Ashok J. Bharucha, M.D., DAB CR6532 (2024)

DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke the Medicare enrollment and billing privileges of Petitioner, Ashok J. Bharucha, M.D., and to add Petitioner’s name to the CMS Preclusion List.

I. Background and Procedural History

Petitioner is a geriatric psychiatrist who has practiced in Pennsylvania, Illinois, and New Hampshire. P. Ex. A ¶ 2.

On June 9, 2023, Novitas Solutions (Novitas), a CMS contractor, revoked Petitioner’s Medicare enrollment as a supplier, effective July 9, 2023, for the following reasons:

42 CFR § 424.535(a)(12) – Other Program Termination

By letter dated July 21, 2022, you were informed that you were terminated from the Pennsylvania Medicaid program.

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Your appeal rights have been exhausted with respect to this termination.

42 CFR § 424.535(a)(9) – Failure to Report

The Commonwealth of Pennsylvania Board of Medicine suspended your medical license effective July 2, 2020 to February 10, 2021. You did not notify [CMS] of this adverse legal action within 30 calendar days as required under 42 C.F.R. § 424.516(d)(1).

CMS Ex. 3 at 1. Novitas also barred Petitioner’s reenrollment in the Medicare program for ten years. CMS Ex. 3 at 3.

Further, Novitas added Petitioner to the CMS Preclusion List. CMS Ex. 3 at 1. Being added to the CMS Preclusion list means that “any claims for health care items or services furnished under a Medicare Advantage (MA) benefit submitted by [Petitioner], or on [Petitioner’s] behalf by an entity [Petitioner is] employed by, shall be denied. Additionally, any pharmacy claims submitted for Medicare Part D drugs that [Petitioner] prescribe[s] shall be rejected or denied subject to the exception at 42 C.F.R. § 423.120(c)(6)(iv).” CMS Ex. 3 at 2.

Petitioner requested reconsideration of the revocation and the inclusion of Petitioner’s name on the CMS Preclusion List. CMS Ex. 1. In a reconsidered determination, a CMS hearing officer upheld the revocation, the reenrollment bar, and the inclusion of Petitioner on the CMS Preclusion List. CMS Ex. 15 at 10.

On March 18, 2024, Petitioner requested a hearing before an administrative law judge (ALJ). On March 20, 2024, the Civil Remedies Division acknowledged receipt of the hearing request and issued my Standing Order. Consistent with the Standing Order, CMS filed a prehearing brief/summary judgment motion (CMS Br.) and 15 proposed exhibits, and Petitioner filed a prehearing brief/opposition to summary judgment (P. Br.) and three proposed exhibits (P. Exs. A-C). Petitioner Exhibits A and C were witness declarations. CMS neither filed a reply brief nor requested to cross-examine Petitioner’s witnesses.

II. Admission of Evidence

Neither party objected to any of the proposed exhibits. Standing Order ¶ 10. Therefore, I admit CMS Exhibits 1 through 15 and Petitioner Exhibits A through C into the record.

I note that there is good cause to admit Petitioner Exhibit B into the record because Petitioner Exhibit B did not exist when Petitioner filed the reconsideration request. See 42 C.F.R. § 498.56(e).

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III. Decision on the Written Record

I issue this decision based on the written record. An in-person hearing is only necessary if a party submits written direct testimony from at least one witness and the opposing party requests to cross-examine at least one witness. Standing Order ¶¶ 11-12; Civil Remedies Division Procedures §§ 16(b), 19(b). Because CMS did not request to cross-examine either of Petitioner’s witnesses, I do not need to hold an in-person hearing and may issue a decision on the written record. Standing Order ¶¶ 13-14; Civil Remedies Division Procedures § 19(d); EI Medical, Inc., DAB No. 3117 at 14-15 (2023). Consequently, I deny CMS’s summary judgment motion as moot.

IV. Issues

1. Whether CMS had a legitimate basis to revoke Petitioner’s enrollment in the Medicare program under 42 C.F.R. §§ 424.535(a)(9) and/or 424.535(a)(12).

2. Whether CMS had a legitimate basis to include Petitioner on the CMS Preclusion List under 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).

V. Jurisdiction

I have jurisdiction to 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. §§ 424.545(a), 498.1(g).

VI. Legal Framework

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to establish regulations governing the enrollment of providers and suppliers in the Medicare program. 42 U.S.C. § 1395cc(j). Physicians are “suppliers” for Medicare program purposes. 42 U.S.C. § 1395x(d) (defining “supplier” to include physicians and other entities that are not considered to be a “provider of services”).

To receive payment for covered Medicare items or services provided to beneficiaries, a supplier must enroll in the Medicare program. 42 C.F.R. § 424.505. To enroll, a supplier must complete and file an enrollment application with CMS and meet all of the requirements to be a supplier. 42 C.F.R. §§ 424.510, 424.530.

Once enrolled, CMS may revoke a supplier’s enrollment for any of the reasons stated in 42 C.F.R. § 424.535(a). When CMS revokes enrollment, it will establish a reenrollment 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 reenrollment bar, CMS may also add the supplier’s name to the CMS Preclusion List if CMS determines that the basis for

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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 dispute a revocation or being added to 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 has 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 request administrative review of an ALJ’s decision concerning revocation or being added to the CMS Preclusion List. 42 C.F.R. §§ 498.5(l)(3), (n)(3), 498.80.

VII. Findings of Fact

1. In June 2020, Petitioner was charged with Indecent and Sexual Assault. CMS Ex. 6 at 11-12; see also CMS Ex. 9 at 1 (listing the offense date).

2. An Affidavit of Probable Cause (Affidavit) details the factual allegations supporting the criminal charge against Petitioner. CMS Ex. 6 at 14. The Affidavit indicated that Petitioner engaged in unwanted sexual contact with a patient during a psychiatric appointment. CMS Ex. 6 at 14. Specifically, the Affidavit stated that Petitioner touched the patient’s genitalia, put his mouth on the patient’s genitalia, and put the patient’s hand on his own genitalia, all without the patient’s consent. CMS Ex. 6 at 14. Following the appointment, Petitioner called the patient repeatedly and invited him back to Petitioner’s hotel room. CMS Ex. 6 at 14.

3. On June 29, 2020, a prosecuting attorney with the Pennsylvania Department of State filed a Petition for Immediate Temporary Suspension with the Pennsylvania Board of Medicine (Board of Medicine) based on the criminal charges. CMS Ex. 6 at 7-10.

4. On July 2, 2020, the Board of Medicine temporarily suspended Petitioner’s medical license based on the criminal charges, finding that Petitioner was an immediate and clear danger to the public health and safety. CMS Ex. 6 at 1-6; see also CMS Ex. 7 at 2.

5. On September 3, 2020, the Pennsylvania Department of Human Services notified Petitioner that it had terminated Petitioner’s provider agreement with the Pennsylvania Medical Assistance Program (i.e., the Pennsylvania Medicaid program) and that Petitioner was precluded from participating in that program. This action was based on the temporary suspension of Petitioner’s medical license

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in Pennsylvania and was effective July 2, 2020. CMS Ex. 8 at 1; see also CMS Ex. 14 at 2.

On February 11, 2021, the Board of Medicine reinstated Petitioner’s medical license to active status. CMS Ex. 4; see also CMS Ex. 7 at 2.

On September 20, 2021, Petitioner pleaded guilty to misdemeanor Simple Assault under 18 Pa. C.S.A. § 2701(a)(1) and was sentenced to two years of probation. CMS Ex. 10; see also CMS Ex. 15 at 3.

On July 21, 2022, the Pennsylvania Department of Human Services notified Petitioner that he was precluded from participating in the Pennsylvania Medicaid program for five years from September 20, 2021, through September 20, 2026, because of his criminal conviction for misdemeanor Simple Assault and because the offense involved the practice of his profession. CMS Ex. 5 at 1; see also CMS Ex. 14 at 2 (preclusion dates listed as September 27, 2021 through September 27, 2026).

VIII. Conclusions of Law

1. The Pennsylvania Medicaid program terminated Petitioner’s participation in their program, effective July 2, 2020. There is no evidence that an appeal of the termination is pending. Therefore, CMS legitimately revoked Petitioner’s Medicare enrollment under 42 C.F.R. § 424.535(a)(12).

2. As a physician, Petitioner was obligated to report “[a]ny adverse legal action” to Novitas, the relevant servicing CMS contractor, within 30 days under 42 C.F.R. § 424.516(d)(1)(ii). A “final adverse action” includes a “[s]uspension . . . of a license to provide health care by any [s]tate licensing authority.” 42 C.F.R. § 424.502 (definition of final adverse action paragraph (2)); see alsoThomas Falls, M.D., DAB No. 3056 at 9-10 (2022) (explaining that “any adverse legal action” includes “all license suspensions”) (citing Akram A. Ismail, M.D., DAB No. 2429 at 10-11 (2011)). Petitioner did not timely report the temporary suspension of his Pennsylvania medical license to Novitas within 30 days. Therefore, CMS legitimately revoked Petitioner’s Medicare enrollment under 42 C.F.R. § 424.535(a)(9).

3. Petitioner’s Medicare enrollment is currently revoked, Petitioner is under a reenrollment bar, and CMS reasonably determined that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program. Therefore, CMS legitimately added Petitioner’s name to the CMS Preclusion List under 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).

IX. Discussion

A. CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R § 424.535(a)(12) because Petitioner was terminated from participating in Pennsylvania’s Medicaid program and Petitioner has no appeal of that termination pending.

CMS may revoke a supplier’s Medicare enrollment when the following circumstances are met:

(i) The provider or supplier is terminated, revoked or otherwise barred from participation in a State Medicaid program. . . .

(ii) Medicare may not revoke unless and until a provider or supplier has exhausted all applicable appeal rights or the timeframe for filing an appeal has expired without the provider or supplier filing an appeal.

42 C.F.R. § 424.535(a)(12)(i)-(ii).

Petitioner disputes neither that the Pennsylvania Department of Human Services terminated and precluded Petitioner from participating in the Pennsylvania Medicaid program nor that Petitioner has no appeal of that termination/preclusion pending or an unexpired right to file an appeal. Therefore, CMS legitimately revoked Petitioner’s Medicare enrollment under 42 C.F.R. § 424.535(a)(12).

Petitioner objects, however, to such a straightforward analysis and argues that CMS may not simply determine that the two required elements in 42 C.F.R. § 424.535(a)(12) are met and impose a revocation. Rather, Petitioner argues that a proper analysis must include consideration of all the reasons for the termination and any other information that CMS deems relevant. Petitioner asserts that CMS improperly considered only the facts stated in the probable cause Affidavit rather than all the circumstances involved in Petitioner’s criminal matter. P. Br. at 7-8.

In a related argument, Petitioner states:

There are several issues with CMS’s reliance on a probable cause affidavit but perhaps the most glaring is that probable cause is the lowest legal standard applicable to a criminal action and, importantly, that an affidavit of probable cause serves as proof of nothing. CMS almost wholly ignores the Provider’s assertions that his basic due process rights were violated during the criminal investigation and prosecution

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process, namely the ineffective assistance of counsel in the Provider’s criminal case and the exculpatory evidence ignored as the prosecution pushed forward in its pursuit of conviction.

Br. at 5 (emphasis omitted).

Petitioner’s argument misunderstands the scope of review in this case. ALJ review of CMS’s determination to revoke enrollment is limited to considering whether CMS had a “legal basis” for its decision. Douglas Bradley, M.D., DAB No. 2663 at 13 (2015) (citing Bussell, DAB No. 2196 at 10). Therefore, “if CMS establishes that the regulatory elements necessary for revocation are satisfied, . . . then the revocation must be sustained, and . . . the administrative law judge . . . may [not] ‘substitute its discretion for that of CMS in determining whether revocation is appropriate under all circumstances.’” Bradley, DAB No. 2663 at 13 (citing Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2008), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010)).

The flaw in Petitioner’s argument is that Petitioner seeks reversal of the revocation under 42 C.F.R. § 424.535(a)(12) because Petitioner is dissatisfied with CMS’s discretionary decision to revoke Petitioner rather than showing that CMS did not have a legal basis to revoke Petitioner. As indicated above, a revocation under 42 C.F.R. § 424.535(a)(12) only requires the following two elements to be proven: 1) a state Medicaid program terminated Petitioner’s participation; and 2) Petitioner has either exhausted all appeal rights concerning the termination or the timeframe for filing an appeal of the termination has lapsed without Petitioner filing an appeal. Duke Ahn, M.D., DAB No. 3093 at 8 (2023). As stated earlier, Petitioner did not dispute that both elements have been met in this case.

Rather, Petitioner asserts that CMS failed to consider the reasons for the termination and other relevant information. However, these are the factors that CMS must consider when determining whether to revoke as opposed to whether there is a legal basis to revoke. The regulation states:

In determining whether a revocation under this paragraph (a)(12) is appropriate, CMS considers the following factors:

(A) The reason(s) for the termination or revocation.

(B) Whether the provider or supplier is currently terminated, revoked or otherwise barred from more than one program (for example, more than one State’s Medicaid program) or has been subject to any other sanctions during its participation in other programs.

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(C) Any other information that CMS deems relevant to its determination.

42 C.F.R. § 424.535(a)(12)(i). As explained above, I cannot review CMS’s discretionary decision to revoke. I can only review this matter to determine whether CMS exercised its discretion when it revoked Petitioner. Brian K. Ellefsen, D.O., DAB No. 2626 at 8-10 (2015).

While the initial determination to revoke in this case provided limited analysis, the reconsidered determination provided a detailed explanation as to why CMS decided to impose revocation. I reviewed the reasons stated in the reconsidered determination because it is CMS’s final determination before ALJ review. Brian O’Conner, DAB No 3140 at 16-17 (2024).

CMS outlined its findings for factors (A)-(C) of 42 C.F.R. § 424.535(a)(12)(i) in the reconsidered determination. See CMS Ex. 15 at 5.

• For factor (A), the CMS hearing officer stated that Petitioner was terminated from the Pennsylvania Medicaid program due to his misdemeanor conviction for Simple Assault. CMS Ex. 15 at 5.
• For factor (B), the CMS hearing officer stated that CMS was unaware of any adverse actions by state Medicaid programs besides the one in Pennsylvania but that Petitioner’s Medicare enrollments in Illinois and New Hampshire were revoked due to an expired medical license in Illinois and a suspended medical license in New Hampshire. CMS Ex. 15 at 5. The CMS hearing officer also considered Petitioner’s termination/preclusion from participation in Pennsylvania’s Medicaid program, noting that Petitioner was initially terminated/precluded from participating in the program due to the suspension of Petitioner’s medical license in Pennsylvania but was placed back on the Pennsylvania Medicaid Preclusion List due to Petitioner’s misdemeanor conviction. CMS Ex. 15 at 5.
• For factor (C), CMS found it relevant that Petitioner was terminated from the Pennsylvania Medicaid program and had his medical license suspended due to the underlying conduct outlined in the Affidavit, which led to his misdemeanor conviction. CMS Ex. 15 at 5. The CMS hearing officer also stated that, like the Board of Medicine and the Pennsylvania Department of Health, CMS took into consideration that Petitioner’s underlying conduct involved nonconsensual sexual contact, with a patient, during an appointment. CMS Ex. 15 at 5; CMS Ex. 6 at 9 (Board of Medicine finding that Petitioner posed an immediate and clear danger to the public health and safety), 14 (Affidavit describing the conduct); CMS Ex. 5 at

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• 1 (terminating Petitioner’s provider agreement and precluding his participation in the Pennsylvania Medicaid program because his conviction involved the practice of his profession).

Therefore, I conclude that CMS fully considered the regulatory factors as to whether CMS ought to impose revocation.

Although Petitioner takes issue with CMS’s reliance on the Affidavit that supported the criminal charges against Petitioner, documents related to a criminal prosecution may be considered when determining whether a sanction like revocation should be imposed. SeeChaim Charles Steg, DAB No. 3115 at 7-8 (2023) (explaining that documents such as an affidavit from a law enforcement officer, an arrest warrant, an indictment, and guilty plea colloquies may be considered to determine whether a criminal offense meets the elements for an exclusion from participation in federal health care programs).

In addition, while Petitioner is critical of CMS’s consideration of Petitioner’s criminal conviction, Petitioner filed only one substantive exhibit with his reconsideration request (i.e., a one-page Final Order of the Board of Medicine reinstating Petitioner to active medical practice because 180 days had elapsed since the imposition of a temporary immediate suspension), which had nothing to do with Petitioner’s criminal case. CMS Ex. 1 at 2 (referring to Exhibit B attached to the reconsideration request); CMS Ex. 4; CMS Ex. 15 at 2 (marking Exhibit B as Exhibit 4 for the reconsideration record), 3 (citing Exhibit 4 in the “Background” section of the reconsidered determination). The original notice of revocation clearly stated that Petitioner needed to submit all evidence with the reconsideration request. CMS Ex. 3 at 3; 42 C.F.R. §§ 405.803(e) (requiring providers and suppliers to submit all evidence at the reconsideration stage of appeal), 498.56(e) (only permitting an ALJ to allow documentary evidence to be submitted by a provider or supplier during the hearing stage of the appeal process when good cause is shown). Petitioner cannot fault CMS for failing to consider evidence that was not submitted.

Therefore, based on the foregoing, I conclude that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment based on 42 C.F.R. § 424.535(a)(12).

B. CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R § 424.535(a)(9) because Petitioner failed to report, within 30 days, an adverse legal action to the relevant Medicare contractor.

CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9) because Petitioner failed to report an adverse legal action against him to Novitas within 30 days.

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CMS may revoke a supplier’s Medicare enrollment under 42 C.F.R. § 424.535(a)(9) when a supplier does not comply with the reporting requirements laid out in 42 C.F.R. § 424.516(d). That regulation requires a physician to meet the following reporting requirement:

Physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations must report the following reportable events to their Medicare contractor within the specified timeframes:

(1) Within 30 days—

(i) A change of ownership;

(ii) Any adverse legal action; or

(iii) A change, addition, or deletion of a practice location.

(2) All other changes in enrollment must be reported within 90 days.

42 C.F.R. § 424.516(d) (emphasis added).

There is no doubt that Petitioner failed to timely report the suspension of his medical license within the required 30-day timeframe. In Petitioner’s Request for Reconsideration, Petitioner did not dispute that he failed to report the suspension. CMS Ex. 1 at 2-3. Petitioner stated that he did not report the suspension because the suspension was temporary and because he was contesting the criminal charges that were the underlying basis for the suspension. CMS Ex. 1 at 2. It is this explanation that the CMS hearing officer rejected as an insufficient basis for Petitioner to avoid revocation under section 424.535(a)(9). CMS Ex. 15 at 6-7. I reject it as well.

However, in the hearing request, Petitioner’s brief, and Petitioner’s written direct testimony submitted in this proceeding, Petitioner radically altered the reason for his failure to timely report the Pennsylvania license suspension. Petitioner now asserts that he was in a coma for five days, was briefly incarcerated, and suffered from memory loss for a year after the coma. Hearing Req. at 3; P. Br. at 6, 8-9; P. Ex. A ¶¶ 10-13. In addition, Petitioner attacks the underlying criminal charges/conviction and indicates he is trying to have the criminal matter set aside. P. Br. at 5; P. Ex. A ¶¶ 5-9; P. Ex. B.

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CMS argues that even a temporary suspension is an adverse action that requires reporting and that, in any event, Petitioner never reported the suspension even after the alleged coma, incarceration, and memory loss ended. CMS Br. at 7-8.

I agree with CMS. A “final adverse action” includes a “[s]uspension . . . of a license to provide health care by any [s]tate licensing authority.” 42 C.F.R. § 424.502. The term “final adverse action” is encompassed by the definition of “any adverse legal action.” See Falls, DAB No. 3056 at 9-10 (explaining that “any adverse legal action” includes “all license suspensions”) (citing Ismail, DAB No. 2429 at 10-11 ). Further, “[a] suspension is considered ‘final’ when imposed, despite any pending appeals.” Angela R. Styles, M.D., DAB No. 2882 at 9 (2018) (citing Ismail, DAB No. 2429 at 10-11). To that end, whether a suspension is temporary or permanent is inconsequential since both temporary and permanent suspensions are adverse legal actions. See Ismail, DAB No. 2429 at 8 (the “inability to practice medicine for any length of time due to the disciplinary actions imposed . . . triggered his noncompliance with the Medicare enrollment requirements and authorized [the] revocation of his billing privileges.”). Therefore, the Board of Medicine’s July 2, 2020 temporary suspension of Petitioner’s Pennsylvania medical license was an adverse legal action that had to be reported within 30 days of July 2, 2020.

Petitioner’s most recent defense to his failure to report the temporary suspension is that he suffered from a medical condition, was incarcerated, and then lost his memory. However, I do not credit the claims concerning the coma and loss of memory for a year because the record contains no documentary evidence to corroborate this. Even the written testimony of Petitioner’s psychologist, who “conducted a comprehensive psychological evaluation . . . on September 8, 2020 and September 22, 2020,” neither referenced the coma nor the memory loss. P. Ex. C. Based on the chronology in Petitioner’s testimony, the psychologist’s evaluation would have taken place two and a half months after the alleged coma and incarceration, yet there is no mention of the coma or memory loss. Compare P. Ex. A ¶¶ 10-12 (the alleged coma and the incarceration occurred in July 2020) with P. Ex. C ¶ 4 (the comprehensive psychological evaluation and sexual risk assessment occurred in September 2020).

Finally, as to Petitioner’s argument that his criminal conviction might get overturned, the validity or outcome of any of Petitioner’s current efforts to have the criminal judgment vacated is wholly irrelevant to whether Petitioner reported a suspension that went into effect in July 2020. Petitioner was obligated to report the suspension even if the basis for the suspension was invalid or later may eventually no longer be valid due to a successful appeal. Therefore, CMS correctly determined that Petitioner failed to comply with the reporting requirements specified in 42 C.F.R. § 424.516(d).

As with the analysis of 42 C.F.R. § 424.535(a)(12), I conduct a brief analysis to determine whether CMS exercised its discretion to impose the revocation based on section 424.535(a)(9).

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Once it is clear that a supplier has failed to report an adverse legal action, CMS considers the following factors to determine whether revocation is proper:

(i) Whether the data in question was reported.

(ii) If the data was reported, how belatedly.

(iii) The materiality of the data in question.

(iv) Any other information that CMS deems relevant to its determination.

42 C.F.R. § 424.535(a)(9).

Petitioner argues that CMS failed to adequately weigh factors (iii) and (iv) of 42 C.F.R. § 424.535(a)(9) before revoking his Medicare enrollment. CMS Ex. 1 at 2-3; P. Br. at 8‑9.

However, I conclude that CMS adequately considered all four factors under 42 C.F.R. § 424.535(a)(9). Because Petitioner did not report the suspension, factors (i) and (ii) are significant. Regarding factor (iii), CMS considered the lack of reporting to be material to Petitioner’s Medicare enrollment because a failure to report a suspension could result in a supplier maintaining enrollment in the Medicare program even when enrollment requirements are not met. CMS Ex. 15 at 6. Regarding factor (iv), CMS did not deem the pendency of Petitioner’s criminal charges relevant because the uncertain outcome of the criminal proceeding did not exempt Petitioner from reporting the license suspension that went into effect. CMS Ex. 15 at 7. Petitioner was obligated to report the license suspension even if the criminal matter was ultimately set aside.

Petitioner does not dispute that he failed to report the suspension to Novitas within 30 days. The reconsidered determination is sufficient to meet CMS’s obligation to consider the factors outlined in 42 C.F.R. § 424.535(a)(9) and the record supports a finding that Petitioner violated the reporting requirements in 42 C.F.R. § 424.516(d). Further, the record does not support Petitioner’s excuses for failing to report the suspension. Therefore, CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment based on 42 C.F.R. § 424.535(a)(9).

C. CMS had a legitimate basis to include Petitioner on CMS’s Preclusion List.

As discussed below, CMS had a legitimate basis to include Petitioner on the CMS Preclusion List because the necessary elements of preclusion are satisfied. The CMS Preclusion List includes individuals who:

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(1) Meet all of the following requirements:

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in § 424.535(a)(3) of this chapter.

(ii) The individual or entity is currently under a reenrollment bar under § 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 (1)(iii), CMS considers the following factors:

(A) The seriousness of the conduct underlying the individual’s or entity’s revocation;

(B) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program.

(C) Any other evidence that CMS deems relevant to its determination.

42 C.F.R. § 422.2; see 42 C.F.R. § 423.100.

The CMS contractor added Petitioner to the CMS Preclusion List under 42 C.F.R. §§ 422.2 and 422.222 for suppliers. CMS Ex. 3 at 1. This action was also taken pursuant to 42 C.F.R. §§ 423.100 and 423.120(c)(6) for individuals who are suppliers, such as physicians. CMS Ex. 3 at 1. Pursuant to 42 C.F.R. § 424.535(c), CMS also established a reenrollment bar for a ten-year period. CMS Ex. 3 at 3.

Petitioner’s arguments concerning preclusion are brief and limited. In the reconsideration request, Petitioner only cross-referenced his arguments as to why he should not be revoked, which I take to mean Petitioner thinks the revocation should be reversed and, therefore, the preclusion would need to be also. CMS Ex. 1 at 3. Petitioner’s brief is similar in that Petitioner describes CMS’s failure to properly follow “the guidance set forth in 42 C.F.R. § 424.535(a)(9) and (12)” as tainting this case. P. Br. at 9.

Petitioner’s arguments are insufficient to avoid being added to the CMS Preclusion List. Petitioner’s enrollment is currently revoked, and Petitioner is currently under a ten-year

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reenrollment bar. CMS Ex. 3 at 1-3. Because I have upheld the revocation, the reenrollment bar remains in place. As a result, the first two elements of preclusion are not in dispute, which disposes of Petitioner’s arguments.

There is one remaining element for preclusion that I discuss for completeness: whether the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program. For the reasons stated below, I conclude that CMS reasonably concluded that it is.

As quoted above, there are three factors that CMS must consider when determining if the basis for revocation is detrimental to the best interests of the Medicare program. Beginning with the first factor, (A), the CMS hearing officer, in the reconsidered determination, offered two independent bases to satisfy this factor. First, the CMS hearing officer found that the underlying conduct that led to revocation under 42 C.F.R. § 424.535(a)(9), i.e., the failure to timely report the suspension of Petitioner’s Pennsylvania medical license, amounted to a very serious matter because “CMS relies upon the most recent information reported to the Medicare program by its partners to ensure its providers and suppliers are in compliance with all applicable Medicare rules and regulations.” CMS Ex. 15 at 8. Next, the CMS hearing officer found that Petitioner’s conduct that led to his revocation under 42 C.F.R. § 424.535(a)(12), the termination from the Pennsylvania Medicaid Program due to nonconsensual sexual contact while providing psychiatric care during a patient appointment, was very serious. CMS Ex. 15 at 8.

Regarding factor (B), the CMS hearing officer found that the underlying conduct leading to revocation under both 42 C.F.R. § 424.535(a)(9) and (a)(12) could significantly affect the integrity of the Medicare program. CMS Ex. 15 at 8. With respect to 42 C.F.R. § 424.535(a)(9), the CMS hearing officer stated that outdated or inaccurate information puts the Medicare Trust Funds at risk because it prevents Medicare payments from being made correctly. See CMS Ex. 15 at 8. With respect to 42 C.F.R. § 424.535(a)(12), the CMS hearing officer found that Petitioner’s nonconsensual sexual contact with the patient puts patients’ well-being at risk and that “[a]ny conduct that may risk the health and safety of beneficiaries is plainly detrimental to the best interests of the Medicare program.” CMS Ex. 15 at 8.

Regarding factor (C), CMS considered Petitioner’s history of final adverse legal actions in New Hampshire and Illinois, and the suspension of Petitioner’s Pennsylvania medical license and his termination from the Pennsylvania Medicaid program, and found this history to be relevant for the purpose of determining whether Petitioner should be included on the CMS Preclusion List. CMS Ex. 15 at 9. CMS also determined that the inappropriate behavior with the patient which led to conviction “represents a hazard and could expose [Medicare] beneficiaries to endangerment.” CMS Ex. 15 at 9.

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Based on the reconsidered determination, I conclude that the CMS hearing officer offered a reasonable explanation for the conclusion that the bases of revocation are detrimental to the Medicare program and, therefore, Petitioner was properly added to the CMS Preclusion List.

D. I do not have the authority to review the length of the reenrollment bar.

Whenever CMS has properly imposed a revocation on a supplier, CMS must also determine how long the supplier will be barred from seeking reenrollment as a supplier. The regulations at 42 C.F.R. § 424.535(c)(1) provide that the reenrollment bar “[b]egins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 10 years . . . depending on the severity of the basis for revocation.” However, the length of the reenrollment bar is not subject to ALJ review. Vijendra Dave, M.D., DAB No. 2672 at 9 (2016). Therefore, I cannot review whether a ten-year reenrollment bar is appropriate in this case.

X. Conclusion

I affirm CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges and to include Petitioner on the CMS Preclusion List.