Jewel A. Stevens, M.D., DAB CR6576 (2024)

DECISION

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

I. Background and Procedural History

Petitioner is a physician.  In a December 6, 2023 notice of initial determination, a CMS contractor revoked Petitioner’s enrollment in the Medicare program as a physician/supplier for the following reasons: 

42 CFR § 424.535(a)(1) – Noncompliance 
The State Medical Board of Ohio suspended [Petitioner’s] medical license, effective July 14, 2023.

42 CFR § 424.535(a)(9) – Failure to Report 
The State Medical Board of Ohio suspended [Petitioner’s] medical license, effective July 14, 2023.  [Petitioner] did not

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notify [CMS] of this adverse legal action within 30 calendar days as required under 42 CFR § 424.516(d)(1).

CMS Ex. 3 at 1 (emphasis omitted).  The CMS contractor also imposed a five-year reenrollment bar.  CMS Ex. 3 at 1.  Finally, the notice of initial determination also stated that CMS would add Petitioner’s name to the CMS Preclusion List.  CMS Ex. 3 at 1-2.

Petitioner timely requested reconsideration of the initial determination.  Petitioner submitted proof that Petitioner mailed, and the CMS contractor received, notice of Petitioner’s medical license suspension.  CMS Ex. 2.  Petitioner also stated that her medical license would soon be reinstated and that Petitioner complied with all of the requirements imposed on her when her license was suspended.  CMS Ex. 2.  On April 2, 2024, Petitioner informed the Medicare contractor that her Ohio medical license was now reinstated and that she would like to resume serving Medicare patients.  CMS Ex. 8.

In a May 15, 2024 reconsidered determination, a CMS hearing officer reversed the initial determination’s conclusion that Petitioner’s enrollment was subject to revocation based on a failure to timely report the medical license suspension to CMS.  CMS Ex. 1 at 5.  However, the hearing officer upheld the revocation of enrollment based on Petitioner’s medical license suspension.  The hearing officer also upheld the five-year reenrollment bar, and the addition of Petitioner’s name to the CMS preclusion list.  CMS Ex. 1 at 3-7.

On June 14, 2024, Petitioner requested a hearing before an administrative law judge (ALJ) to dispute the unfavorable aspects of the reconsidered determination.  Petitioner attached two substantive documents in support of the hearing request.1  Electronic Filing System (E-File) Doc. Nos. 1, 1b, 1c.  On June 17, 2024, the Civil Remedies Division (CRD) acknowledged receipt of Petitioner’s hearing request, provided the parties with the prehearing submission schedule that I established, and issued my Standing Order.

On July 22, 2024, CMS filed a prehearing brief/motion for summary judgment (CMS Br.), along with 10 proposed exhibits.  Petitioner did not file a prehearing exchange.

II.      Admission of Evidence

Petitioner did not object to CMS’s proposed exhibits.  See Standing Order ¶ 10.  Therefore, I admit all of them into the record without objection.

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I also admit into the record the documents that Petitioner submitted in support of her hearing request, which pertain to her disciplinary case before the State Medical Board of Ohio (State Medical Board).  E-File Doc. Nos. 1b, 1c.  CMS objected to the admission of these documents in relation to Petitioner’s revocation of enrollment appeal.  CMS Br. at 11-12.  I agree with CMS that, in provider and supplier enrollment appeals, a supplier must show good cause to submit evidence to an ALJ when that evidence was not previously submitted to CMS during the reconsideration stage of the appeals process.  42 C.F.R. § 498.56(e).  Therefore, I cannot consider the documents that Petitioner submitted in conjunction with Petitioner’s challenge to the revocation of her enrollment in the Medicare program.  However, there is no prohibition on submitting evidence to an ALJ when challenging the placement of an individual’s name on the CMS Preclusion List.  See Standing Order ¶ 9 (stating Petitioner did not need to show good cause for submitting evidence related to a CMS Preclusion List case).

III.     Decision on the Written Record

I directed the parties to submit the written direct testimony of any witnesses they wanted to offer.  Standing Order ¶ 11.  I further informed the parties as follows:

If the parties either do not file any written direct testimony or the parties do not request to cross-examine any of the witnesses from whom written direct testimony has been submitted, I will consider such actions by the parties to serve as a constructive request for a decision on the written record because there will be no reason to hold an in-person hearing.

Standing Order ¶ 7(g)(iii).  I also stated:  “Unless a hearing is required for cross-examination of a witness or witnesses, the record will be closed and the case will be ready for a decision after all the submission deadlines have passed.”  Standing Order ¶ 14.

Neither party submitted written direct testimony from any witnesses and all submission deadlines have passed.  Therefore, I decide this case based on the written record.  Anil Hanuman, D.O., DAB No. 3080 at 11-12 (2022); Civil Remedies Division Procedures § 19(d).

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)(1).

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2. Whether CMS had a legitimate basis to include Petitioner’s name on the CMS Preclusion List under 42 C.F.R. §§ 422.2 and 423.100.

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 U.S.C. §§ 1395n(a), 1395u(h)(1); 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.  If CMS determines that an applicant does not meet the requirements for enrollment, CMS may deny enrollment.  42 C.F.R. § 424.530.

Once a supplier is enrolled, CMS may revoke that 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 10 years in duration.  42 C.F.R. § 424.535(c).

CMS may add an individual or entity to the CMS Preclusion List for any of the reasons stated in the regulatory definition of the term “Preclusion List.”  42 C.F.R. §§ 422.2, 423.100.  If this happens, a Medicare Advantage Organization under Medicare Part C may not pay for a health care item, service, or drug provided by the individual or entity on the CMS Preclusion List.  42 C.F.R. § 422.222(a)(1)(i).  Also, a Medicare Part D sponsor must not reimburse a Medicare beneficiary for a drug prescribed by an individual on the CMS Preclusion List.  42 C.F.R. § 423.120(c)(6)(vii)(C).

VII.    Findings of Fact

1. Petitioner is a physician who was first licensed to practice medicine in Ohio on July 1, 1978.  CMS Ex. 4 at 1; CMS Ex. 10 at 1.
2. In a November 10, 2021 letter, the State Medical Board informed Petitioner that it planned to take disciplinary action against her for several violations of state law

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involving the improper administration of drugs, which included a departure from the minimal standard of care.  CMS Ex. 6.  The letter provided detailed factual allegations related to inappropriate/excessive prescribing of controlled substances, and a lack of monitoring of the effects of those medications, for eight patients from approximately January 2001 to July 2019.  CMS Ex. 6 at 1-10.

3. In a February 8, 2023 letter, the State Medical Board informed Petitioner that it planned to take disciplinary action against her due to a failure to cooperate with its investigation of her.  CMS Ex. 5.  The letter provided the following alleged facts:
   1. In response to a July 18, 2019 State Medical Board subpoena duces tecum, Petitioner’s front desk supervisor provided copies of patient records that the supervisor certified as complete, accurate, and true.  CMS Ex. 5 at 1.
   2. Petitioner had been involved in and directed the front desk supervisor’s response to the July 18, 2019 subpoena.  In answers to interrogatories, Petitioner “admitted that [Petitioner] directed the staff member to include in the July 2019 Subpoena response only electronic progress notes, and knowingly excluded paper records, telephone messages, and letters to patients, although [Petitioner] failed to notify the [State Medical] Board of the excluded records until after the issuance of the [November 10,] 2021 Citation.”  CMS Ex. 5 at 1.
4. In June 2023, Petitioner and the State Medical Board entered into a Consent Agreement.  CMS Ex. 4.  The Consent agreement became effective on June 14, 2023 (i.e., the latest date of signature on the agreement).  CMS Ex. 4 at 6-7.  The Consent Agreement included the following provisions:
   1. Petitioner admitted the factual allegations stated in the February 8, 2023, and November 10, 2021 letters from the State Medical Board proposing disciplinary action against her (both of which are referred to as a Notice of Opportunity for a Hearing).  CMS Ex. 4 at 2.
   2. Petitioner agreed that her Ohio medical license was to be suspended for an indefinite period of time but for not less than 180 days.  CMS Ex. 4 at 2.
   3. Petitioner agreed that the license suspension would take effect 30 days after the effective date of the agreement.  CMS Ex. 4 at 2.
   4. Petitioner agreed to be subject to monitoring and a variety of requirements to obtain reinstatement of her medical license.  CMS Ex. 4 at 2-4.

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5. Petitioner was required to pay a $3,500 fine.  CMS Ex. 4 at 5.
   5. On November 14, 2023, the Ohio “License Look Up” website showed that Petitioner’s medical license was suspended at that time.  CMS Ex. 7.
   6. In February 2024, Petitioner and the State Medical Board entered into a Consent Agreement.  CMS Ex. 9.  The Consent Agreement acknowledged that Petitioner had complied with the terms of the June 2023 Consent Agreement and that Petitioner’s medical license would be reinstated.  CMS Ex. 9 at 2.  The Consent Agreement also specified that Petitioner would serve a probationary term and be subject to several requirements, including having a practice plan and a monitoring physician.  CMS Ex. 9 at 2-4.
   7. On May 9, 2024, the Ohio “License Look Up” website showed that Petitioner’s medical license was active, but on probation, since February 14, 2024.  CMS Ex. 10.

VIII.   Conclusions of Law and Analysis

1. CMS had a legitimate basis to revoke Petitioner’s enrollment as a physician/supplier in the Medicare program because Petitioner’s license to practice medicine was suspended.

Physicians who participate in the Medicare program are considered “suppliers.”  42 U.S.C. § 1395x(d).  A supplier must maintain the applicable federal and state licensure required for the relevant supplier type.  42 C.F.R. § 424.516(a)(2).  For a “physician” this means he or she must be “a doctor of medicine . . . legally authorized to practice medicine and surgery by the State in which he performs such function or action. . . .”  42 U.S.C. § 1395x(r)(1); 42 C.F.R. § 410.20(b).  CMS may revoke the enrollment of a supplier in the Medicare program when the supplier is not in compliance with enrollment requirements.  42 C.F.R. § 424.535(a)(1).

Petitioner is only licensed to practice medicine in Ohio.  CMS Ex. 4 at 2.  The record is clear that Petitioner’s medical license in Ohio was suspended from approximately July 2023 to February 2024.  CMS Exs. 4, 7, 9.  Petitioner did not dispute this in her hearing request, and Petitioner admitted this in correspondence with the CMS contractor.  CMS Exs. 2, 8.

Therefore, I conclude that Petitioner failed to maintain Medicare enrollment requirements when her license to practice medicine was suspended, and I affirm CMS’s determination to revoke her Medicare enrollment under 42 C.F.R. § 424.535(a)(1).

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

CMS may add an individual to the CMS Preclusion List when:  1) CMS revoked the individual’s Medicare enrollment; 2) the individual is currently under a reenrollment bar; and 3) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  42 C.F.R. §§ 422.2 (paragraph (1) of definition of “Preclusion List”), 423.100 (paragraph (1) of definition of “Preclusion List”).  When determining whether the underlying basis for the revocation is detrimental to the best interests of the Medicare program, CMS considers: 

• The seriousness of the conduct underlying the individual’s or entity’s revocation.
• The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program.
• Any other evidence that CMS deems relevant to its determination.

42 C.F.R. §§ 422.2 (paragraph (1)(iii) of definition of “Preclusion List”), 423.100 (paragraph (1)(iii) of definition of “Preclusion List”).

There is no question that CMS revoked Petitioner’s Medicare enrollment and that Petitioner is currently under a reenrollment bar.  Therefore, the only question is whether the underlying basis for revocation is detrimental to the best interests of the Medicare program.

In the reconsidered determination, the CMS hearing officer provided the following analysis of the three factors for determining whether the underlying basis for the revocation is detrimental to the best interests of the Medicare program: 

The conduct that led to the revocation of [Petitioner’s] Medicare enrollment under § 424.535(a)(1) was the suspension of her Ohio medical license.  Regarding factor (A), [Petitioner] admittedly, was not truthful in dealing with the [State Medical] Board regarding an investigative subpoena of medical records and knowingly provided incomplete records to the [State Medical] Board, instructing her desk supervisor to certify that the records provided were “complete, accurate and a true copy of patient’s medical and pharmaceutical record.”  [Petitioner] also was not truthful when answering questions in the [State Medical] Board’s investigation and directed her staff to provide limited records in response to the [State Medical] Board’s subpoena.  CMS

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finds [Petitioner’s] conduct extremely serious as she has obstructed an investigation by the [State Medical] Board, knowingly provided incomplete records, had her employee certify the records were complete, showed no regard for authority or compliance with applicable laws and regulations, and influenced others she supervises to also disregard laws and regulations.  This behavior calls in question [Petitioner’s] honesty, trustworthiness, and willingness to abide by applicable administrative rules and policies.  The severity of her noncompliant conduct is further demonstrated by the punishment imposed by the [State Medical] Board that suspended her license from July 14, 2023 until February 14, 2024 and placed severe conditions and terms on her Ohio medical license, including probation.

Regarding factor (B), CMS finds that the conduct that led to [Petitioner’s] revocation could significantly impact the integrity of the Medicare program.  A physician who does not comply with [State Medical] Board demands and is deliberately dishonest in her dealings with the [State Medical] Board poses an undue risk to Medicare beneficiaries and Trust Funds.  This conduct has the potential to be replicated and represents a severe negative effect on the integrity on the Medicare program.  [Petitioner] admitted to failing to provide complete patient records in response to a [State Medical] Board subpoena.  The integrity of the Medicare program is dependent upon the integrity and reliability of our partners. [Petitioner’s] behavior is of grave concern to CMS as we find this behavior unacceptable as it could severely affect the integrity of the Medicare program.

Regarding factor (C), CMS finds it relevant the history of [Petitioner’s] noncompliant and dangerous behavior.  On November 10, 2021, [t]he [State Medical] Board issued [Petitioner] a citation, “based on allegations with respect to the care and treatment of certain specified patients, that [Petitioner] treated and/or failed to appropriate[ly] treat, and/or failed to appropriately document treatment, and/or departed from, or failed to conform to, minimal standards of care for similar practitioners under the same or similar circumstances, which include inappropriate and/or excessive prescribing, inadequate monitoring of patient medications,

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failure to appropriately explain or justify prescribed medications, or to obtain or effective[ly] document patient consent, and a failure to check the Ohio Automated Rx Reporting Systems (OARRS) before prescribing controlled substances”.  Because of her behavior, [Petitioner’s] medical license was suspended by the [State Medical] Board indefinitely for at least 180 days on July 14, 2023 and was also subject to general probationary requirements, conditions for reinstatement including the requirement to enter into a subsequent consent agreement, and payment of a $3,500 fine. As part of the Consent Agreement, the [State Medical] Board stipulated that [Petitioner] was required to submit quarterly declarations, appear before the [re]presentative for an interview, attend a controlled substances prescribing course, and submit an application for a physician monitor for required period after license reinstatement.

CMS acknowledges that [Petitioner’s] Ohio medical license is now active as she requests that she not be placed on the CMS Preclusion List.  However, for all the reasons we have stated above, we find [Petitioner’s] inclusion on the CMS Preclusion List to be appropriate and well supported.  As a result, CMS upholds [Petitioner’s] placement on the CMS Preclusion List, effective the date of this decision.

CMS Ex. 1 at 6-7 (citations omitted).

Petitioner takes issue with the portion of her misconduct involving the failure to provide complete and truthful responses to a subpoena issued by the State Medical Board.  Petitioner states in her hearing request that she never intentionally was dishonest with the State Medical Board and that she believed that she provided all of the necessary information.  She further states that she has never been deceitful in her submissions to Medicare or insurance companies.  Petitioner also asserts that she adheres to the “highest of personal integrity” and would never purposely deceive anyone.  E-File Doc. No. 1.

As support for these arguments, Petitioner provided a letter that her attorney sent to the State Medical Board explaining that Petitioner’s responses to the State Medical Board’s subpoena were an “innocent oversight” and that Petitioner “did her best to comply with the [State Medical] Board without the benefit of further explanation or guidance.”  E-File Doc. No. 1b at 2.  Petitioner also provided the interrogatories and her responses to the interrogatories that the State Medical Board viewed as an admission that Petitioner was

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responsible for providing incomplete and untruthful responses to the State Medical Board’s subpoena.  E-File Doc. No. 1c.

Although Petitioner did not provide an argument in the hearing request concerning the improper prescribing of controlled substances, Petitioner’s attorney stated to the State Medical Board that Petitioner could show she acted properly.  E-File Doc. No. 1b at 3.

The most significant weakness in Petitioner’s argument is that she signed a Consent Agreement in which she “admits to the factual and legal allegations contained in the February 8, 2023 Notice of Opportunity for Hearing and the November 10, 2021 Notice of Opportunity for Hearing.”  CMS Ex. 4 at 2, 7.  She cannot prevail in this appeal by now denying her previous admissions in her license suspension matter.

A review of administrative appellate decisions concerning CMS Preclusion List appeals indicates that I should review the reasons the hearing officer gave as why the basis for the revocation is detrimental to the best interests of the Medicare program.  See Omair Chaudry, M.D., DAB No. 3145 at 17-18 (2024); Anthony Del Piano, M.D., DAB No. 3096 at 15-16 (2023) (summarizing CMS’s reasons for determining the supplier’s conviction was detrimental to the best interests of the Medicare program and finding that the ALJ did not err in upholding CMS’s determination).  Given that Petitioner admitted to violations of the standard of care when prescribing controlled substances for eight patients over a period of more than 18 years and to failing to cooperate with the State Medical Board’s investigation into her prescribing practices, CMS is justified, for the reasons stated in the reconsidered determination, in concluding that the basis for the revocation is detrimental to the best interests of the Medicare program.  While Petitioner has taken necessary actions to have her medical license reinstated, CMS could still reasonably conclude that Petitioner’s previous professional misconduct outweighed those more recent efforts by Petitioner.

I conclude that the reconsidered determination provided adequate reasoning for placing Petitioner’s name on the CMS Preclusion List.  Therefore, I affirm that action.

IX.     Conclusion

I affirm CMS’s revocation of Petitioner’s enrollment in the Medicare program and CMS’s placement of Petitioner’s name on the CMS Preclusion List.