Palm Beach Pain Management, Inc., Port St. Lucie Pain Management, PLLC, and Anthony Glenn Rogers, M.D., CR6425 (2024)

DECISION

Petitioner Anthony Glenn Rogers, M.D. is a Florida physician who participated in the Medicare program as a supplier of services. Petitioners Palm Beach Pain Management, Inc., and Port St. Lucie Pain Management, PLLC, are his medical practices. He is their sole owner and, while participating in the Medicare program, reassigned his billing privileges to those practices.

After determining that he had committed medical malpractice, the Florida Board of Medicine suspended Petitioner Rogers’ medical license. Based on that suspension, the Medical Board of California also suspended his license, and the California Department of Health Care Services suspended him from participating in the state’s Medicaid program (Medi-Cal). Petitioners did not report these adverse actions to the Centers for Medicare & Medicaid Services (CMS). The Medicare contractor, First Coast Services Options, subsequently determined that, during the period of Petitioner Rogers’ license suspension, the practices continued to bill the Medicare program for services he ostensibly provided.

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Based on these events, CMS has revoked Petitioners’ Medicare enrollments, imposed ten-year reenrollment bars, and placed them on the Medicare Preclusion List.

Petitioners have appealed CMS’s determination to place them on the Medicare preclusion list. They have not appealed their revocations nor the reenrollment bars, which are therefore administratively final (discussed below).

I affirm CMS’s determinations. I find that CMS is authorized to place Petitioners on the preclusion list because their Medicare enrollments have been revoked; they are under reenrollment bars; and CMS reasonably determined that the conduct underlying the revocations is detrimental to the best interests of the Medicare program.

Background

By letter dated March 9, 2023, the Medicare contractor advised Petitioner Rogers that his Medicare privileges were revoked, effective April 8, 2023, for the following reasons:

• pursuant to 42 C.F.R. § 424.535(a)(8)(ii) because, while Petitioner Rogers’ medical license was suspended (between February 24, 2021, and August 11, 2021), his medical practices submitted, on his behalf, 45 claims for 28 unique beneficiaries.
• pursuant to 42 C.F.R. § 424.535(a)(12) because Petitioner’s participation in the Medi-Cal program was terminated; and
• pursuant to 42 C.F.R. § 424.535(a)(9) because, contrary to the requirement set forth in 42 C.F.R. § 424.516(d)(1), Petitioner did not, within 30 days, notify CMS of adverse legal actions.

CMS Ex. 3 at 1-2.

In letters dated March 9, 2023, the contractor advised the medical practices that their Medicare billing privileges were also revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii) because they submitted claims, on Petitioner Rogers’ behalf, while his medical license was suspended. CMS Ex. 3 at 8, 15.

The letters advised Petitioners that, pursuant to section 424.535(c), they were under a ten-year reenrollment bar, effective 30 days from the date the notice was postmarked. CMS Ex. 3 at 4, 11, 18. Finally, the letters told Petitioners that they were being added to the CMS Preclusion List, as authorized by 42 C.F.R. §§ 422.2, 422.222, and, for Petitioner Rogers, pursuant to sections 423.100 and 423.120(c)(6) as well. CMS Ex. 3 at 2, 9, 16.

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This was an “initial determination,” which is generally binding unless “reconsidered” in accordance with section 498.24, reversed or modified by a hearing decision in accordance with section 498.78, or revised in accordance with sections 498.32 or 498.100.  42 C.F.R. § 498.20(b).  Petitioners requested reconsideration on “the matter of the Medicare preclusion list” but not the revocations or reenrollment bars.  CMS Ex. 2 at 1.  Those determinations should therefore have been administratively final. 

Nevertheless, in reconsidered determinations, dated July 27, 2023, a CMS hearing officer reviewed and upheld Petitioner Rogers’ revocation under sections 424.535(a)(8)(ii), (a)(9), and (a)(12).  CMS Ex. 1 at 13.  She also upheld the reenrollment bar established pursuant to section 424.535(c) and concluded that the revocation and reenrollment bar “form an appropriate basis to include him” on the CMS preclusion list.  CMS Ex. 1 at 12-13. 

With respect to the practices, the hearing officer upheld their revocations pursuant to section 424.535(a)(8)(ii), as well as the reenrollment bars and inclusions on the CMS preclusion list.  CMS Ex. 1 at 25. 

The appeals.  On September 12, 2023, in two separate filings (docketed as C-23-757 and C-23-758), Petitioners appealed the reconsidered determinations.  Again, they limited the appeals to one issue:  that they were added to CMS’s preclusion list.  “We hereby appeal the unfavorable decision dated July 27, 2023, denying the appellants requests to be removed from the Medicare Preclusion List.”  Request for Hearing (DAB e-file docket # 1) (emphasis added); see also CMS Br. at 6 n.1 (pointing out that Petitioners did not appeal their revocations). 

CMS subsequently moved to dismiss the appeals.  CMS agreed that an individual or entity that has received a reconsidered determination regarding his/its inclusion on the preclusion list may appeal the determination.  See 42 C.F.R. §§ 498.3(b)(20), 498.5(n), 498.40(a)(1).  Nevertheless, CMS argued that the appeals violated 42 C.F.R. § 498.40(b), which requires that the hearing request “[i]dentify the specific issues, and the findings of fact and conclusions of law” with which the party disagrees and that it “[s]pecify the basis for contending that the findings and conclusions are incorrect.”  CMS’s Motion to Dismiss at 2 (DAB e-file docket # 5). 

In a ruling, dated October 16, 2023, I consolidated the appeals and denied CMS’s motion to dismiss.  No doubt the appeals could have been more concise, but I did not agree that they failed to comply with section 498.40(b).  As I explained, the appeals were terse because they were limited to a “narrow and specific issue”:  Petitioners’ inclusion on the preclusion list.  I also pointed to the Departmental Appeals Board’s long-standing rejection of “efforts to use [the requirements of section 498.40(b)] to frustrate the good faith efforts of petitioners to perfect appeals and exercise hearing rights created by statute.”  Ruling and Consolidation Order at 3 (DAB e-file docket # 6) (citing The 

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Carlton at the Lake, DAB No. 1829 at 4 (2002) and Alden-Princeton Rehab. and Health Care Ctr., DAB No. 1709 (1999)). 

Ironically, Petitioners then filed an amended request for hearing that did not satisfy the specificity requirements of section 498.40(b).  In that amended request, Petitioners challenged, for the first time, the determinations to revoke their Medicare enrollments and impose reenrollment bars.  They did not ask leave to file the amended request; they did not assert any reason, much less good cause, for failing to appeal the revocations and reenrollment bars within 60 days, as required by regulation.  See 42 C.F.R. § 498.40(a)(2).  In a ruling and order, issued on October 20, 2023, I rejected, as untimely, Petitioner’s new hearing request, citing 42 C.F.R. § 498.70(c).  Order (DAB e-file docket # 9). 

Moreover, because Petitioners’ proposed amended hearing request does not satisfy the specificity requirements of section 498.40(b), it is not a valid hearing request.  Although the Board has instructed administrative law judges to “exercise [their] discretion” to accept, as “adequate to preserve” a right to hearing, requests that fail to meet the specificity requirements of the regulation, it did not nullify the regulatory requirements for specificity.  A petitioner must ultimately comply with the regulation by articulating the specific bases for appeal.  Carlton at the Lake, DAB No. 1829 at 7.  Notwithstanding my order and CMS’s motion to dismiss, which carefully explained the requirements, Petitioner’s amended request was inadequate.  

In any event, even if I had allowed the amended hearing request, and Petitioners had managed to prevail on the issues raised, I would still have been required to affirm their revocations based on the issue that was not appealed.  The amended request asserts, generally, that Petitioners “did not meet the requirements for the penalties imposed,” that Petitioner “faithfully complied with the dictates of the Florida Department of Health,” and that “any patients billed under his name were billed in error.”  Amended Request for Hearing at 1 (DAB e-file docket # 7).  It does not mention Petitioner Rogers’ failing to report the suspension, which, by itself, justifies the revocations and Petitioners’ inclusions on the preclusion list (discussed below).  So long as CMS shows that one of the regulatory bases exists, I must uphold the revocation.  Wassim Younes, M.D. and Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018) (citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016)).  Thus, even if I had allowed Petitioner to amend its hearing request, I would have affirmed Petitioner Rogers’ revocation based solely on section 424.535(a)(9), which would necessarily have precluded his medical practices from participating. 

Hearing on the written record.  CMS filed a motion for summary judgment with a pre-hearing brief (CMS Br.) and 12 exhibits (CMS Exs. 1-12).  Petitioners filed their own brief in opposition to summary judgment and pre-hearing brief (P. Br.) with three exhibits (P. Exs. 1-3).  Because neither party proposes any witnesses, this matter may be

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decided based on the written record without considering whether the standards for summary judgment have been met.& See Acknowledgment and Pre-hearing Order at 4-6 (¶¶ 4(c)(iv), 8, 9, 10) (September 15, 2023); HeartFlow, Inc., DAB No. 2781 at 16-17 (2017) (citing Vandalia Park, DAB No. 1940 at 28-29 (2004), aff’d, Vandalia Park v. Leavitt, 157 F. App’x 858 (6th Cir. 2005)).¹

In the absence of any objections, I admit into evidence CMS Exs. 1-12 and P. Exs. 1-3. 

Issue

The sole issue before me is whether CMS is authorized to place Petitioners on the preclusion list.  

Discussion

1. CMS acted within its authority when it added Petitioners to its preclusion list because CMS revoked their Medicare enrollments, imposed reenrollment bars, and reasonably determined that the conduct underlying their revocations is detrimental to the best interests of the Medicare program.²

The Medicare Program. The Medicare program, Title XVIII of the Social Security Act (Act), is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease. Medicare is divided into four parts:

• Part A is the hospital insurance program. It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, home health, outpatient rehabilitation, and other services.  Act § 1832 (42 U.S.C. § 1395k);
• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health

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maintenance organizations, that receive a fixed payment for each enrollee. Act § 1851 (42 U.S.C. § 1395w-21); and

• Part D is the voluntary prescription drug benefit program. Act § 1860D (42 U.S.C. § 195w-101).

The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services. CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes. Act § 1842 (42 U.S.C. § 1395u). Contractors pay claims to “providers” (Part A) and “suppliers” (Part B). Physicians and other entities that furnish healthcare services may participate in the program as “suppliers” of services; however, they must enroll in the program in order to receive Medicare payments. Act §§ 1861(d), (q), (r) (42 U.S.C. §§ 1395x(d), (q), (r)); 42 C.F.R. §§ 400.202, 424.505.

The preclusion list. Effective January 1, 2019, CMS implemented a “preclusion list” as part of its effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees,” particularly with respect to prescription drug abuse.³

Pursuant to 42 C.F.R. § 422.2 (Part C) and 42 C.F.R. § 423.100 (Part D), CMS’s “preclusion list” includes individuals who meet the following requirements:

• The individual or entity is currently revoked from Medicare for a reason other than that stated in section 424.535(a)(3);⁴
• The individual or entity is currently under a reenrollment bar under section 424.535(c);
• 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: A) the seriousness of the conduct underlying the

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individual’s or entity’s revocation; B) the degree to which conduct could affect integrity of Medicare program; and C) any other evidence that CMS deems relevant its determination.

42 C.F.R. §§ 422.2, 423.100.

Here preclusion list criteria are met. Petitioners’ enrollments were revoked, they currently under reenrollment bars. In determining underlying was detrimental best interests program, considered seriousness conduct. Among considerations, it found following:

• CMS considered it “very serious” that the medical practices submitted claims for services ostensibly provided by Petitioner Rogers even though his medical license had been suspended. Submitting claims for services rendered without proper state licensure not only jeopardizes the integrity of the Medicare program and the Medicare Trust Funds, it jeopardizes the safety of Medicare beneficiaries, particularly since Petitioner Rogers’ medical license was suspended based on a finding of malpractice. CMS Ex. 1 at 10-11, 24.⁵
• CMS views termination from a state Medicaid program as very serious, particularly since the termination was based on Petitioner Rogers’ license suspension for medical malpractice, of which Petitioner Rogers had a history. The situation calls into question the quality of care and, therefore the safety of Medicare beneficiaries. CMS Ex. 1 at 11-12.
• In CMS’s view, failing to report an adverse legal action poses a significant threat to the integrity of the Medicare program. “An enrolled individual is ultimately responsible for furnishing complete and accurate information to CMS.” CMS relies on the information reported by providers and suppliers to confirm that they still meet all program requirements and that Medicare payments are made correctly. Inaccurate or outdated information puts the Medicare Trust Fund at risk. CMS Ex. 1 at 11.

CMS also considered additional relevant factors, including:

• Petitioner Rogers had settled two malpractice claims in November 2014 for the maximum malpractice policy amount of $250,000 each. CMS Ex. 1 at 11.

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• Petitioner Rogers claimed that he continued to treat patients after his license was suspended (on February 24, 2021) because he did not know about the suspension until his attorney told him, two weeks later, on March 11, 2021. In CMS’s view, this further highlights the seriousness of Petitioner Rogers’ conduct. “Unlicensed practitioners, especially those whose medical licensure is suspended for substandard care, present a very clear threat to the health and safety of Medicare beneficiaries and the integrity of the Medicare program.” CMS Ex. 1 at 11.
• Further, Petitioner Rogers participated in the administrative proceeding that led to his license suspension. He was responsible for knowing, timely, the outcome of those proceedings, and that he did not is “alarming and egregious.” He provided no viable explanation “for his, arguably, willful ignorance” of the status of his medical license. Such purported ignorance “does not absolve him of the responsibility to submit fully compliant claims to Medicare.” CMS Ex. 1 at 6.
• Finally, CMS considered detrimental to the Medicare program Petitioners’ attempts to avoid responsibility for billing errors. The supplier is ultimately responsible for submitting compliant claims and cannot escape liability for non-compliant claims billed by staffers. The practices’ failure to recognize the alleged errors “is plainly detrimental to the best interests of the Medicare program,” as is their refusal to accept responsibility for the noncompliant claims. CMS Ex. 1 at 24.

Any one of these findings justifies CMS’s conclusion that Petitioners’ underlying conduct is detrimental to the best interests of the Medicare program.

CMS has thus established a basis for placing Petitioner on the preclusion list, and I must therefore uphold its determination to do so. See Wendell Foo, M.D., DAB No. 2904 at 3 (2018); Wassim Younes, M.D., DAB No. 2861 at 8 (citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15). I may not review its determination as to how long an individual or entity remains on the preclusion list. See Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord, William Garner, M.D., DAB No. 3026 at 16 (2020), Lilia Gorovits, M.D., P.C., DAB No. 2985 at 15-16 (2020).

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Conclusion

CMS is authorized to place Petitioners on the preclusion list because it revoked their Medicare enrollments, imposed reenrollment bars, and reasonably determined that the conduct underlying their revocations is detrimental to the best interests of the Medicare program. For these reasons, I affirm CMS’s determinations.

Endnotes

¹  That I decide this case based on the written record does not mean that Petitioner has not had a hearing. Courts recognize that, although a case may be decided on summary judgment or based on the written record, the administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing. See CNG Transmission Corp. v. FERC, 40 F.3d 289, 293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).

²  I make this one finding of fact/conclusion of law.

³  Apparently, CMS considered requiring Medicare enrollment for all providers and suppliers of Medicare Advantage services and prescribers of Part D drugs but, ultimately, opted for a preclusion list instead. CMS concluded that the burden of requiring Medicare enrollment for hundreds of thousands of additional providers, suppliers, and prescribers would be too great and would threaten beneficiary access to prescriptions and services. See 82 Fed. Reg. at 56,442, 56,448 (November 28, 2017); 83 Fed. Reg. 16,646 (April 16, 2018).

⁴  Section 424.535(a)(3) authorizes revocation based on certain felony convictions. Those whose enrollments are revoked under section 424.535(a)(3) may also be added to the preclusion list pursuant to different subsections of 42 C.F.R. §§ 422.2 and 423.100.

⁵  The state medical board found that he committed medical malpractice on September 28, 2012: he injected steroid and hypertonic saline into the subarachnoid space instead of the epidural space within the spinal column, threatening the health and safety of his patient. CMS Ex. 1 at 10-11, 29; CMS Ex. 4 at 5.