Steve Nozad, DAB CR6573 (2024)

DECISION

Petitioner, Steve Nozad, M.D., is a cardiologist licensed in New York, who, until September 30, 2020, practiced in New York and participated in the Medicare program.  The Centers for Medicare & Medicaid Services (CMS), acting upon reviews by its administrative contractors, National Government Services (NGS) and Safeguard Services LLC (SGS), revoked the Medicare billing privileges of Petitioner pursuant to 42 C.F.R. § 424.535(a)(8)(ii), effective October 30, 2020.  Specifically, CMS revoked Petitioner’s billing privileges and placed him under a 10-year re-enrollment bar because it determined that Petitioner had engaged in a pattern or practice of abusive billing.  Additionally, because CMS determined that Petitioner engaged in a pattern of abusive billing that is detrimental to the best interests of the Medicare program, Petitioner was placed on the CMS Preclusion List.

Petitioner appeals.  I find that CMS is authorized to revoke Petitioner’s Medicare enrollment because CMS has established that Petitioner’s billing behavior constitutes an abuse of billing privileges under 42 C.F.R. § 424.535(a)(8)(ii) and that Petitioner has a pattern or practice of submitting claims that fail to meet Medicare requirements.  I also affirm Petitioner’s placement on the preclusion list.

Page 2

I. Applicable Regulations

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to establish regulations for enrolling providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  Suppliers must enroll in the Medicare program and receive a billing number to obtain payment for services rendered to Medicare beneficiaries.  42 C.F.R. § 424.505.

The regulations delegate to CMS the authority to revoke the enrollment and billing privileges of providers and suppliers.  See 42 C.F.R. § 424.535.  CMS or a Medicare administrative contractor, acting on behalf of CMS, may revoke a provider’s or supplier’s Medicare enrollment and billing privileges for numerous reasons, including, as relevant here, abuse of billing privileges.  42 C.F.R. § 424.535(a)(8).  Abuse of privileges includes when “CMS determines that the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.”  42 C.F.R. § 424.535(a)(8)(ii).  After CMS revokes a provider’s or supplier’s enrollment and billing privileges, CMS bars the supplier from re-enrolling in the Medicare program for a minimum of one year but not greater than 10 years.  42 C.F.R. § 424.535(c)(1)(i).

When an individual is revoked from Medicare and barred from re-enrollment under 42 C.F.R. § 424.535(c), and if CMS also determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program, CMS may place that individual on its “preclusion list.”  42 C.F.R. §§ 422.2, 423.100.  If an individual is placed on the preclusion list, the individual will not be paid for Medicare items or services by Medicare Advantage plans under Medicare Part C or by Medicare D prescription drug plans. 42 C.F.R. §§ 422.222(a), 422.224(a), (b), 423.120(c)(6).

II. Procedural and Factual Background

Petitioner is a cardiologist and enrolled in the Medicare Part B program in 2003.  CMS Ex. 2.  CMS’s decision to revoke Petitioner’s enrollment was based on the findings of four individual audits.  CMS reviewed claims submitted by Petitioner from 2014 through 2019.  During the reviews, CMS denied a majority of the claims as the documentation was deemed insufficient to support the medical necessity of the services billed.  CMS Ex. 1 at 5, 8.

A. The 2014 Medical Review

On March 31, 2015, SGS requested medical records for 105 patients for claims paid from May 8, 2014 through January 2, 2015.  CMS Ex. 3 at 2.  By letter dated March 7, 2016, CMS notified Petitioner that 230 out of 241 lines of service were denied, involving 102

Page 3

out of 105 claims, revealing a 97.14% denial rate.1  Id.; CMS Ex. 12 at 2.  A total of 189 services were denied.  CMS Ex. 3 at 2.  CMS noted that the vast majority of these services were denied because the documentation from beneficiary to beneficiary was cloned.  Id.  CMS explained that cloned documentation is a concern as it indicates that a provider may not be performing an actual face-to-face visit with a patient, or if a visit is being performed, a provider is failing to include the individualized condition of the beneficiary on a particular date of service.  Id. at 2.  Other services were denied as not being medically necessary because the documentation in the medical record was illegible and therefore a determination of medical necessity could not be made or because there was no documentation for the dates of service, or the documentation did not support the level billed.  Id. at 3, 4.

The March 7, 2016 letter included an explanation of what is required for a claim to be properly re-evaluated and what is required for sufficient documentation of claimed services.  CMS Ex. 3 at 6.  Further, the letter included the websites and available information concerning guidelines for providers submitting claims for payment under the Medicare program.  Id.  Additionally, CMS warned that Petitioner is subject to re-review of future billing practices to ensure compliance with the information and recommendations of the letter.  Id. at 7.  Finally, CMS advised Petitioner that CMS has the authority to revoke a currently enrolled provider’s or supplier’s Medicare billing privileges if CMS determines that the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  CMS Ex. 3 at 8.

Although CMS advised Petitioner of his right to appeal the denials and an explanation of the process to do so, Petitioner did not appeal the overpayment determination.  CMS Ex. 11 at 2.

B. 2017 Medical Review

On November 27, 2017, CMS contractor NGS issued a Notice of Review-Targeted Probe and Education, notifying Petitioner that he had been selected for a new Targeted Probe and Educate (TPE) review process.  CMS Ex. 4 at 1.  The letter informed Petitioner that the review had been initiated to probe a sample of his claims, between 20 to 40 claims, billed with specific current procedural terminology (CPT) codes 99223 and 99233.  CMS Ex. 4 at 1.  NGS’s Manager of Clinical Operations, Mary King-Maxey, testified that from November 30, 2017, through December 6, 2017, NGS sent 40 letters to Petitioner directing him to submit supporting documentation for 40 claims with dates of service between October 21, 2017, and November 27, 2017.  CMS Ex. 11 at 3.  On April 19, 2018, CMS issued an education letter notifying Petitioner of the results of the first TPE

Page 4

prepayment review.  CMS Ex. 5 at 1.  The letter informed Petitioner that all 40 of the reviewed claims were denied with a 100% denial rate.  Id. at 1.  The letter included an attached spreadsheet detailing the reasons for each of the denied claims.  CMS Ex. 5 at 4-5.  As a result of the review, NGS encouraged Petitioner to register for one-on-one provider education to discuss claims/denials and to answer any questions Petitioner might have concerning the process.  CMS Ex. 5 at 2.

After NGS issued the April 19, 2018 education letter, Petitioner submitted documents to support eight of the 40 claims.  CMS Ex. 11 at 3-4.  NGS found that for five of these claims, the documentation supported only a reduced level of care than the service billed.  Id. at 3.  For the other three claims, NGS found that the documentation did not support the claims because the documentation provided was not for the date of service reported on the claim or the rendering provider reported on the claim was not the provider of the service on the documentation.  Id.  Petitioner did not contact NGS concerning the offered one-on-one provider education and never appealed any of the claim denials.  Id.

C. 2018 Medical Review

By letter dated February 6, 2019, NGS notified Petitioner of the results of an additional medical review and a second round of TPE review that covered dates of service between September 18, 2018, and September 29, 2018.  CMS Ex. 6 at 1.  Of the 40 claims reviewed, NGS found a claim error rate of 100% and a payment error rate of 72.40%.  Id.  As with the previous review, NGS encouraged Petitioner to register for one-on-one provider education to discuss claims/denials and to answer any questions that Petitioner might have regarding the policy or the TPE process.  Id. at 2.  Ms. King-Maxey testified that NGS has no record that Petitioner appealed the claim denials, although the letter informed Petitioner that he could appeal the individual claim decisions.  CMS Ex. 11 at 5; CMS Ex. 6 at 2.

D. NGS’s May 14, 2019 Email to Petitioner

Ms. King-Maxey testified that on May 14, 2019, NGS sent Petitioner an email seeking to schedule an educational call to discuss the results of NGS’s review.  CMS Ex. 11 at 5.  She further testified that Petitioner never responded to the email or called NGS to accept its offer for one-on-one provider education.  Id.

E. 2019 Medical Review

In June 2019, SGS informed NGS that it would conduct the next audit of Petitioner.  CMS Ex. 11 at 5.  By letter dated March 3, 2020, SGS notified Petitioner of a review of Petitioner’s claims with dates of service between October 31 and November 26, 2019.  CMS Ex. 12 at 3-4; CMS Ex. 8 at 2.  SGS confirmed that of the 361 prepayment claims that were reviewed, 343 (or 95%) of the claims were denied or reduced.  CMS Ex. 8 at 2.

Page 5

The letter stated that the services were denied “because the documentation submitted were cloned from one visit to the next, the documentation [was] insufficient to support a critical care service rendered to a critically ill patient, and the documentation for dates of service [were] prior to the admission date to the hospital.”  CMS Ex. 8 at 2.  The specific denied claims were identified with a discussion of why they were denied.  Id.

Petitioner appealed three of the 307 denied claims, however, all three of those denials were upheld.  CMS Ex. 12 at 4-5.  Following the March 3, 2020 letter, Petitioner sent additional documentation for another 377 claims with dates of service between May 18, 2019, and November 26, 2019.  CMS Ex. 12 at 5.  SGS reviewed the additional documentation and denied 269 of the claims.  Id.

F. CMS’s Determination of a Violation

On September 30, 2020, NGS issued an initial determination letter informing Petitioner that pursuant to 42 C.F.R. § 424.535(a)(8)(ii), his Medicare billing privileges were revoked effective October 30, 2020, that he was placed on the CMS Preclusion List, and that CMS imposed a 10-year re-enrollment bar.  CMS Ex. 9 at 1, 2, 4.  The determination letter discussed all four of the audits and the repeated education opportunities that were offered to Petitioner.  The letter stated that the determination that Petitioner’s billing behavior constitutes a violation was based on the continued high percentage of submitted claims that were denied, the reasons for the claim denials, and the length of time over which the pattern has continued.  Id. at 1-2.  The letter informed Petitioner of his right to submit a reconsideration request.  Id. at 3.

Petitioner timely submitted a reconsideration request.  CMS Ex. 2.  On March 11, 2021, CMS issued a reconsidered determination upholding Petitioner’s revocation, 10-year re‑enrollment bar, and inclusion on CMS’s preclusion list.  CMS Ex. 1.  The reconsidered determination notified Petitioner of his right to request administrative law judge (ALJ) review of the reconsidered determination.  Id. at 11.

On May 7, 2021, Petitioner timely requested a hearing before an ALJ.  On May 12, 2021, ALJ Bill Thomas was designated to hear and decide this case.  At ALJ Thomas’s direction, the Civil Remedies Division issued an Acknowledgment Letter and ALJ Thomas’s Standing Order on May 12, 2021.  Among other things, the Standing Order instructed the parties to file prehearing exchanges.

On July 16, 2021, CMS filed a motion for summary judgment and brief (CMS Br.) with 13 exhibits (CMS Exs. 1-13).  On August 23, 2021, Petitioner filed his own brief in opposition of CMS’s motion for summary judgment (P. Br.) with four exhibits (P. Exs. 1-4).  On September 17, 2024, this case was transferred to me for adjudication.

Page 6

III. Exhibits and Decision on the Record

Because Petitioner did not object to CMS’s exhibits, I admit into evidence CMS Exhibits 1-13.  Because CMS did not object to Petitioner’s exhibits and 42 C.F.R. § 498.56(e) does not preclude me from admitting the exhibits proffered by Petitioner, I admit into evidence Petitioner’s Exhibits 1-4.  See Arkady B. Stern, M.D., DAB No. 2329 at 4 n.4 (2010) (“Testimonial evidence that is submitted in written form in lieu of live in-person testimony is not ‘documentary evidence’ within the meaning of 42 C.F.R. § 498.56(e), which requires good cause for submitting new documentary evidence to the ALJ.”).

In his Standing Order, ALJ Thomas directed the parties to list all proposed witnesses and to submit, as a proposed exhibit, the written direct testimony of those witnesses.  Standing Order §§ 5, 11.  Further, ALJ Thomas informed the parties that “[a]n in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party requests cross-examination.”  Standing Order § 13.  CMS did not offer any witnesses, and Petitioner offered only two witnesses, himself and Carol Merola, for examination.  However, CMS did not request cross-examination of Petitioner’s proposed witnesses.  Because the opposing party, i.e., CMS, did not request cross-examination of Petitioner’s witnesses, an in-person hearing would serve no purpose, and I may decide this case based on the written record without considering whether the standards for summary judgment have been met.  See El Med., Inc., DAB No. 3117 at 15 (2023).

IV. Issues

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii); and

Whether CMS had a legitimate basis to place Petitioner on the preclusion list.

V. Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(1)(2); see also Act § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

Page 7

VI. Discussion

1. CMS had a legitimate basis to revoke Petitioner’s Medicare billing privileges.2

To maintain its billing privileges, a supplier must comply with CMS’s conditions of coverage, payment, and participation outlined in the regulations, and refrain from certain prohibited conduct.  42 C.F.R. § 424.535(a)(8)(ii) provides that a supplier’s billing privileges, as well as its enrollment agreement, may be revoked for abuse of billing privileges.  CMS determines that there is an abuse of billing privileges when the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  42 C.F.R. § 424.535(a)(8)(ii).  In making this determination, CMS considers the percentage of submitted claims that were denied and the reason(s) for the claim denials.  Id.  CMS also considers whether the provider or supplier has any history of final adverse actions, the length of time over which the pattern has continued, how long the provider or supplier has been enrolled in Medicare, and any other information regarding the provider or supplier’s circumstances that CMS deems relevant to its determination as to whether the provider or supplier has or has not engaged in the pattern or practice under review.  Id.

In reviewing the criteria for determining abusive billing, I note that for the four separate audits, the percentages of denied or reduced claims were extremely high:  97.14%, 100%, 100%, and 95%.  CMS Ex. 1 at 5, 6.  Among other things, the claims were denied as the medical records provided by Petitioner were insufficient to support the medical necessity of the services billed, the documentation submitted was cloned for one visit to the next, or because Petitioner failed to submit the requested documentation altogether.  CMS Ex. 3 at 1; see CMS Exs. 5, 6, 7, 8, 10. Despite Petitioner being targeted for review and specific education given with each denial letter, Petitioner’s claim denials remained high as he continued to submit noncompliant claims and refused to correct his previously identified billing errors.  CMS Ex. 1 at 8.  Petitioner’s error rate in billing remained at between 95% and 100% from samples over a period from 2014 through 2019.  Id.  CMS found this to be a clear demonstration of systemic, noncompliant behavior, especially because Petitioner was given multiple opportunities to correct his pattern of abusive bill through education.  Id.

Further, CMS took note of the fact that Petitioner had been enrolled in the Medicare program for almost 18 years and would have had more than enough time to familiarize himself with the relevant Medicare requirements.  Id.  CMS also found it particularly relevant that Petitioner was offered multiple opportunities to receive education regarding proper billing and submission of claims for documenting the medical necessity for

Page 8

services billed after each review round was completed.  Each of the letters regarding the medical reviews explained the basis for the denials and strongly encouraged Petitioner to schedule one-on-one telephonic education.  Id.

For the first three review rounds, Petitioner did not file an appeal.  For the last review round, Petitioner submitted appeals for three claims, and of those three, only one was found to be favorable to Petitioner.  Petitioner continued to submit claims to Medicare for payment that failed to meet Medicare requirements.  Id. at 9.

Analysis of Petitioner’s Arguments

Petitioner does not deny that from the period of 2015 to 2020, CMS sent him correspondence initiating approximately four (4) audits for claims billed by him to the Medicare program.  Additionally, Petitioner does not deny that audits were conducted, and the contractors made findings regarding each audit as CMS alleges.  P. Br. at 5.  In his brief, Petitioner reasserts his arguments raised in his request for reconsideration.  Namely, Petitioner asserts that CMS’s authority and decision to revoke his Medicare billing privileges under 42 C.F.R. § 424.535(a) is “permissive” and not mandatory.  P. Br. at 2, 5.  Petitioner also defends his actions as “inadvertence” and argues that his conduct posed no risk to the program due to Petitioner’s willingness to voluntarily withdraw from the Medicare program and fully retire from the practice of medicine.  Id.

Petitioner asserted, in his written direct testimony, that beginning in 2015, his practice was located at 2523 Kings Highway, Brooklyn, New York and that this office was adjacent to New York Community Hospital whose address is 2525 Kings Highway, Brooklyn.  P. Br. at 2.  Petitioner asserts that his office building’s mail went through the hospital to be sorted and that his office manager went to the hospital’s mail room to pick up his office mail.  He further maintains that his office experienced significant issues with the mail due to the manner by which it was sorted.  Id.  Petitioner testified that he had no recollection of receiving the notifications referenced by CMS regarding offering one-on-one education opportunities to correct what CMS identified as inappropriate billing practices that were sent via regular mail or electronic mail.  P. Ex. 3 at 1.

Petitioner’s office manager, Carol Merola, testified that she had no recollection of receiving any correspondence from CMS that offered Petitioner the opportunity to appeal any requests to return money or receive education on the “perceived inappropriate billing practices.”  P. Ex. 4 at 2.

Thus, both Petitioner and his office manager testified that they have no recollection of receiving correspondence offering Petitioner the opportunity to appeal CMS’s determinations or to receive education on billing practices.  In contrast, however, Petitioner specifically acknowledges that from the period of 2015 to 2020, CMS sent him correspondence initiating approximately four audits for claims billed by him to the

Page 9

Medicare program.  Further, Petitioner does not deny that CMS conducted audits and made findings as CMS alleges.  Petitioner filed no objections to any of the respective audit letters that CMS offered into evidence.  As discussed above, the letters offered not only the procedures for appeal, but also CMS’s encouragement for Petitioner to avail himself of available education in proper billing documentation.

The overall evidence demonstrates that, despite his claimed lack of recall, Petitioner repeatedly received notice of CMS’s denials of payment for improper billing.  Petitioner’s noncompliant billings continued over a period of approximately six years, and Petitioner has offered no evidence that he tried to correct this pattern of improper billing.  Accordingly, Petitioner’s conduct demonstrates disregard for the regulatory requirements for Medicare participation.

Petitioner is correct that CMS’s authority to revoke is discretionary.  However, the exercise of that discretionary authority is not subject to review.  Once CMS establishes a legal basis on which to proceed with a revocation, the CMS determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d., Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).

Furthermore, despite Petitioner’s assertions that CMS did not consider all the potentially mitigating factors in its decision to revoke his billing privileges, CMS’s discretionary act to revoke a provider or supplier is not subject to review based on equity or mitigating circumstances.  Letantia Bussell, M.D., DAB No. 2196 at 12-13 (2008).  I am not authorized to overturn a legally valid agency action based on equitable grounds or otherwise to grant equitable relief.  Wendell Foo, M.D., DAB No. 2904 at 25 (2018) (citing Foot Specialists of Northridge, DAB No. 2773 at 18 (2017)).

I find that CMS had a legal basis to revoke Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(8)(ii), as Petitioner continued to submit hundreds of claims for payment over a period of time from 2014 through 2019 even though, among other things, the documentation did not support the medical necessity of the services.

2. I have no authority to review the 10-year re-enrollment bar imposed by CMS.

When a supplier’s billing privileges are revoked, the supplier may not participate in the Medicare program until the end of the imposed re-enrollment bar.  42 C.F.R. § 424.535(c)(1).  Here, CMS imposed a 10-year re-enrollment bar.  I have no authority to review the re-enrollment bar.  See 42 C.F.R. § 498.3(b); Linda Silva, P.A., DAB No. 2966 at 11 (2019); Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016).

Page 10

3. The undisputed evidence establishes that CMS had a legitimate basis to include Petitioner on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 423.100.

As discussed above, CMS determined to include Petitioner on the CMS preclusion list, effective October 30, 2020.  Preclusion list is defined in 42 C.F.R. § 422.2 as follows:

[A] CMS compiled list of individuals and entities that –

(1) Meet all the following requirements:
(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in [42 C.F.R.] § 424.535(a)(3) of this chapter.

(ii) The individual or entity 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 (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.

In considering the regulatory criteria for placement on the preclusion list, I find that CMS has met the three factors for the inclusion of Petitioner on the preclusion list:  Petitioner’s enrollment is revoked under the provision of 42 C.F.R. § 424.535(a)(8) for abuse of billing privileges; Petitioner is currently subject to a 10-year re-enrollment bar; and CMS determined that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  As for the third factor, CMS found the underlying conduct that led to the revocation to be detrimental to the best interests of the Medicare program.  CMS considered the three subfactors listed in the regulation.  See 42 C.F.R. § 422.2.  CMS found Petitioner’s underlying conduct to be serious because, at the least, it calls into question his ability and willingness to be a trustworthy Medicare partner.  CMS Ex. 1 at 10.  CMS also considered that his conduct could pose a serious threat to the integrity of the Medicare program because the Medicare program depends on the integrity of its partners.  CMS Ex. 1 at 10-11.  CMS did not consider any other evidence

Page 11

relevant to its determination to place Petitioner on the preclusion list.  Thus, CMS had a legitimate basis to include Petitioner on the preclusion list.

Analysis of Petitioner’s Arguments

Petitioner asserts that the revocation of “a provider’s billing privileges does not per se permit CMS to place that provider or supplier on the CMS Preclusion List.”  P. Br. at 4.  Petitioner argues that CMS must “additionally find that the underlying conduct that led to the provider’s revocation of Medicare billing privileges is detrimental to the best interests of the Medicare Program.”  P. Br. at 4.

In asserting that his inclusion on the preclusion list is not justified, Petitioner argues that he is now permanently retired from all patient care and will not return to patient care, nor will he submit bills to any payor, government, or otherwise in the future.  Petitioner further argues that it would be patently unfair for CMS to possess unfettered discretion to make decisions that are not subject to some level of judicial review at some juncture.  P. Br. at 9.  While asserting that he was unaware of the educational opportunities asserted by CMS, Petitioner also maintains that CMS not only failed to consider that he is permanently retired, but also failed to consider his exemplary career and record.

Petitioner contends that it is within the ALJ’s authority to review the exercise of discretion that CMS utilized in revoking his billing privileges and placing him on a preclusion list and that CMS unfairly failed to consider all the mitigating factors, including that he is now permanently retired.  Petitioner cites several cases in support of his assertion that it is within an ALJ’s authority to review CMS’s discretion in revoking a supplier’s billing privileges and placing the supplier on a preclusion list.  In fact, Petitioner cites two specific cases in support of this argument.  While Petitioner cites Joseph A. DeLucca and Joseph A. DeLucca, DPM, LLC, I note that the ALJ in that case specifically stated that where the regulations grant CMS discretion to determine that a provider or supplier’s underlying conduct is detrimental to Medicare, “I may not substitute my own determination for that of CMS.”  DAB CR5709 at 12 (2020) (citing Brian K. Ellefsen, DO., DAB No. 2626 at 7 (2015)).  Further, the ALJ noted that Petitioner offered no evidence that CMS failed to consider the relevant factors or did so improperly.  Id. at 13.  The ALJ added, “Nor would I find any error by CMS, were I authorized to review its application of the factors.”  Id. at 12-13 (emphasis added).  Thus, the ALJ clearly acknowledged that she did not have authority to review CMS’s exercise of discretion.

Petitioner also cites an ALJ’s decision in Debra S. Bailey Ph.D., DAB CR5534 (2020) in support of his claim that ALJ’s have conducted review of CMS’s discretion in finding that a petitioner’s conduct is detrimental to the Medicare program.  P. Br. at 8.  In that case, CMS exercised its discretion in finding that the petitioner’s felony conviction was detrimental to the Medicare program and its beneficiaries and thus warranted revocation.

Page 12

Bailey, DAB CR5534 at 7.  Petitioner apparently relies heavily on the ALJ’s wording:  “Moreover, even if I could review CMS’s discretion to determine whether Petitioner’s felony offense is detrimental to Medicare and its beneficiaries, I would find CMS’s exercise of discretion proper.”  Id. at 9 (emphasis added).

In neither of these cited cases did the ALJ rest her decision on the finding that CMS considered all the relevant factors related to CMS’s discretion in determining that the petitioner’s conduct was detrimental to the Medicare program.  In fact, the ALJ’s wording in each case acknowledged that the ALJ did not have that authority to review such a determination.  Moreover, Petitioner cites no authority to demonstrate that an ALJ’s exercise of discretion, as Petitioner purports, would be precedential.

Although CMS has discretion pursuant to 42 C.F.R. §§ 422.222(a)(6) and 423.102(c)(6)(vi) not to include Petitioner on the preclusion list or to remove his name from the list, CMS has not exercised its discretion to do so.  I find no authority to conduct review of the following CMS exercises of discretion:  the determination that Petitioner’s underlying conduct that led to the revocation was detrimental to the best interests of the Medicare program; and the determination that Petitioner should be listed on the preclusion list.  My review is limited to determining whether there is a basis for placing Petitioner’s name on the preclusion list.  83 Fed. Reg. 16,440, 16,642-43 (Apr. 16, 2018); 42 C.F.R. §§ 498.3(b)(20), 498.5(n); cf. Saeed A. Bajwa, MD, DAB No. 2799 at 14-16 (2017).

Despite Petitioner’s assertions that CMS did not consider all the potentially mitigating factors in its decision to place him on the preclusion list, CMS’s discretionary act to place Petitioner on the preclusion list is not subject to review based on equity or mitigating circumstances.  Letania Bussell, M.D., DAB No. 2196 at 12-13 (2008).  I am not authorized to overturn a legally valid agency action based on equitable grounds or otherwise grant equitable relief.  See Wendell Foo, M.D., DAB No. 2904 at 25 (2018) (citing Foot Specialists of Northridge, DAB No. 2773 at 18 (2017)).  Furthermore, CMS is only required to consider the factors listed in the regulation, not the factors Petitioner considers CMS should consider when making its determination.  See 42 C.F.R. § 422.2.

My review here is limited to whether CMS had the legitimate basis to include Petitioner on the preclusion list.  83 Fed. Reg. at 16,642-43 (“Any appeal under this proposed provision, however, would be limited strictly to the individual’s inclusion on the preclusion list.  The proposed appeals process would neither include nor affect appeals of payment denials or enrollment revocations, for there are separate appeals processes for these actions.”).

I find that the record supports a conclusion that Petitioner’s conduct underlying the basis for its revocation is detrimental to the best interests of the Medicare program.  Therefore, I uphold Petitioner’s inclusion on the preclusion list.

Page 13

VII. Conclusion

For the foregoing reasons, I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(ii) and uphold Petitioner’s inclusion on CMS’s preclusion list.