Raman Popli, M.D., DAB CR5147 (2018)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) sustaining the determination of a Medicare contractor, as affirmed upon reconsideration, to revoke the participation in Medicare and Medicare billing privileges of Petitioner, Raman Popli, M.D., and to impose a two-year bar on re-enrollment in the program.

I. Background

CMS moved for summary judgment, filing a brief and six exhibits, identified as CMS Ex. 1-CMS Ex.6, in support of its motion.  Petitioner responded to the motion with a brief and nine supporting exhibits, which he identified as P. Ex. A-P. Ex. I.

It is unnecessary that I rule on the admissibility of the parties’ exhibits.  I receive neither party’s exhibits into the record inasmuch as I grant summary judgment based on undisputed material facts.  I cite to some of the exhibits but only to illustrate facts that are not in dispute.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a Medicare contractor lawfully determined to revoke Petitioner’s Medicare participation and to impose a re-enrollment bar.

B. Findings of Fact and Conclusions of Law

These facts are undisputed. Petitioner is a physician who has participated in Medicare. On March 13, 2017, the Illinois Department of Financial and Professional Regulation suspended Petitioner’s licenses to practice medicine and to prescribe controlled substances in that State based on findings that he had inappropriately prescribed controlled substances. CMS Ex. 1 at 2; CMS Ex. 2. On August 4, 2017, the U.S. Drug Enforcement Administration revoked Petitioner’s certificate of registration (effectively, a federal permit to prescribe controlled substances), premised on the State-level suspension of Petitioner’s controlled substance license. CMS Ex. 1 at 3-4.

Petitioner did not report any of these adverse actions to CMS. On September 12, 2017, a Medicare contractor revoked Petitioner’s Medicare enrollment and billing privileges based on the adverse actions taken against him by State and federal authorities and also based on his failure to report those adverse actions. CMS Ex. 3 at 1. The contractor imposed a two-year bar on re-enrollment. Id. at 3.

The adverse actions coupled with Petitioner’s failure to report them establish multiple grounds justifying the contractor’s determination. CMS or one of its delegated contractors may revoke a supplier’s enrollment and billing privileges if that supplier fails to comply with any requirements stated at 42 C.F.R. § 424.535(a)(1). Grounds include failure to comply with applicable federal and state licensure requirements; suspension or revocation of state or federal authorization to prescribe controlled substances; and failure to report to CMS or one of its contractors any adverse legal action within 30 days of its occurrence. 42 C.F.R. §§ 424.535(a)(1) (incorporating 42 C.F.R. § 424.516(a)(2)); 424.535(a)(13); and 424.535(a)(9). 

A bar on re-enrollment is authorized by 42 C.F.R. § 424.535(c). That bar may be between one and three years in duration.  42 C.F.R. § 424.535(c)(1). I may not hear a challenge to the length of a bar on re-enrollment because it is not an initial determination that I have authority to address. 42 C.F.R. §§ 498.3; 498.5.

In this case Petitioner’s State licenses were suspended temporarily and eventually reinstated. That does not vitiate CMS’s and its contractor’s authority to revoke or to impose a re-enrollment bar. The regulations do not distinguish between temporary and permanent loss of licensure. Akram A. Ismail, M.D., DAB No. 2429 at 7-8 (2011).

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Moreover, Petitioner’s duty to report pursuant to 42 C.F.R. § 424.535(a)(9) applies to all adverse legal actions, whether those actions consist of temporary suspensions or permanent revocations. Petitioner’s failure to comply with reporting requirements is, in and of itself, a ground for revocation of his Medicare participation and billing privileges.

Petitioner challenges neither the facts of this case as I have stated them nor CMS’s or its contractor’s authority to revoke or to impose a bar on re-enrollment based on those undisputed facts.  Rather, Petitioner argues that the contractor’s determination is unreasonable based on the unique facts of his case. He argues, first, that there are mitigating facts that establish that he did not prescribe controlled substances for anything other than valid medical reasons. He contends that there is no evidence that proves that he acted immorally or that he is incompetent. He asserts that any inappropriate prescriptions that he may have issued were issued as a consequence of being badgered by undercover agents.  Petitioner asserts also that he has attained the highest levels of professional competence. Petitioner acknowledges that he failed to report adverse actions to CMS but contends that this failure was a mere oversight on his part and a “technical” mistake rather than an omission motivated by bad faith.

Petitioner’s assertion that his failure to report was a mere error, technical in nature, is no defense. The reporting requirement of 42 C.F.R. § 424.535(a)(9) does not distinguish between mistakes and willful failures to report.  Petitioner, as a Medicare participant, had a duty to comply fully with all regulatory requirements. His failure to do so, whether willful or inadvertent, is grounds for the contractor’s determination.

Petitioner’s other arguments are equitable in character. He essentially challenges the fairness of the determination to revoke his participation and billing privileges and the two-year re-enrollment bar. I have no authority to hear these arguments. My authority is limited to deciding whether Petitioner complied with the letter of the applicable regulations. He clearly failed to do so. US Ultrasound, DAB No. 2302 at 8 (2010); Family Health Care Servs. of Darke Cnty., Inc., DAB No. 2269 at 18-19 (2009).