Renee Hartz, MD and RS Hartz MD, SC, DAB CR6458 (2024)

DECISION

National Government Services (NGS), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioners, Renee Hartz, MD (Dr. Hartz) and her practice, RS Hartz MD (the practice), pursuant to 42 C.F.R. § 424.535(a)(8)(ii) because Petitioners submitted claims that failed to meet Medicare requirements. NGS also revoked Dr. Hartz’s enrollment pursuant to 42 C.F.R. § 424.535(a)(9) because she did not report her medical license suspension, and added Petitioners to CMS’s Preclusion List. CMS subsequently issued a reconsidered determination that upheld NGS’s determinations. I affirm the revocation of Petitioners’ Medicare enrollment and billing privileges and their placement on the Preclusion List.

I. Background and Procedural History

Dr. Hartz is a physician who had been enrolled in the Medicare program. CMS Exs. 14 at 5-6 (enrollment record for PTAN # F400204707, reassigning benefits to the practice, effective March 2, 2015); 15 at 4 (enrollment record for PTAN # F400625670, reassigning benefits to Superior Health and Wellness (SHW) of Gurnee, LTD, effective December 23, 2019). The practice (PTAN # F100204597) was also enrolled in the

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Medicare program and received reassigned benefits from Dr. Hartz, who was listed as the sole owner and individual with managing control. CMS Ex. 13 at 4, 6.

On November 15, 2021, the Division of Professional Regulation (DPR) of the Department of Financial and Professional Regulation of the State of Illinois served a 20-day notice on Dr. Hartz informing her that the Medical Disciplinary Board had recommended that her Illinois Physician and Surgeon License be indefinitely suspended.¹ CMS Ex. 11 at 8-9.  DPR served the order via email to the same “AOL” email address that Dr. Hartz provided to CMS (CMS Exs. 11 at 6, 8, 9; 13 at 3; 14 at 2) and used to communicate with DPR personnel in April 2022.  CMS Ex. 11 at 15-18.

DPR’s November 15, 2021 notice afforded Dr. Hartz 20 days to file a motion for re-hearing to challenge the Medical Disciplinary Board’s "Findings of Fact, Conclusions of Law and Recommendation to the Director"² that recommended that her medical license be indefinitely suspended.  CMS Ex. 11 at 8.  In its determination, the Medical Disciplinary Board discussed that Dr. Hartz had entered into collaborative agreements with nurse practitioners and physician assistants and had supervised their work, and that Dr. Hartz or one of the nurse practitioners or physician assistants she supervised signed orders for trigger-point injections that were “not medically necessary” and involved a non-FDA approved substance.  CMS Ex. 11 at 12-13.  The Medical Disciplinary Board determined that Dr. Hartz violated 225 Ill. Comp. Stat. 60/22(A)(5), which pertains to “engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public,” and 225 Ill. Comp. Stat. 60/22(A)(10), which pertains to “making a false or misleading statement regarding their skill or the efficacy or value of the medicine, treatment, or remedy prescribed by them at their direction in the treatment of any disease or other condition of the body or mind.”  Dr. Hartz’s license suspension became effective on February 20, 2022.  CMS Exs. 4 at 3; 11 at 7.  The Chief of Medical Prosecutions for DPR informed Dr. Hartz that the order of her license suspension “was sent to [her] when [her] license was suspended in February.” CMS Ex. 11 at 15.

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Along with Petitioners, two other entities are involved in the claims at issue.  Based on Petitioners’ account, the “Chicago Center for Myofasical [sic] Pain Relief (CCMPR),” through a billing company, billed insurance providers under the practice’s NPI through September 14, 2022.  P. Br. at 5.  Petitioners claim that Dr. Hartz “last reviewed and signed records for CCMPR on April 6, 2022, one week before she found out her License was suspended.”  P. Br. at 5.  Petitioners claim that Dr. Hartz found out about her suspension from the owner of SHW,³ and not from DPR, and claim that she “never received the email notifications relating to her medical licensure.”⁴  P. Br. at 5.  SHW was the billing provider on claims listing Dr. Hartz’s PTAN as the rendering provider.  See CMS Ex. 7.⁵

On February 15, 2023, NGS revoked the practice’s enrollment and billing privileges (CMS Ex. 8), and on February 22, 2023, NGS revoked Dr. Hartz’s individual billing numbers (CMS Exs. 9, 10).  With respect to Petitioners’ billing numbers, NGS explained that it had conducted a data analysis of claims and determined that Dr. Hartz had been listed as the rendering provider during the period of her license suspension, and that billing for services during a period of suspension amounted to an abuse of billing privileges.  CMS Exs. 8 at 1, 5-6 (list of claims for which the practice was the billing provider and Dr. Hartz was the rendering provider); 9 at 1, 5-6 (list of claims for which Dr. Hartz was the rendering provider and the practice was the billing provider); 10 at 1, 5-6 (list of claims for which Dr. Hartz was the rendering provider and SHW was the billing provider); see 42 C.F.R. § 424.535(a)(8)(ii). NGS also determined, with respect to Dr. Hartz’s enrollment under both billing numbers, she had not notified CMS of her license suspension, as required by 42 C.F.R. § 424.516(d)(1). CMS Exs. 9 at 1; 10 at 1; see 42 C.F.R. § 424.535(a)(9).  NGS imposed a 10-year bar to re-enrollment and placed Petitioners on CMS’s Preclusion List.  CMS Exs. 8 at 1-2, 4; 9 at 2, 4; 10 at 2, 4.

Petitioners, through their current counsel, submitted a request for reconsideration in March 2023.  Petitioners argued they were unaware of Dr. Hartz’s suspension until April 13, 2022, and that a billing company continued to bill under her NPI after the last day she had seen patients or signed records on April 6, 2022.  CMS Ex. 11 at 2.  Petitioners also vaguely disputed the merits of Dr. Hartz’s license suspension and raised broad due process arguments regarding her license suspension.  CMS Ex. 11 at 3.

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CMS, through its Provider Enrollment & Oversight Group, issued reconsidered determinations upholding the revocation of Dr. Hartz’s (CMS Exs. 2, 3) and the practice’s (CMS Ex. 1) billing numbers on June 28, 2023.  CMS determined that the billing for noncompliant claims while Dr. Hartz’s license was suspended was not “sporadic,” but rather, was “ongoing and systemic.” CMS Exs. 1 at 5; 2 at 5; 3 at 5. CMS also upheld Petitioners’ placement on the Preclusion List.  CMS Exs. 1 at 7-8; 2 at 8-10; 3 at 8-10.

Petitioners filed a request for an administrative law judge (ALJ) hearing on August 24, 2023.  Thereafter, the Civil Remedies Division acknowledged receipt of Petitioners’ 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 motion for summary judgment and pre-hearing brief, along with 15 proposed exhibits (CMS Exs. 1-15).  Petitioners filed a brief and two proposed exhibits (P. Exs. 1-2).  In the absence of any evidentiary objections, I admit CMS Exs. 1-15 and P. Exs. 1-2 into the evidentiary record. 

CMS has not requested an opportunity to cross-examine Petitioners’ witness (P. Ex. 1), and therefore a hearing for the purpose of cross-examination is unnecessary.  Pre‑Hearing Order §§ 12-14. I consider the record to be closed and the matter ready for a decision on the merits.⁶

II. Issues

Whether CMS had a legitimate basis to uphold the revocation of Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).

Whether CMS had a legitimate basis to uphold the revocation of Dr. Hartz’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).

Whether CMS had a legitimate basis to uphold Petitioners’ placement on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.

III. Jurisdiction

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

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

1. Petitioners are Dr. Hartz and the medical practice that she owns and manages.
2. DPR suspended Dr. Hartz’s medical license effective February 20, 2022.
3. Dr. Hartz reassigned benefits to SHW, and SHW submitted 114 claims reviewed by CMS and NGS that listed Dr. Hartz as the rendering provider.
4. Dr. Hartz reassigned benefits to the practice, and the practice is listed as the billing provider on 57 claims reviewed by CMS and NGS.
5. Dr. Hartz claims that CCMPR “billed insurance providers under [the practice]” and she “last signed and reviewed records for CCMPR on April 6, 2022.”
6. Dr. Hartz claims that, through the owner of SHW, she first became aware of her suspension on April 13, 2022.
7. Even though Dr. Hartz’s license had been suspended effective February 20, 2022, she did not inform CMS or a contractor of her license suspension at any time after it became known to her.
8. NGS revoked the practice’s Medicare enrollment and billing privileges effective March 17, 2023, and Dr. Hartz’s Medicare enrollment and billing privileges, effective March 24, 2023, pursuant to 42 C.F.R. § 424.535(a)(8)(ii), because Petitioners billed for the services of a physician who lacked current state licensure.
9. NGS revoked Dr. Hartz’s Medicare enrollment and billing privileges effective March 24, 2023, pursuant to 42 C.F.R. § 424.535(a)(9), because Dr. Hartz did not report her license suspension to CMS or a contractor.
10. NGS informed Dr. Hartz she would be placed on CMS’s Preclusion List pursuant to 42 C.F.R. § 422.2 and 423.100 and informed the practice that it would be placed on CMS’s Preclusion List pursuant to 42 C.F.R. § 422.2.

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11. On June 8, 2023, CMS upheld the revocation of Petitioners’ Medicare enrollment and billing privileges and their placement on the Preclusion List.
12. Petitioners engaged in a pattern or practice of submitting claims that failed to meet Medicare requirements when they repeatedly billed for services that were provided by a physician with a suspended medical license, and after considering the requisite factors, CMS had a legitimate basis to uphold the revocation of Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).
13. Dr. Hartz was required, pursuant to 42 C.F.R. § 424.516(d)(1), to report her license suspension within 30 days, and CMS had a legitimate basis, pursuant to 42 C.F.R. § 424.535(a)(9), to uphold the February 22, 2023 determination that revoked her enrollment and billing privileges based on her failure to report her license suspension.
14. Petitioners have not identified any factual or legal error in CMS’s determinations upholding their inclusion on the Preclusion List.
15. Because Petitioners’ Medicare enrollment has been revoked and they have been barred from re-enrollment, and the conduct underlying their revocations is detrimental to the best interests of the Medicare program, CMS had a legitimate basis to uphold Petitioners’ placement on the Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.

Pursuant to 42 U.S.C. § 1395cc(j)(1)(A), CMS has promulgated enrollment regulations.  See 42 C.F.R. § 424.500 et seq.  These regulations give CMS the authority to revoke the billing privileges of an enrolled supplier if CMS determines that certain circumstances exist.  42 C.F.R. § 424.535(a).  Relevant to this case, CMS may revoke a supplier’s billing privileges when it determines that the supplier has abused its billing privileges.  42 C.F.R. § 424.535(a)(8).

In November 2021 the Secretary substantially revised section 424.535(a)(8), explaining, among other things, that the wording of the regulation “hampered” its ability to revoke certain suppliers and that non-compliant billing for relatively brief periods can harm the Medicare program.  86 Fed. Reg. 64,996, 65,334 (Nov. 19, 2021). The Secretary also discussed that the revised regulation “would better enable CMS to address these non-compliant periods by restricting the scope of denial percentages to a shorter duration.”  Id. The rulemaking removed subsection 424.535(a)(8)(ii)(B) because the reason for a claim denial is not “particularly germane,” and also removed subsection 424.535(a)(8)(ii)(D) “altogether” because “short but very intense periods of improper

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billing can endanger the Medicare program no less than a longer pattern of non-compliant yet merely moderate-volume billing.”  Id.  The Secretary also removed subsection (E) pertaining to the length of the provider or supplier’s enrollment, explaining that the length of enrollment has no bearing with the “main issue” being “the behavior itself and not the period of enrollment.”  86 Fed. Reg. at 65,335.  The rulemaking added a new provision in subsection (C) that allows CMS to “consider the type of billing non-compliance and the precise facts surrounding said non-compliance (to the extent this can be determined)." Id.

Addressing comments received from the public, the Secretary stated that “providers and suppliers have a responsibility to always submit correct claims,” and that repeated non-compliant billing for a “comparatively short [period] does not remove this responsibility.” 86 Fed. Reg. at 65,335.  The Secretary further explained that “the core consideration is the incorrect claim submission itself rather than the reason it occurred.” And that “[e]ven if a series of non-compliant claims did not involve any deceit by the provider or supplier, the fact remains that the latter did not adhere to Medicare claim submission requirements.” Id.

The revised version of 42 C.F.R. § 424.535(a)(8)(ii) that became effective on January 1, 2022, allows CMS to revoke enrollment and billing privileges under the following circumstances:  

(ii)  CMS determines that the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  In making this determination, CMS considers, as appropriate or applicable, the following:

(A)  The percentage of submitted claims that were denied during the period under consideration.

(B)  Whether the provider or supplier has any history of final adverse actions and the nature of any such actions.

(C)  The type of billing non-compliance and the specific facts surrounding said non-compliance (to the extent this can be determined).

(D)  Any other information regarding the provider or supplier’s specific circumstances that CMS deems relevant to its determination.

42 C.F.R. § 424.535(a)(8)(ii).

Additionally, CMS may revoke enrollment when a provider or supplier does not comply with the reporting requirements specified in 42 C.F.R. § 424.516(d), which as relevant here, requires a physician to report an adverse legal action within 30 days.  42 C.F.R. §

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424.535(a)(9). CMS must consider certain factors outlined at 42 C.F.R. § 424.535(a)(9)(i)-(iv) in determining whether to revoke enrollment.

When a provider or supplier’s enrollment has been revoked, CMS is authorized to impose a bar on re‑enrollment for a minimum of one year, but no more than ten years.  42 C.F.R. § 424.535(c)(i).

Additionally, 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:

1. The seriousness of the conduct underlying the...revocation.
2. The degree to which the . . . conduct could affect the integrity of the [Medicare/Part D] program.
3. Any other evidence that CMS deems relevant to its determination...

42 C.F.R. §§ 422.2, 423.100.

CMS appropriately considered the factors at 42 C.F.R. § 424.535(a)(8)(ii)(A)-(D) when it determined that Petitioners had a pattern or practice of submitting claims that fail to meet Medicare requirements.

Petitioners concede that Dr. Hartz’s license to practice medicine was suspended effective February 20, 2022.  P. Br. at 12 ("Petitioner does not deny that her License was indeed suspended at times relevant in this matter..."). Pursuant to 42 C.F.R. § 410.20(b), a physician billing Medicare for physician services must be “legally authorized to practice by the State in which he or she performs the functions or actions, and who is acting within the scope of his or her license.  Likewise, and pursuant to 42 C.F.R.

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§ 424.516(a)(2), a supplier must comply with state licensure requirements based on the type of services provided by the supplier. 

With respect to the revocation of the practice’s billing number, Petitioners claim that CCMPR billed insurance providers under the practice’s NPI.  P. Br. at 5.  Petitioners claim that Dr. Hartz “last reviewed and signed records” in her capacity as medical director for CCMPR on April 6, 2022.  P. Br. at 5.  The evidence also establishes that Dr. Hartz reassigned her benefits to the practice.  CMS Ex. 13 at 4 (enrollment record).  Petitioners allege that Dr. Hartz informed CCMPR of her license suspension and, in May 2022, “requested that she be removed from CCMPR’s website.” P. Br. at 5.  Dr. Hartz claims that “unknown to [her],” CCMPR continued to submit claims for reimbursement through September 14, 2022.⁷ P. Br. at 5.

Even accepting, for purposes of this discussion, that any billing by CCMPR on behalf of the practice was unauthorized for service dates after April 6, 2022, the last day Dr. Hartz purportedly “reviewed and signed records,” the uncontroverted evidence shows that the practice is listed as the billing provider on more than 50 out of 57 claims that were submitted, with Dr. Hartz, with a suspended license at the time, listed as the rendering provider on all of those claims.  CMS Ex. 6; see CMS Ex. 8 at 1 (revocation determination for the practice).  Thus, Petitioners caused more than 50 claims for reimbursement of services provided by a then-unlicensed physician to be submitted. 

Dr. Hartz did not address the 144 claims submitted by SHW that were the subject of the revocation of one of her billing numbers.  See CMS Exs. 7 (list of claims); 10 (revocation determination); 15 at 4 (enrollment record).  Although Dr. Hartz claimed she last reviewed records for CCMPR on April 6, 2022, she did not address the claims for which SHW was the billing provider.  To the extent Dr. Hartz claims she “left the practice in autumn 2014,” her enrollment record reflects that she has reassigned benefits to SHW since December 23, 2019.  CMS Ex. 15 at 4.  In fact, Dr. Hartz claimed that she learned of her medical license suspension from the owner of SHW.  P. Br. at 5. Notably, SHW billed through September 26, 2022, for services provided by Dr. Hartz.  CMS Ex. 7 at 3.

CMS appropriately considered the percentage of denied claims during the period under consideration, as required by 42 C.F.R. § 424.535(a)(8)(ii)(A).

CMS is required to consider “[t]he percentage of submitted claims that were denied during the period under consideration.” 42 C.F.R. § 424.535(a)(8)(ii)(A). Even accepting Petitioners’ claim that Dr. Hartz did not authorize CCMPR to submit claims listing her as the rendering provider after April 6, 2022, the record reflects that more than

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50 of the 57 claims for services listing the practice as the billing provider and Dr. Hartz as the rendering provider improperly sought reimbursement for services provided by a physician who was unlicensed at the time.  CMS Ex. 6 at 1-2; see 42 C.F.R. § 410.20(b) (requiring that services be furnished by a physician who is “legally authorized to practice” medicine).  Likewise, Dr. Hartz is listed as the rendering provider on 144 claims submitted by SHW that post-date her license suspension.  CMS Ex. 7 at 1-4.  Petitioners do not dispute that Dr. Hartz provided the services that were the subject of these claims or that the services provided post-date her February 20, 2022 license suspension. 

CMS explained that Dr. Hartz’s medical license was indefinitely suspended on February 20, 2022, and she continued to render healthcare services following her license suspension.  CMS further determined that because Dr. Hartz lacked the required medical license, the submission of claims did not comply with Medicare requirements pursuant to 42 C.F.R. § 424.516(a)(2).  CMS Exs. 1 at 4-5 (pertaining to the claims in which the practice was listed in CMS Ex. 6 as the billing provider, with Dr. Hartz as the billing provider); 2 at 7 (pertaining to the claims in which Dr. Hartz was listed in CMS Ex. 6 as the rendering provider, with the practice as the billing provider); 3 at 7 (pertaining to the claims in which Dr. Hartz was listed in CMS Ex. 7 as the rendering provider, and SHW was listed as the billing provider). 

In total, Petitioners rendered services and/or were the billing provider for well more than 100 noncompliant claims for services that had been provided by a physician with an indefinitely suspended license.  Even considering Petitioners’ claim that they were unaware of the license suspension until April 13, 2022, Petitioners did not, at any time, inform CMS or a contractor of the license suspension.⁸  See CMS Exs. 2 at 7; 3 at 7 (“Dr. Hartz did not report the suspension of her medical license, timely or at all.”).

CMS appropriately considered the percentage of denied claims as a factor, as required by 42 C.F.R. § 424.535(a)(8)(ii)(A). 

CMS appropriately considered that the record does not indicate a history of final adverse actions outside of the instant license suspension and enrollment revocations.

CMS determined that the record does not contain any evidence that Petitioners have been the subject of any other final adverse action.  42 C.F.R. § 424.535(a)(8)(ii)(B).

CMS appropriately considered the type of billing noncompliance and the specific facts surrounding the noncompliance.

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CMS considered that Dr. Hartz lacked the necessary state licensure to render services to Medicare beneficiaries beginning on February 20, 2022, and her practice and another entity billed for the services she provided as a then-unlicensed physician.  CMS Exs. 1 at 5; 2 at 6; 3 at 6 (citing 42 C.F.R. § 424.516(a)(2) (requiring compliance with licensure requirements)).

In considering the factor at 42 C.F.R. § 424.535(a)(8)(ii)(C), CMS discussed its 2008 rulemaking for the instant regulation, explaining that providers are responsible for the claims they submit or that are submitted on their behalf.  CMS Exs. 1 at 6; 2 at 6; 3 at 6 (citing 73 Fed. Reg. 36,448, 36,455 (June 27, 2008)).⁹  CMS considered Petitioners’ arguments that they were unaware of the license suspension and determined that “it is ultimately [Petitioners’] responsibility to ensure that the claims it submits to Medicare for payment are compliant at the time they are submitted.”¹⁰ CMS Exs. 1 at 6; 2 at 6; 3 at 6.

CMS discussed the more than 100 claims that had been submitted during the period when Dr. Hartz’s license had been suspended.  CMS Exs. 1 at 6; 2 at 6; 3 at 6. While CMS considered Dr. Hartz’s claims that she did not receive notice of her license suspension, it nonetheless determined it is Petitioners’ “responsibility to ensure that the claims it submits for payment are compliant at the time they are submitted.” CMS Exs. 1 at 6; 2 at 6; 3 at 6.

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The evidence supports that CMS appropriately considered the factor at 42 C.F.R. § 424.535(a)(8)(ii)(C).

CMS considered other relevant information regarding specific circumstances.

With respect to Dr. Hartz’s billing privileges, CMS considered that billing continued under Dr. Hartz’s NPI until September 2022.  CMS Exs. 2 at 6-7; 3 at 6.  CMS also considered the basis for Dr. Hartz’s license suspension, which involved her being paid for or supervising services that involved “abusive billing,” namely injections that were determined to be not medically necessary and were billed for approximately $38,000 to an insurance company.  CMS Exs. 2 at 7; 3 at 7; see CMS Ex. 11 at 10-13.

CMS further discussed that the purported unawareness of Dr. Hartz’s license suspension was “extremely concerning and does not absolve [Petitioners] of [their] responsibility to submit only those claims that are in compliance with Medicare requirements”.  CMS Exs. 1 at 6; see CMS Exs. 2 at 6; 3 at 6 (containing similar language).  CMS noted that the license suspension was based on “substandard care” for procedures that were not medically necessary and involved non-approved substances. CMS Exs. 1 at 6; 2 at 6; 3 at 6. 

Based on its discussion, CMS appropriately considered the four factors outlined at 42 C.F.R. § 424.535(a)(8)(ii)(A)-(D) when it determined that Petitioners had engaged in a pattern or practice of abusive billing based on the continued submission of claims listing a suspended physician as the rendering provider and her practice as the billing provider.

The nature of my review is whether CMS and NGS were authorized to revoke Petitioners’ enrollment pursuant to 42 C.F.R. § 424.535(a)(8)(ii), and not whether I would have made the same determination in the first instance.  See, e.g., Dr. Robert Kanowitz, DAB No. 2942 at 4 (2014).  CMS considered the relevant factors outlined at 42 C.F.R. § 424.535(a)(8)(ii) and had a legitimate basis to revoke Petitioners’ enrollment. 

CMS had a legitimate basis to revoke Dr. Hartz’s enrollment under 42 C.F.R. § 424.535(a)(9) based on her failure to timely report her license suspension as required by 42 C.F.R. § 424.516(d).

Dr. Hartz does not dispute that her license was suspended effective February 20, 2022. Nor does Dr. Hartz claim that she ever reported her license suspension to CMS.¹¹

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CMS considered the four factors enumerated in 42 C.F.R. § 424.535(a)(9)(i)-(iv). Addressing the first two factors, CMS determined that Dr. Hartz never reported the “data in question,” even belatedly.  CMS Exs. 2 at 7; 3 at 7. With respect to the third factor at section 424.535(a)(9)(iii), CMS considered the information to be “plainly material” to Dr. Hartz’s continued enrollment because “the submission of claims . . . listing her as the rendering practitioner at a time when her medical license was suspended is a basis for the revocation of her enrollment” and CMS relies on “complete and accurate data to confirm the provider or supplier still meets all Medicare requirements.” CMS Exs. 2 at 7; 3 at 7.  Finally, and with respect to any other information that may be relevant, CMS determined that Dr. Hartz should have been aware of her license suspension, as such notice is publicly reported, and the basis for her license suspension involved her engaging “in substandard care by treating patients with procedures that were not medically necessary.” CMS Exs. 2 at 7-8; 3 at 7.

Because CMS considered the four factors at 42 C.F.R. § 424.535(a)(9)(i)-(iv) and supported its determination, it has shown a legitimate basis for revoking Dr. Hartz’s enrollment based on her failure to report her license suspension to CMS or its contractor.

Petitioners are subject to a 10-year 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 10 years when it has revoked a supplier’s enrollment. In its reconsidered determinations, CMS upheld the 10-year bar to reenrollment. CMS Exs. 1 at 6-7; 2 at 8; 3 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.

Linda Silva, P.A., DAB No. 2966 at 11 (2019). Petitioners have 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 Dave, DAB No. 2672at 11 ("CMS's determination regarding the duration of the re-enrollment bar is not reviewable.”)

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Petitioners do not identify any factual or legal error in CMS’s determinations upholding their placement on the Preclusion List.

Because I have upheld Petitioners’ revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii), and Petitioners are currently subject to a bar to re-enrollment, the first two requirements for inclusion on the Preclusion List are met.  42 C.F.R. §§ 422.2, 423.100.

As for the third requirement listed in 42 C.F.R. §§ 422.2 and 423.100, CMS determined that Petitioners’ conduct underlying their revocation was detrimental to the best interests of the Medicare program. CMS Exs. 1 at 7-8; 2 at 8-10; 3 at 8-10. CMS considered that the conduct, namely submitting claims during a period of license suspension, was “very serious,” and that “[t]he submission of claims for services rendered without proper state licensure not only jeopardizes the integrity of the Medicare program and the Medicare Trust Funds, but it also jeopardizes the safety of Medicare beneficiaries.” CMS Exs. 1 at 7; 2 at 9; 3 at 9. CMS noted the basis for Dr. Hartz’s license suspension, which it summarized was for “having engaged in substandard care by treating patients with procedures that were not medically necessary and substances which have not been medically approved by the FDA.” CMS Exs. 1 at 7-8; 2 at 9; 3 at 9 (all citing CMS Ex. 5 at 28). CMS also found it “relevant” that Petitioners claimed to be unaware of Dr. Hartz’s license suspension and she continued to see patients while her license was suspended, and Dr. Hartz, who is responsible for maintaining licensure and knowledge of her license status, presented a “very clear threat to the health and safety of Medicare beneficiaries and the integrity of the Medicare program.” CMS Exs. 1 at 8; 2 at 10; 3 at 10.

Petitioners argue that their “conduct related to billing practices [does] not meet ongoing and systematic or a pattern [or] practice that fails to meet Medicare requirements because Petitioner[s] [have] no prior history of such practice aside from the matter discussed herein.” P. Br. at 11. As previously discussed in the section upholding revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii), Petitioners were the billing and/or rendering provider in well more than 100 claims for reimbursement during the timeframe of Dr. Hartz’s license suspension, and Dr. Hartz, at no time, informed CMS or a contractor of her license suspension. Although not addressed by CMS, I stress that Dr. Hartz never notified CMS or its contractor of her license suspension, even after she became aware of it on April 13, 2022, as she claims. See P. Ex. 1 at 2 (addressing reimbursements from NGS and reporting income of “only $4,055.81” for the month of March 2022 at a time when her license had been suspended).

Petitioners also allege that suspension based on use of a non-FDA approved drug is erroneous because “Pitcher Plant is accepted by the FDA.” P. Br. at 11-12. As I previously stated, Petitioners cannot challenge Dr. Hartz’s license suspension in this forum. However, I note that while Petitioners narrowly challenged the finding that Dr. Hartz used a non-approved substance, they did not dispute the Medical Disciplinary

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Board’s findings that “the injections were not medically necessary” and “were not consistent with the standard of care,” both of which were also cited by CMS in support of upholding Petitioners’ placement on the Preclusion List. CMS Ex. 11 at 13; see CMS Exs. 1 at 7-8; 2 at 9; 3 at 9.

V. Conclusion

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

Endnotes

¹ Illinois law permits suspension notices to be “served by personal delivery, email to respondent’s email address of record, or mail to the respondent’s address of record.” 225 ILCS 60/36(D).

² The Medical Disciplinary Board discussed that Dr. Hartz repeatedly failed to respond to correspondence and orders.  CMS Ex. 11 at 10 (failing to appear at preliminary hearing that had been served via email address of record); 11 (failing to file an answer to a December 2020 order issued by the Chief Administrative Law Judge); 11 (failing to file an answer to a May 2021 order issued by the Chief Administrative Law Judge and served via email).

³ As previously discussed, Dr. Hartz reassigned benefits to SHW and the revocation of that billing number is at issue here.  See CMS Exs. 3; 15 at 4.  However, Petitioners do not specifically dispute the claims submitted by SHW. 

⁴ Petitioners have claimed that “any email that might have been sent to her was either sent to a wrong email address, or to her SPAM folder.” CMS Ex. 11 at 2, 5.

⁵ Citations to CMS Ex. 7 refer to the amended version filed on September 26, 2023. See DAB E-File docket entry Doc. No. 5.

⁶ As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS’s motion for summary judgment.

⁷ A review of CMS Ex. 6, which lists the claims billed through the practice’s NPI, indicates that the most recent claim billed through that NPI was received on May 3, 2022.  CMS Ex. 6 at 1.

⁸  While I cannot speculate what would have occurred if Petitioners had timely reported Dr. Hartz’s license suspension, there is undoubtedly a reasonable likelihood that the claims at issue would have been promptly reopened and denied.

⁹ I note that this position is consistent under more recent rulemaking. See, e.g., 86 Fed. Reg. at 65,336 (“If the provider or supplier is submitting non-compliant claims, it is the provider’s or supplier’s responsibility to remedy the matter on its own initiative; respectfully, it is not CMS’ obligation to delay a crucial program integrity measure, such as revocation, to enable the provider or supplier to execute steps that should have been taken previously.”).

¹⁰ While CMS provided ample discussion supporting its consideration of the factor at 42 C.F.R. § 424.535(a)(8)(ii) and my review is whether CMS had a legitimate basis for its action, I express my own concerns regarding the veracity of the claimed unawareness of Dr. Hartz’s license suspension. I note that the licensure hearing and notice provision at 225 Ill. Comp. Stat. 60/36(D) allows for personal service, mail delivery, or email delivery. Based on the limited evidence of record, I have not reconciled Dr. Hartz’s claim in her initial April 13, 2022 email message to DPR that “the emails have been going to [her] SPAM file” with her purported unawareness of the license suspension proceedings, to include having “no idea why [she] was suspended.” CMS Ex. 11 at 15-18. The evidentiary record does not provide a foundation for why Dr. Hartz would have known that DPR had sent her “emails” but did not know why her license was suspended; the Medical Disciplinary Board’s order is presumably the source of information that “emails” had been sent to Petitioner, and the same order provides the bases for the license suspension. See CMS Ex. 11 at 10-14, 18.

¹¹ I note that, even accepting for the sake of discussion that Dr. Hartz did not learn of her suspension until April 13, 2022, she does not claim that she notified CMS of her license suspension when she became aware of it. See CMS Exs. 2 at 10; 3 at 10 (“Dr. Hartz failed to timely report the suspended medical license to CMS or NGS within 30 days or at all, as required by § 424.516(d)(1)(ii).”).