Mohamad Och, CR6429 (2024)

DECISION

This decision affirms the Centers for Medicare and Medicaid Services’ (CMS) determination to revoke the Medicare enrollment and billing privileges of Petitioner, Dr. Mohamad Och, effective January 1, 2022, and CMS’s decision to add Petitioner to the CMS Preclusion List, effective April 11, 2022.

I. Background and Procedural History

Petitioner is a physician who participated in the Medicare program as a supplier of services.  By letter dated December 2, 2021, CMS, through its contractor National Government Services (NGS), notified Petitioner that his Medicare billing privileges were bring revoked, effective January 1, 2022, because his Drug Enforcement Administration (DEA) Certificate of Registration (COR) was suspended.  CMS Ex. 2 at 1.  The letter also informed Petitioner that he was added to the CMS Preclusion List and that he was subject to a five-year re-enrollment bar. CMS Ex. 2 at 1, 3.

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CMS received Petitioner’s request for reconsideration on February 5, 2022.  CMS Ex. 1; see CMS Ex. 3.  On April 11, 2022, CMS issued a reconsidered determination which upheld the initial decision to revoke Petitioner’s billing privileges and to add Petitioner to the CMS Preclusion List. CMS Ex. 1.

On June 10, 2022, Dr. Och, through counsel, timely requested a hearing before an Administrative Law Judge (ALJ) to contest the revocation of his Medicare enrollment and billing privileges and placement on the CMS Preclusion List.  In response to Petitioner’s hearing request, the Civil Remedies Division (CRD) issued an acknowledgment letter and standing prehearing order, which set forth a schedule for briefing, submission of supporting evidence, and other requirements.

On July 18, 2022, CMS filed a combined Prehearing Brief (CMS Br.) and Motion for Summary Judgment, along with 13 exhibits (CMS Exs. 1-13). 

On September 22, 2022, Petitioner filed a Prehearing Brief and Opposition to Respondent’s Motion for Summary Judgment (P. Br.) along with 9 exhibits (P. Exs. 1-9). 

CMS filed a reply to Petitioner’s brief on October 4, 2022.

II. Admission of Exhibits and Decision on the Record

CMS and Petitioner both admitted the Request for Reconsideration as evidence in CMS Ex. 1 and P. Ex. 4.  Petitioner argues that the Request for Reconsideration was only submitted to show the process of how the instant case developed.  Petitioner objects to CMS Ex. 1 to the extent that CMS admitted it for the truth of the matter asserted.  P. Br. at 3.  Similarly, both CMS and Petitioner filed the DEA Order as evidence in P. Ex. 1 and CMS Ex. 4.  Petitioner argues that the only purpose of admitting the DEA Order is to chronicle how the instant case was developed.  P. Br. at 2.  Petitioner objects to CMS Ex. 4 and the use of the substance of the DEA Order as evidence in this case because he has not had the opportunity to cross-examine the agents involved in the DEA investigation.  P. Br. at 2.  Petitioner’s objections to CMS Ex. 1 and 4 are overruled.  The exhibits are relevant and material to this case.  Each exhibit will be provided the appropriate weight and consideration.  CMS Exs. 1-13 are admitted into evidence. 

CMS did not object to any of Petitioner’s proposed exhibits.  Therefore, Petitioner’s Exhibits 1 through 9 are admitted into the record.  

Neither party identified witnesses to testify in this matter or requested cross‑examination of an opposing party’s witnesses.  Consequently, an in-person hearing is not necessary, and this decision will be issued based on the written record.  Civ. R. Div. P. § 19(d).  CMS’s Motion for Summary Judgment is denied as moot.

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III. Issues

Whether CMS has a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(13); and

Whether CMS has a legal basis to place Petitioner on the CMS Preclusion List, as defined at 42 C.F.R. §§ 422.2 and 423.100. 

IV. Jurisdiction

This tribunal has jurisdiction to hear and decide the issues in this case.  42 C.F.R. §§ 498.3(b)(17), (20); 498.5(l)(2), (n)(2); see also 42 U.S.C. § 1395cc(j)(8); 42 C.F.R. § 498.1(g). 

V. Legal Authorities

As a physician, Petitioner was enrolled in the Medicare program as a supplier.  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.  Once enrolled, CMS may revoke a supplier’s privileges for any reason stated in 42 C.F.R. § 424.535(a).  When CMS revokes enrollment, it will establish a re-enrollment bar from one‑to‑ten years in duration.  42 C.F.R. § 424.535(c).  If CMS revokes a supplier’s enrollment and establishes a re-enrollment bar, CMS may also add the supplier to the CMS Preclusion List if CMS determines that the basis for revocation is detrimental to the best interests of the Medicare program.  42 C.F.R. §§ 422.2, 423.100. 

A supplier may request a hearing before an ALJ to contest a revocation or inclusion on the CMS Preclusion List.  42 C.F.R. §§ 498.3(b)(17), (20); 498.5(l)(2), (n)(2).  However, “the right to review of CMS’s determination by an ALJ serves to determine whether CMS had the authority to revoke [the supplier’s] Medicare billing privileges, not to substitute the ALJ’s discretion about whether to revoke.”  Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (emphasis omitted).  A supplier may administratively appeal an ALJ’s decision.  42 C.F.R. §§ 498.5(l)(3), (n)(3); 498.80.  

VI. Findings of Fact

1. Dr. Och is a licensed medical doctor who has been practicing psychiatry in Massachusetts since 1984.  CMS Ex. 3 at 2.
2. Petitioner was registered with the DEA as a practitioner authorized to dispense controlled substances.  CMS Ex. 4.

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3. On July 17, 2017, the DEA issued a letter entitled “Order to Show Cause and Immediate Suspension of Registration” notifying Petitioner that his COR was suspended immediately. The letter stated, “your continued registration constitutes an imminent danger to the public health and safety.”  CMS Ex. 4 at 1. The letter went on to state that the suspension was imposed because on “six occasions between August 1, 2016 and February 1, 2017, you issued prescriptions for controlled substances outside of the usual course of your professional practice.  These visits revealed that you interacted with patients in a cursory manner and issued prescriptions in a factory-like manner, outside of the usual course of professional practice of medicine.”  CMS Ex. 4 at 2.
4. Specifically, the DEA noted that on August 1, 2016, Petitioner issued a prescription to a patient known as “Scott Johnson.”  After visiting with the patient for less than five minutes, Petitioner prescribed 60 tablets of Adderall 20 mg.  Adderall is an amphetamine mixture, that is listed as a Schedule II controlled substance.  CMS Ex. 4 at 3.  On August 29, 2016, Petitioner met with Scott Johnson again, and, after spending three minutes with the patient, prescribed 60 tablets of Adderall 20 mg and 60 tablets of Xanax .5 mg.  Xanax is a Schedule IV controlled substance.  CMS Ex. 4 at 3.  On September 27, 2016, Petitioner issued Scott Johnson 60 tablets of Adderall 20 mg and 60 tablets of Xanax .5 mg after spending one minute and forty seconds examining the patient.  CMS Ex. 4 at 3-4.  Scott Johnson was an undercover DEA agent.  P. Br. at 5-6.
5. Additionally, the DEA noted that on October 2, 2016, Petitioner met with a patient known as “Paul Conway” for less than five minutes before issuing a prescription for 30 tablets of Adderall 20 mg.  On November 9, 2016, Petitioner met with Paul Conway again and, after meeting for less than three minutes, prescribed 60 tablets of Adderall 20 mg and 60 tablets of Xanax .5 mg.  On February 1, 2017, Petitioner again met with Paul Conway for less than two minutes before prescribing 60 tablets of Adderall 20 mg and 60 tablets of Xanax .5 mg.  CMS Ex. 4 at 4.  Paul Conway was an undercover DEA agent.  P. Br. at 5-6. 
6. The Massachusetts Prescription Awareness Tool (MPAT) showed that from December 2016 through May 2017, Petitioner issued 3,254 prescriptions for benzodiazepines, while the average psychiatric prescriber in the same county issued just 266 prescriptions.  The MPAT also showed that Petitioner issued 2,689 prescriptions for controlled stimulants while the average psychiatric provider issued just 239 prescriptions.  CMS Ex. 4 at 5.
7. On July 15, 2021, Petitioner was indicted by a grand jury in the United States District Court for the District of Massachusetts for:  two counts of Distribution of Adderall, four counts of Distribution of Adderall and Xanax, two counts of Distribution

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of Adderall and Klonopin, and two counts of Health Care Fraud. CMS Ex. 5.

8. On December 2, 2021, NGS informed Petitioner that his Medicare enrollment and billing privileges were being revoked and that a five-year re-enrollment bar was being imposed.  CMS Ex. 2.
9. Petitioner timely requested reconsideration of the NGS decision.  On April 11, 2022, CMS issued a reconsidered determination upholding the revocation of Petitioner’s billing privileges and Petitioner’s inclusion on the CMS Preclusion List.

VII. Analysis and Conclusions of Law

1. CMS acted within its legal authority to revoke Petitioner’s Medicare enrollment and billing privileges because Petitioner’s DEA COR was revoked.

The regulations provide that CMS has the discretion to revoke a Medicare supplier’s enrollment and billing privileges if:  “[a] physician or other eligible professional’s Drug Enforcement Administration (DEA) Certificate of Registration to dispense a controlled substance is currently suspended or revoked or is surrendered in response to an order to show cause.”  42 C.F.R. § 424.535(a)(13).  It is undisputed that the DEA suspended Petitioner’s COR, effective July 17, 2017.  CMS Ex. 4; P. Br. at 1-2.  Therefore, CMS had the legal authority to revoke Petitioner’s Medicare enrollment and billing privileges. 

While Petitioner does not dispute that his DEA COR was suspended at the time of the revocation, he makes several arguments as to why the revocation should not be imposed.  See P. Br. at 6-7 (“[Petitioner] does not contest that the DEA summarily suspended his federal [COR] to prescribe Schedule II through V controlled substances . . . though, he certainly contests the factual and legal basis upon which that summary suspension was issued.”).  Specifically, Petitioner questions CMS’s use of discretion and argues that the initial revocation notice issued by CMS was deficient.  Petitioner’s arguments are addressed below. 

1. CMS exercised its discretion to revoke Petitioner’s Medicare enrollment and billing privileges.

Petitioner questions CMS’s use of discretion and argues that CMS erred by not providing an explanation of its use of discretion.  P. Br. at 15.  Contrary to Petitioner’s assertions, CMS is not required to explain how it decides to use its discretion.  The Departmental Appeals Board (Board) has rejected similar arguments, ruling that there are no

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regulations which require CMS to “explain the reasons for exercising its discretion.”Douglas Bradley, M.D., DAB No. 2663 (2015).

Petitioner disputes the underlying facts surrounding the suspension of his COR.  Petitioner also argues that CMS may not base its use of discretion on the indictment because “[t]here has been no disposition of that indictment.”  P. Br. at 7.  Additionally, Petitioner contends that the regulations do not allow for revocation of billing privileges based upon an indictment.  P. Br. at 7, 14.  However, it is the suspension of Petitioner’s COR that serves as the basis for this revocation, not the indictment.  CMS has the discretion to consider the reasons stated by the DEA for the suspension of a COR.  When promulgating 42 C.F.R. § 424.535(a)(13), the Secretary made it clear that the DEA’s decision to revoke a COR was a cause for concern.  The Secretary stated that “the loss of the ability to prescribe drugs via a suspension or revocation of a DEA Certificate or by state action is a clear indicator that a physician or eligible professional may be misusing or abusing his or her authority to prescribe such substances” and that “we are concerned that a physician or eligible professional’s improper prescribing practices may be duplicated in the Medicare program.”  79 Fed. Reg. 29,844, 29,896 (May 23, 2014).  In this case, the DEA found the allegations against Petitioner to be so concerning that an immediate suspension was imposed, and it was determined that there was an imminent danger to public health or safety that justified suspending Petitioner’s COR during the pendency of the DEA proceedings.  CMS Ex. 4 at 1-2, 5.  The suspension of Petitioner’s COR was the triggering event for the revocation imposed by CMS. As previously indicated, there are no regulations which require CMS to “explain the reasons for exercising its discretion.”  Douglas Bradley, M.D., DAB No. 2663. 

Lastly, Petitioner argues that CMS’s use of discretion is arbitrary and capricious.  P. Br. at 13, 17-18.  I am tasked with determining whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment.  An ALJ does not have the authority to review CMS’s exercise of its discretion to revoke Petitioner’s billing privileges and, therefore, has “no authority to determine whether that exercise [of discretion] was arbitrary and capricious based on the mitigating circumstances alleged by Petitioner.”  Blair Allen Nelson, M.D., DAB No. 3024 (2020), citing Saeed A. Bajwa, M.D., DAB No. 2799 at 16 (2017); see also Lilia Gorovits, M.D., P.C., DAB No. 2985 at 17 (2020); Douglas Bradley, M.D., DAB No. 2663 at 13.  I do not have the authority to review Petitioner’s constitutional challenges, nor to grant equitable relief.  Funmilola Mary Taiwo, DAB No. 2995 at 9-10 (2020); Salvacion Lee, M.D., DAB No. 1850 (2002).  The Board has explained that “[t]he ALJ’s . . . role in an appeal of CMS’s . . . revocation of enrollment in the Medicare program is to determine whether CMS had a legal basis for its action,” and “[i]f it did, then [the ALJ is] bound to affirm the . . . revocation.”  Dr. Robert Kanowitz, DAB No. 2942 at 4 (2019).  The Board has further explained that “the right to review of CMS’s determination by an ALJ serves to determine whether CMS had the authority to revoke [the supplier’s] Medicare billing privileges, not to substitute the ALJ’s discretion about whether to revoke.”  Letantia Bussell, M.D., DAB No. 2196 at 13 (emphasis omitted).

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Petitioner’s arguments regarding CMS’s use of discretion are unavailing. Based on the facts and circumstances of this case, I find that CMS acted within its discretion to revoke Petitioner’s Medicare enrollment and billing privileges because his COR was suspended by the DEA.  

b. The initial revocation notice issued by NGS was sufficient.

Petitioner argues that the initial notice issued by NGS was insufficient to inform him of the basis of the CMS revocation, and that the notice lacked proper analysis.  P. Br. at 9. Petitioner states that he was deprived of “the opportunity to resolve the issues at the initial determination stage” and is now “compelled to undergo the process of a hearing.”  Request for Hearing at 4.  Petitioner’s argument regarding the sufficiency of the initial notice of revocation is unavailing.  The notice includes the basis for the revocation, the effect of the revocation, and instructions on how to request reconsideration as required by 42 C.F.R. § 498.20(a)(1). I find that the initial notice was sufficient to put Petitioner on notice as to the basis and effect of the revocation.

2. CMS has the authority to impose a five-year re-enrollment bar.

Petitioner has not challenged, nor do I have the authority to review, the re-enrollment bar imposed by CMS.  When CMS revokes the Medicare enrollment of a supplier, it must impose a re-enrollment bar from one‑to‑ten years in length depending on the severity of the basis for revocation. 42 C.F.R. § 424.535(c)(1)(i).  Here, CMS has imposed a five-year re-enrollment bar.  CMS Ex. 2. 

Board decisions have interpreted the regulations as indicating the re-enrollment bar is not subject to ALJ review.  E.g., Lilia Gorovits, M.D., P.C., DAB No. 2985 at 15-16; Vijendra Dave, M.D., DAB No. 2672 at 9 (2016); see also Shah v. Azar, 920 F.3d 987, 998-99 (5th Cir. 2019) (indicating that CMS’s decision as to the length of the re-enrollment bar is accorded significant deference).  Therefore, I cannot review whether a five-year re-enrollment bar is appropriate in this case. 

3. CMS had a legal basis to add Petitioner to the Preclusion List effective April 11, 2022, the date of the reconsidered determination.

The CMS Preclusion List is comprised of providers and suppliers who are precluded from receiving payment for Medicare Advantage items and services or Medicare Part D drugs furnished or prescribed to Medicare beneficiaries.  CMS may place an individual or entity on the Preclusion List if: 

1. 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).

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(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:

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.
3. Any other evidence that CMS deems relevant to its determination.

42 C.F.R. § 422.2.

When CMS made the decision to add Petitioner to the Preclusion List, Petitioner’s Medicare enrollment was revoked pursuant to 42 C.F.R. § 424.535(a)(13).  CMS Ex. 2.  Petitioner was also subject to a five-year re-enrollment bar under 42 C.F.R. § 424.535(c).  CMS Ex. 1 at 5 (establishing the five-year re-enrollment bar).  In the reconsidered determination, CMS found Petitioner’s conduct leading to the revocation of his Medicare enrollment to be “very serious.”  CMS Ex. 1 at 6.  CMS also noted that the suspension of a DEA COR is a clear indicator that the physician or eligible professional may be misusing their authority to prescribe controlled substances.  CMS Ex. 1 at 6.  Based on the underlying facts and circumstances, CMS determined that the conduct underlying Petitioner’s revocation was detrimental to the best interests of the Medicare program and therefore warranted placing Petitioner on the Preclusion List.  CMS Ex. 1 at 8. 

In reviewing CMS’s decision to place a provider or supplier on the Preclusion List, an ALJ is not permitted to re-weigh the factors set forth in 42 C.F.R. §§ 422.2 and 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, the ALJ may not substitute their 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).

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VIII. Conclusion

CMS has established a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges and to include Petitioner on its Preclusion List.  Therefore, the revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(13), effective January 1, 2022, and the inclusion of Petitioner on the CMS Preclusion List, effective April 11, 2022, are affirmed.