors or misrepresentations.  CMS has established the conduct which resulted in Petitioner’s revocation was detrimental to the best interests of the Medicare program.

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VII.    Conclusion

I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(9) and (12).  I further affirm CMS’s determination to place Petitioner on its preclusion list. 

Endnotes

¹  SoonerCare is Oklahoma’s Medicaid program, jointly funded by the state and the federal government.  See Okla. Health Care Authority, About SoonerCare, available at https://oklahoma.gov/ohca/individuals/mysoonercare/about-soonercare.html (last rev. Mar. 10, 2022).

²  It appears unlikely Petitioner’s attorney could have notified CMS within the 30 days required by regulation following the March 24, 2020 suspension of his medical license, as Petitioner otherwise claims that he did not contest OHCA’s April 2, 2020 decision to terminate his participation in the state’s Medicaid program because he could not “afford the lawyer.”  P. Br. at 2-3.

³  CMS’s concession of receipt of notice from Petitioner on January 29, 2021 does not help his cause, as 42 C.F.R. § 424.516(d) required him to notify CMS or its contractor within 30 days of the adverse legal action, which took effect on March 24, 2020.  CMS Ex. 7 at 1.