Fiaz Afzal, M.D., DAB CR6213 (2023)

DECISION

Acting through its administrative contractors, Respondent, the Centers for Medicare & Medicaid Services (CMS), denied Petitioner Fiaz Afzal’s enrollment applications pursuant to 42 C.F.R. § 424.530(a)(2).  Petitioner challenges these denials before me.  For the reasons discussed below, I affirm CMS’s denial of Petitioner’s applications to enroll as a supplier to the Medicare program.

I.   Background

On April 26, 2012, a grand jury in East Baton Rouge, Louisiana charged Petitioner with 35 counts of Medicaid fraud in violation of Louisiana state law.  CMS Ex. 5 at 18-19.  On October 24, 2013, Petitioner pleaded guilty to the charges against him.  Id. at 23-24.  The state court subsequently sentenced him for 18 of these counts to supervised probation and ordered Petitioner to pay $96,000 in restitution.  Id. at 24-25.

On September 18, 2014, the Inspector General for the U.S. Department of Health & Human Services (IG) excluded Petitioner from participation in all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (42 U.S.C. § 1320a‑7(a)(1).  CMS Ex. 6.

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On December 23, 2021, Petitioner submitted an individual enrollment application to CMS administrative contractor Novitas Solutions (Novitas) to enroll as a supplier in New Jersey.  CMS Ex. 2 at 8.  On March 17, 2022, he submitted another application to CMS administrative contractor First Coast Service Options (First Coast) to enroll as a supplier in Florida.  CMS Ex. 1 at 7.  On January 10, 2022, Novitas denied Petitioner’s New Jersey supplier enrollment application pursuant to 42 C.F.R. § 424.530(a)(2), citing his exclusion by the IG on September 18, 2014.  CMS Ex. 4 at 1.  First Coast denied Petitioner’s application for Florida enrollment on April 14, 2022 for the same reason.  CMS Ex. 3 at 1. 

Petitioner sought reconsideration of both denials.  CMS Ex. 1 at 38; CMS Ex. 2 at 38.  On June 27, 2022, CMS Hearing Officer Minisha Hicks issued reconsidered determinations for each enrollment application affirming the denials.  CMS Ex. 1 at 1-5; CMS Ex. 2 at 1-5.  Hearing Officer Hicks explained that despite Petitioner’s lack of disciplinary history before state medical boards or his pending reinstatement application before the IG, CMS’s contractors had properly denied Petitioner’s enrollment applications because he was excluded by the IG on the dates he submitted both applications.  CMS Ex. 1 at 2; CMS Ex. 2 at 2-3.

Petitioner timely sought a hearing before an administrative law judge (ALJ) and I was designated to hear and decide this case.  On July 18, 2022, I issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing Order) setting forth a schedule for the submission of arguments and evidence by the parties.  CMS submitted its pre-hearing exchange and a motion to dismiss or, in the alternative, for summary judgment (CMS Br.) with six proposed exhibits (CMS Exs. 1-6).  On October 13, 2022, I issued an order denying CMS’s motion to dismiss, closing the record, and accepting the narrative contained in Petitioner’s hearing request as his pre-hearing exchange.  That same day, Petitioner filed three proposed exhibits (P. Exs. 1-3). 

II.    Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  Accordingly, I admit both parties’ exhibits into the record. 

Similarly, neither party identified witnesses to testify in this matter.  I issue this decision based on the written record.  Civ. R. Div. P. § 19(d).  CMS’s motion for summary judgment is denied as moot. 

III.  Issues

Whether CMS has a legitimate basis to deny Petitioner’s enrollment applications seeking Medicare billing privileges pursuant to 42 C.F.R. § 424.530(a)(2).

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IV.   Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2). 

V.    Findings of Fact, Conclusions of Law, and Analysis¹

A.  Applicable Law

A physician like Petitioner is a supplier of health care services for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.20(b)(1).  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.  CMS may deny a supplier’s enrollment application for Medicare billing privileges for any reason stated in 42 C.F.R. § 424.530.  This includes exclusion by the IG: 

(a)  Reasons for denial.  CMS may deny a . . . supplier’s enrollment in the Medicare program for the following reasons: 

* * * *

(2)  Provider or supplier conduct.  A provider, supplier, an owner, managing employee, an authorized or delegated official, medical director, supervising physician, or other health care personnel furnishing Medicare reimbursable services who is required to be reported on the enrollment application, in accordance with section 1862(e)(1) of the Act, is—

(i)  Excluded from the Medicare, Medicaid and any other Federal health care programs, as defined in § 1001.2 of this chapter, in accordance with section 1128, 1128A, 1156, 1842, 1862, 1867 or 1892 of the Act. 

42 C.F.R. § 424.530(a)(2). 

The criteria for mandatory exclusion from all federal health care programs relevant here is set forth in section 1128(a)(1) of the Act, which states: 

(a)  Mandatory Exclusion.  The Secretary shall exclude the following individuals and entities from participation in

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any Federal health care program (as defined in section 1128B(f)): 

(1)  Conviction of program-related crimes.  Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII or under any State health care program. 

42 U.S.C. § 1320a-7(a)(1). 

B.  Analysis

1. Petitioner was excluded by the IG from participation in federal health care programs on the dates he applied to enroll as a supplier. 

42 C.F.R. § 424.530(a)(2)(i) permits CMS to deny an individual supplier’s enrollment application where that individual has been excluded by the IG from participation in federal health care programs.  Here, there is no dispute the IG excluded Petitioner based on a conviction for a program-related offense on September 18, 2014.  CMS Ex. 6.²  Nor is there any dispute that Petitioner submitted enrollment applications while he was excluded by the IG.  CMS Ex. 1 at 7; CMS Ex. 2 at 8.  

I have considered the voluminous and wide-ranging arguments made in Petitioner’s 54‑page hearing request.  His arguments have no bearing on the issue before me and generally seek relief I do not have the authority to provide.  In any event, he does not dispute the fact of his exclusion on the dates he applied for enrollment.  As such, I find CMS had a factual basis to deny Petitioner’s individual enrollment applications.

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VI.   Conclusion

For the foregoing reasons, I affirm CMS’s determination denying Petitioner’s Medicare enrollment applications pursuant to 42 C.F.R. § 424.530(a)(2).

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Endnotes:

¹   My findings of fact and conclusions of law are set forth in italics and bold font.

²  CMS failed to simply provide the actual notice of exclusion to Petitioner from the IG, the best evidence of his exclusion.  The agency instead opted to cite the ALJ decision affirming the IG’s exclusion action against Petitioner.  CMS Br. at 2.  CMS also provided the results of a search of the IG’s publicly available exclusion database conducted August 19, 2022 that confirmed Petitioner’s exclusion on September 18, 2014.  CMS Ex. 6.  I take judicial notice of this document as it is publicly available information disseminated by the IG whose accuracy cannot reasonably be questioned.  F.R.E. 201(b).  A January 3, 2023 search of the IG’s exclusion database at https://exclusions.oig.hhs.gov/Verify.aspx reveals Petitioner remains excluded by the IG.