Douglas Moss, M.D., DAB CR5033 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-16-277
Decision No. CR5033


Petitioner, Douglas Moss, M.D., is a primary care physician, practicing in Georgia, who, until recently, participated in the Medicare program.  The Centers for Medicare & Medicaid Services (CMS) has revoked his billing privileges, citing abusive billing practices; specifically, CMS charges that Petitioner Moss billed for services to Medicare beneficiaries that he could not have provided because he was out of the country on the dates he ostensibly provided them.  

Petitioner appeals. 

The evidence establishes that Petitioner Moss repeatedly billed the Medicare program for services he could not have provided and, in fact, did not provide.  CMS therefore properly revoked his billing privileges.

Page 2


In letters dated March 17, 2015, and September 2, 2015, the Medicare contractor, Cahaba Government Benefit Administrator, LLC, advised Petitioner Moss that his Medicare billing privileges were revoked, effective April 17, 2015.  The contractor took this action pursuant to 42 C.F.R. § 424.535(a)(8) because it found that Dr. Moss submitted multiple claims for services that he could not have rendered; he was outside the country on the purported dates of service.  CMS Exhibits (Exs.) 4, 7.

Petitioner requested reconsideration.  CMS Ex. 6.  In a reconsidered determination, dated December 2, 2015, CMS upheld the revocation.  CMS Ex. 1.

Petitioner appealed, and his appeal is now before me.  CMS has moved for summary judgment.  With its memorandum in support of summary judgment (CMS Br.), it submits eight exhibits (CMS Exs. 1-8).  Petitioner filed a pre-hearing brief and response to CMS’s motion (P. Br.), accompanied by two exhibits (P. Exs. 1-2).  Thereafter, Petitioner moved to supplement his briefing and submitted a supplemental brief (P. Supp).  CMS objected and filed its own brief in reply (CMS Reply). 

In the absence of any objections, I admit into evidence CMS Exs. 1-8 and P. Exs. 1-2.  See Acknowledgment and Prehearing Order at 5 (¶ 7) (February 4, 2016).

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed each party to submit the written direct testimony of any proposed witnesses and to state affirmatively that it wished to cross‑examine an opposing witness.  Acknowledgment at 5 (¶¶ 8, 9).  CMS lists no witnesses and provides no written testimony.  Petitioner submits his own written declaration, but CMS has not asked to cross-examine him.  An in-person hearing would therefore serve no purpose.  See Acknowledgment at 5 (¶ 10).


Because Petitioner Moss was out of the country and could not have provided the services for which he billed the Medicare program, CMS properly revoked his Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(8).1

Program rules.  CMS regulates the Medicare enrollment of providers and suppliers.  Social Security Act (Act) § 1866(j)(1)(A).  It may revoke a supplier’s billing privileges if

Page 3

he abuses them by submitting a claim or claims for services that he could not have furnished to a specific individual on the date of service, such as “where the directing physician . . . is not in the state or country when services were furnished.”  42 C.F.R. § 424.535(a)(8).2

The plain language of the regulation authorizes CMS to revoke billing privileges based on a single claim.  42 C.F.R. § 424.535(a)(8) (authorizing revocation if the supplier submits “a claim or claims for services that have not been furnished. . .”).  CMS has decided not to enforce the rule so strictly, however; it will not revoke unless the supplier has submitted at least three bogus claims.  73 Fed. Reg. 36,448, 36,455 (June 27, 2008).

To determine whether CMS properly revoked a supplier’s Medicare participation under section 424.535(a)(8), I consider:  1) whether Petitioner was out of the country on the dates alleged; and 2) whether he billed Medicare for services he claimed to have provided to specific individuals on those dates.  If both occurred, I must affirm CMS’s determination.  Zille Shah, M.D. and Zille Huma Zaim, M.D., PA, DAB No. 2688 at 5 (2016); Mohammad Nawaz, M.D., and Mohammad Zaim, M.D., PA, DAB No. 2687 at 5 (2016).

Petitioner’s erroneous claims.  Petitioner Moss is a physician practicing in South Georgia.  The parties agree that, from March 2011 through April 2012, he billed the Medicare program for services that he did not provide because he was out of the country on the dates of service (March 28-April 1, 2011; July 15-August 1, 2011; March 16-19, 2012; July 17-25, 2012; and April 2-6, 2013).  He submitted a total of 1,492 claims for services that he did not provide.  CMS Br. at 2; P. Br. at 2; CMS Ex. 7; P. Br. at 2, 3; P. Ex. 1 at 1-2 (Moss Decl. ¶ 4).

Nevertheless, Petitioner argues, he should not be excluded because someone, either another physician or a “mid-level,” acting under the supervision of another physician, provided the care for which he billed the Medicare program.  P. Ex. 1 at 1-2, 4 (Moss Decl. ¶¶ 2-4, 6).  Petitioner concedes that the claims submitted indicate that he provided the services, but he blames his local billing company, which was responsible for inaccurate or incomplete coding, omitting the modifiers that would have shown that someone else provided the service.  P. Br. at 4.

The Departmental Appeals Board has repeatedly observed that the Medicare rules provide no exceptions “for inadvertent or accidental billing errors.”  John M. Shimko,

Page 4

D.P.M., DAB No. 2689 at 6 (2016), quoting Louis J. Gaefke, D.P.M., DAB No. 2554 at 7 (2013).  Nothing in section 424.535(a)(8) (or its preamble) requires CMS to establish that the improper claims were not accidental.  Howard B. Reife, D.P.M., DAB No. 2527 at 6 (2013).  Physicians are responsible for Medicare claims submitted on their behalf and at their direction.  Their efforts to assign the blame elsewhere (billing agent, assistants) “do not relieve [them] of [their] responsibility for the improper claims or bar CMS from revoking [their] billing privileges.”  Id. at 8.

Petitioner concedes that he was out of the country on the dates alleged, and that he billed the Medicare program for services he claimed to have provided to specific individuals on those dates.  Thus, the criteria for revoking his Medicare enrollment are satisfied. 

Petitioner’s supplemental argument.  Over CMS’s vehement objections (which I see no need to address), Petitioner submits a supplemental brief.  In that brief, he points to a sentence in the preamble to the regulations and argues that the Medicare contractor exceeded its authority when it revoked his enrollment.  The sentence begins a response to comments that CMS did not provide its contractors sufficient guidance on how to apply section 424.535(a)(8), “which could cause overburdened contractors to implement this policy too widely.”  The drafters of the regulation replied that “CMS, not a Medicare contractor, will make the determination for revocation” under the subsection.  P. Supp. at 3-4, citing 73 Fed. Reg. at 36,455. 

Petitioner, however, omits the rest of the drafters’ response: 

We will direct contractors to use this basis of revocation after identifying providers or suppliers that have these billing issues.


In making a revocation determination under § 424.535(a)(8), we will make the revocation determination based upon information presented by a Medicare contractor, a CMS Regional Office, or one of our Program Integrity field offices.

73 Fed. Reg. at 36,455.  Responding to an additional comment, the drafters repeated that CMS would instruct its contractors to revoke, under section 424.535(a)(8), the enrollment of suppliers who submitted claims for services they could not have delivered.  Id.

Page 5

Citing this language, the Board has rejected Petitioner’s argument, pointing out that the complete discussion establishes that CMS planned to consult and direct its contractors, but the contractor would issue the revocations, applying CMS’s criteria.  Shimko, DAB No. 2689 at 11.


The evidence establishes that Petitioner Douglas Moss, M.D., submitted multiple claims to the Medicare program, representing that he provided the services for which he billed.  He concedes that he was out of the country and did not provide those services.  CMS therefore properly revoked his Medicare enrollment.

  • 1. I make this one finding of fact/conclusion of law.
  • 2. The regulation was amended effective February 2015 and is currently found at 42 C.F.R. § 424.535(a)(8)(i)(B). See 79 Fed. Reg. 72,500, 72,532 (December 5, 2014). Here, all of the purported dates of service occurred prior to that effective date, so the old citation applies. In any event, the amendments did not change the substantive provisions that underlie this case.