Bhupinder N. Bhandari, M.D., DAB CR6614 (2025)

Petitioner’s Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(3),1 effective June 6, 2022.  Petitioner is barred from reenrolling in Medicare for 10 years from December 23, 2022 through December 23, 2032.  Petitioner’s name will appear on the Centers for Medicare & Medicaid Services (CMS) preclusion list from May 8, 2023 through June 6, 2032. 

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I.  Background and Procedural History

Noridian Healthcare Solutions, Inc., a Medicare administrative contractor (MAC), notified Petitioner by letter dated November 23, 2022, that his Medicare enrollment and billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(3), (4), and (9) effective June 6, 2022.  CMS Ex. 1 at 42.  The MAC stated the revocation was based on Petitioner’s June 6, 2022 felony conviction in the U.S. District Court, Northern District of California, San Francisco Division (district court) for solicitation and receipt of kickbacks in connection with a federal health care program in violation of federal law.  CMS Ex. 1 at 42.  The MAC imposed a 10-year bar to reenrollment.  The MAC also advised Petitioner that he would be listed on the CMS preclusion list as defined by 42 C.F.R. §§ 422.2, 423.100.  CMS Exhibit (Ex.) 1 at 42-45. 

Petitioner requested reconsideration by letters dated January 6, February 2, and March 24, 2023.  CMS Ex. 1 at 15-16, 18-22, 24-26.  On May 8, 2023, a CMS hearing officer issued a reconsidered determination upholding the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3), (4), and (9).   The hearing officer did not change the June 6, 2022 effective date of revocation, which was the date of Petitioner’s conviction.  The hearing officer upheld the 10-year reenrollment bar, which began 30 days after the date of the MAC’s November 23, 2022 initial determination, i.e., December 23, 2022.  The hearing officer determined pursuant to 42 C.F.R. §§ 422.222(a)(5)(iii) and 423.120(c)(6)(vii)(C), that Petitioner’s name should be added to the CMS preclusion list for 10 years from the date of his conviction, which would be through June 6, 2032.  CMS Ex. 1 at 1-13. 

Petitioner requested a hearing before an administrative law judge (ALJ) on July 7, 2023.  On July 10, 2023, the case was assigned to me for hearing and decision and my Standing Order was issued.  Petitioner’s request for hearing was timely, the parties have not challenged my authority to decide this case, and I have jurisdiction. 

On August 9, 2023, CMS filed a prehearing brief and motion for summary judgment (CMS Br.) and CMS Exhibits 1 and 2.  On September 8, 2023, Petitioner filed his prehearing brief and opposition to CMS’s motion for summary judgment (P. Br.) with no exhibits.  CMS filed a reply brief on September 25, 2023.  Petitioner did not object to my consideration of CMS Exhibits 1 and 2, and they are admitted as evidence.2

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II.  Discussion

1. Applicable Law

Section 1831 of the Social Security Act (Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.3  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). 

The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for the enrollment in Medicare of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations, such as revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505, a supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary. 

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS and the MACs.  42 C.F.R. § 424.535.  CMS or a MAC may revoke an enrolled supplier’s Medicare enrollment and billing privileges and supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535.  The effective date of the revocation is controlled by 42 C.F.R. § 424.535(g).  After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from reenrolling in the Medicare program for a minimum of one year, but no more than 10 years, except in limited circumstances that do not exist in this case.  42 C.F.R. § 424.535(c).

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Effective June 15, 2018, CMS was required to establish a preclusion list as defined by 42 C.F.R. §§ 422.2 and 423.100.  There is only one preclusion list.  83 Fed. Reg. 16,440, 16,641-67 (Apr. 16, 2018).  CMS adds to the preclusion list the names of individuals and entities as provided by the definition of the preclusion list: 

Preclusion list means a CMS compiled list of individuals and entities that—

(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; or 

(2)  Meet both of the following requirements: 

(i)  The individual or entity has engaged in behavior, other than that described in § 424.535(a)(3) of this chapter, for which CMS could have revoked the individual or entity to the extent applicable had they been enrolled in Medicare. 

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(ii)  CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph (2)(ii), CMS considers the following factors: 

(A)  The seriousness of the conduct involved. 

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

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

(3)  The individual or entity, regardless of whether they are or were enrolled in Medicare, has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.  Factors that CMS considers in making such a determination under this paragraph (3) are—

(i) The severity of the offense;

(ii) When the offense occurred; and

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

42 C.F.R. § 422.2 (italics in original, bold added).  The definition applicable to Medicare Part D at 42 C.F.R. § 423.100 is virtually identical except that the regulation refers to “prescriber” rather than “individual or entity” and no “(3)” appears in the text of the third criteria.  No payment under Medicare Parts C and D may be made to anyone on the preclusion list.  42 C.F.R. §§ 422.222-.224, 422.504(i)(2)(v), 423.120(c)(6).  CMS must notify a supplier in writing that the supplier is being added to the preclusion list, the basis for the action, and inform the supplier of the right to ALJ review and appeal pursuant to 42 C.F.R. Part 498.  42 C.F.R. §§ 422.222(a)(2), 423.120(c)(6)(v). 

A supplier whose enrollment and billing privileges have been revoked or who has been placed on the preclusion list may request reconsideration and review as provided by 42 C.F.R. Part 498.  42 C.F.R. §§ 424.545(a), 422.222(a)(2), 423.120(c)(6)(v), 498.5(l).  A supplier submits a written request for reconsideration to CMS or its contractor.

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42 C.F.R. § 498.22(a).  CMS or its contractor must give notice of its reconsidered determination to the supplier, giving the reasons for its determination and specifying the conditions or requirements the supplier failed to meet, and the right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the supplier, the supplier has the right to request a hearing by an ALJ and further review by the Board.  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), (20), 498.5.  A hearing on the record, also known as an oral hearing, is required under the Act, unless waived.  Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied.  42 C.F.R. § 498.5(l)(2).  The supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c). 

Revocation and preclusion list review is strictly limited to whether there is a basis for the revocation and for adding the supplier to the CMS preclusion list.  Douglas Bradley, M.D., DAB No. 2663 at 13 (2015); 83 Fed. Reg. at 16,642.  The Board has consistently held that ALJ review of the CMS revocation determination is limited to whether CMS had a legal basis for revocation.  Letantia Bussell, M.D., DAB No. 2196 at 10 (2008).  If CMS establishes the elements necessary for revocation, “revocation must be sustained, and neither the [ALJ] nor the Board may ‘substitute its discretion for that of CMS in determining whether revocation was appropriate.’”  Douglas Bradley, M.D., DAB No. 2663 at 13 (quoting 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 duration of a bar to reenrollment imposed by CMS is not subject to review by an ALJ or the Board.  Vijendra Dave, M.D., DAB No. 2672 at 11 (2016); Heidy Woody, NP, DAB No. 3102 at 19-21 (2013). 

2. Issues

Whether there was a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges; and

Whether there was a basis to include Petitioner on the CMS preclusion list. 

3. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the undisputed facts and analysis. 

1. Summary judgment is appropriate. 

CMS filed a motion for summary judgment.  Petitioner opposes CMS’s motion.  A supplier whose enrollment has been revoked and/or who has been placed on the

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preclusion list has a right to a hearing and judicial review, and a hearing on the record is required under the Act.  Act §§ 205(b) (42 U.S.C. § 405(b)), 1866(h)(1), (j) (42 U.S.C. §§ 1395cc(h)(1), (j)); 42 C.F.R. §§ 498.3(b)(17), 498.5; Crestview, 373 F.3d at 748-51.  A party may waive appearance at an oral hearing, but the party must do so affirmatively in writing.  42 C.F.R. § 498.66(a).  In this case, Petitioner requested and has not waived an oral hearing.  P. Br. at 1.  Accordingly, disposition on the written record alone is not permissible, unless summary judgment is appropriate as I conclude it is in this case. 

Summary judgment is not automatic upon request but is limited to certain specific conditions.  The Secretary’s regulations that establish the procedures to be followed in adjudicating Petitioner’s case are at 42 C.F.R. Part 498.  42 C.F.R. §§ 405.800, 405.803(a), 424.545(a), 498.3(b)(17), (20).  The regulations do not establish a summary judgment procedure or recognize such a procedure.  However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. Part 498.  See, e.g., Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board also has recognized that the Federal Rules of Civil Procedure (Fed. R. Civ. P.) do not apply in administrative adjudications such as this.  However, the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Standing Order.  The parties were given notice by the Standing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Standing Order ¶¶ D, G. 

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that, if proven, would affect the outcome of the case.  Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 4-5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5-6 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

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The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differ from that used in resolving a case on the merits after a hearing or when a hearing is waived.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. Part 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. Part 498.  Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

Viewing the evidence before me in a light most favorable to Petitioner and drawing all inferences in Petitioner’s favor, I conclude as discussed in the following analysis that there are no genuine disputes as to any material facts pertinent to revocation under 42 C.F.R. § 424.535(a)(3) or the addition of Petitioner’s name to the CMS preclusion list that require a hearing in this case.  Issues raised by Petitioner must be resolved against him based on the application of law to the undisputed facts.  Petitioner argues summary judgment is not appropriate because there is a legal dispute that must be resolved.  P. Br. at 16.  However, the fact there is an issue of law that must be decided does not defeat a properly supported motion for summary judgment.  There is no issue of fact that requires a trial and CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate. 

2. Petitioner was convicted of a felony criminal offense on June 6, 2022, when the district court accepted his guilty plea to one felony count of solicitation and receipt of kickbacks in connection with a federal health care program in violation of 42 U.S.C. § 1320a-7b(b).  42 C.F.R. § 1001.2.
3. The Secretary has determined and provided by regulation that CMS may revoke the Medicare enrollment of a supplier who, within the preceding 10 years, was convicted of a felony that CMS determines is detrimental to the best interests of Medicare and its beneficiaries.  42 C.F.R. § 424.535(a)(3)(i). 

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4. Petitioner’s felony conviction of the financial crime of solicitation and receipt of kickbacks is per se detrimental to the best interest of Medicare and its beneficiaries under 42 C.F.R. § 424.535(a)(3)(ii)(B) and (D).
5. CMS also determined that Petitioner’s felony conviction was detrimental to Medicare and its beneficiaries based on the case-specific analysis permitted under 42 C.F.R. § 424.535(a)(3)(i).
6. Petitioner’s conviction occurred during the 10 years preceding the initial determination to revoke Petitioner’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(3)(i).
7. There is a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3). 

The CMS hearing officer upheld revocation pursuant to 42 C.F.R. § 424.535(a)(3), (4), and (9).  But under 42 C.F.R. § 424.535(a), revocation is authorized for any one of the grounds listed in 42 C.F.R. § 424.535(a).  Donna Maneice, M.D., DAB No. 2826 at 8 (2017) (there need be only one ground for revocation).  Given my limited scope of review in cases such as this and in the interest of judicial economy, I need consider only 42 C.F.R. § 424.535(a)(3) to determine that there is a basis for revocation.  Review of revocation and addition to the CMS preclusion list is strictly limited to whether there was a basis for revocation and addition to the CMS preclusion list.  Douglas Bradley, M.D., DAB No. 2663 at 13; Letantia Bussell, M.D., DAB No. 2196 at 10; 83 Fed. Reg. at 16,642.  An ALJ and the Board may not review the duration of a bar to reenrollment.  Heidy Woody, NP, DAB No. 3102 at 19-21.  Therefore, finding more than one basis for revocation would have no impact on the duration of the bar to reenrollment imposed by CMS against Petitioner or affect placing Petitioner’s name on the preclusion list.  Accordingly, revocation based on 42 C.F.R. § 424.535(a)(4) and (9) are not discussed further. 

1. Undisputed Facts

The parties were advised in the Standing Order ¶ G that, for purposes of ruling on a motion for summary judgment, a fact alleged and not specifically denied would be accepted as true and offered evidence would be considered admissible and true absent a specific objection.  The following findings of fact are based upon the undisputed or conceded facts.  I do not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence in deciding a summary judgment motion.  The evidence is viewed in the light most favorable to Petitioner, the nonmovant, with all inferences drawn in Petitioner’s favor. 

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It is not disputed that Petitioner is a medical doctor specializing in gastroenterology and licensed by the State of California.  CMS Ex. 1 at 19, 37, 56, 112; CMS Ex. 2 at 1; P. Br. at 1-2. 

On March 9, 2021, Petitioner was charged in the district court by a superseding indictment alleging eight felony counts.  CMS Ex. 1 at 111-129.  On June 6, 2022, Petitioner pleaded guilty to count seven of the superseding indictment.  CMS Ex. 1 at 109.  Count seven alleged: 

On or about November 30, 2017, in the Northern District of California and elsewhere, the defendant BHUPINDER BHANDARI, and others, each aided and abetted by others, did knowingly and willfully solicit and receive any remuneration, including kickbacks and bribes, directly and indirectly, overtly and covertly, in case and in kind, to wit, from a person purportedly representing a home health agency, in return for referring individuals to a person for the furnishing and arranging for the furnishing of any item and service for which payment may be made in whole and in part under a Federal health care program. 

All in violation of Title 42, United States Code, Section 1320a-7b(1)(A) and Title 18, United States Code, Section 2. 

CMS Ex. 1 at 125. 

The district court accepted Petitioner’s guilty plea on June 6, 2022.  CMS Ex. 1 at 109.  On January 23, 2023, the district court imposed judgment for the violation of the anti-kickback statute (42 U.S.C. § 1320a-7b(b)).  Petitioner was sentenced to probation for four years and to pay a fine of $25,000.  He was ordered to pay a $1,000 forfeiture money judgment and a $100 assessment.  CMS Ex. 1 at 47-53, 102-07. 

On November 23, 2022, the MAC issued the initial determination in this case, which is within 10 years of the date of Petitioner’s June 6, 2022 conviction.  CMS Ex. 1 at 42-45. 

On May 8, 2023, CMS issued the reconsidered determination in this case.  CMS Ex. 1 at 1-13. 

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2. Analysis

Congress granted the Secretary authority to revoke the enrollment of a provider or supplier convicted under federal or state law of a felony offense that the Secretary determines is detrimental to the program or its beneficiaries.  Act § 1866(b)(2)(D).  CMS is delegated authority by the Secretary to revoke a provider’s or supplier’s Medicare enrollment and billing privileges for any of the reasons listed in 42 C.F.R. § 424.535(a).  CMS needs only one basis under 42 C.F.R. § 424.535(a) to revoke a provider’s or supplier’s Medicare enrollment and billing privileges.  I conclude CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3). 

My scope of review in a supplier enrollment revocation is narrow.  If I conclude that CMS had a regulatory basis for revocation under 42 C.F.R. § 424.535(a), I may not refuse to apply the regulation and I must uphold the revocation.  Douglas Bradley, M.D., DAB No. 2663 at 13 (CMS’s revocation authority is discretionary, but an ALJ and the Board are limited to deciding whether CMS had a legal basis for revocation and may not substitute their discretion for that of CMS in determining whether revocation is appropriate under all the circumstances); Stanley Beekman, D.P.M., DAB No. 2650 at 10 (2015) (an ALJ and the Board must sustain a revocation “[i]f the record establishes that the regulatory elements are satisfied”); Letantia Bussell, M.D., DAB No. 2196 at 13 (the only issue before an ALJ and the Board in enrollment cases is whether CMS has “established a legal basis for its actions”).  Therefore, based on the analysis in these prior Board decisions, my scope of review is limited to determining whether CMS established a lawful basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3). 

Pursuant to 42 C.F.R. § 424.535(a)(3)(i), CMS has the authority to revoke a supplier’s billing privileges if CMS determines that the “supplier was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  The Secretary has specified crimes that are per se detrimental to the best interests of the program and its beneficiaries in 42 C.F.R. § 424.535(a)(3)(ii).  The listing of per se detrimental felonies in 42 C.F.R. § 424.535(a)(3)(ii) is not exhaustive, but specifically permits revocation for detrimental felonies like the crimes listed.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 10.  The Board has concluded that “CMS may revoke Medicare billing privileges under the authority of section 424.535(a)(3) based on any financial crime, regardless of whether the supplier’s particular financial crime is specified in the regulation’s illustrative list of financial crimes.”  Stanley Beekman, D.P.M., DAB No. 2650 at 7. 

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The elements necessary for revocation pursuant to 42 C.F.R. § 424.535(a)(3) are:  (1) the supplier was convicted of a federal or state felony offense; (2) the conviction occurred within the 10 years preceding the revocation action; and (3) the Secretary has specified that the conviction is per se detrimental in 42 C.F.R. § 424.535(a)(3)(ii) or CMS has determined on a case-by-case basis under 42 C.F.R. § 424.535(a)(3)(i) that the supplier’s felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  Fady Fayad, M.D., DAB No. 2266 at 7-8 (2009); Michael Scott Edwards, OD, & M. Scott Edwards, OD, PA, DAB No. 2975 at 9-11 (2019); Neil Niren, M.D. & Neil Niren, M.D., P.C., DAB No. 2856 (2018).

Petitioner agrees that whether one has been convicted is determined pursuant to 42 C.F.R. § 1001.2.  P. Br. at 5.  The regulation provides one is convicted in a federal, state, or local court when:  (1) a judgment of conviction is entered; (2) a finding of guilt has been made; (3) a guilty plea or no contest plea has been accepted, or (4) an individual or entity enters into a first offender, deferred adjudication, or other program or arrangement where a judgment of conviction is withheld.  42 C.F.R. § 1001.2.  Petitioner pleaded guilty to count seven of the eight-count superseding indictment on June 6, 2022.  The district court accepted Petitioner’s plea on the same day.  CMS Ex 1 at 109.  Petitioner was, therefore, convicted on June 6, 2022, within the meaning of 42 C.F.R. § 1001.2, because he pleaded guilty to a federal felony crime and the district court accepted his guilty plea on that date.  P. Br. at 5.  There is no dispute that the MAC’s November 23, 2022 initial determination to revoke was issued within 10 years of Petitioner’s June 6, 2022 conviction.  Accordingly, I conclude that the first two elements necessary for revocation under 42 C.F.R. § 424.535(a)(3) are satisfied. 

Petitioner disputes the third element, i.e., the MAC and CMS determinations that the offense of which he was convicted is detrimental to Medicare or its beneficiaries.  Petitioner argues that he is not subject to revocation under 42 C.F.R. § 424.535(a)(3)(i) because his conviction is not detrimental to Medicare or its beneficiaries and because it is not a financial crime like those listed in 42 C.F.R. § 424.535(a)(3)(ii)(B).  P. Br. at 1, 4-5.  He argues that unlike the crimes listed in 42 C.F.R. § 424.535(a)(3)(ii)(B) that involve taking money or property from another, his crime did not involve taking and should not be considered a financial crime.  P. Br. at 5.  Petitioner argues that his crime is “entirely dissimilar” to the crimes listed in 42 C.F.R. § 424.535(a)(3)(ii)(B), because his crime did not involve theft, deception, or any false statements or representations.  P. Br. at 5-6. 

Petitioner’s arguments that his crime was not financial in nature like the crimes listed in 42 C.F.R. § 424.535(a)(3)(ii)(B) is without merit.  Petitioner was convicted of a violation of 42 U.S.C. § 1320a-7b(b)(1)(A) which provides: 

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(1) Whoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind—

(A) in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program, or

*     *     *     *

shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both. 

42 U.S.C. § 1320a-7b(b)(1)(A).  The statute criminalizes knowing and willful solicitation or receipt of any remuneration, whether cash or in-kind, for the conduct specified.  Petitioner admitted in his January 6, 2023 letter to CMS that he accepted $1,000 from an undercover agent “in exchange for referring patients” to a home health agency.  CMS Ex. 1 at 22.  He was convicted of knowingly and willfully receiving that remuneration.  CMS Ex. 1 at 109, 125.  The admitted receipt of the $1,000 for a criminal purpose is all that is necessary to make Petitioner’s crime a financial crime like the crimes of extortion, embezzlement, income tax evasion, and insurance fraud, all of which have the common element of attempting to obtain or obtaining something of value to which the perpetrator has no right.  I conclude Petitioner’s crime is a financial crime and for that reason his crime is per se detrimental under 42 C.F.R. § 424.535(a)(3)(ii)(B). 

Although not specifically cited by CMS in the reconsidered determination or in briefing, Petitioner’s crime is also per se detrimental under 42 C.F.R. § 424.535(a)(3)(ii)(D).  The Board in Dinesh Patel, M.D., DAB No. 2551 at 6 (2013) pointed out it has long recognized that a conviction for violating the federal anti-kickback statute is a program-related conviction for which exclusion from Medicare, Medicaid, and all federal health care programs is mandated by Congress under section 1128(a)(1) of the Act.  The Board’s analysis and conclusion is persuasive.  Petitioner was convicted of violating 42 U.S.C. § 1320a-7b(b)(1)(A).  The language of that statute establishes the nexus or connection to federal health care programs.  Petitioner received $1,000 in exchange for his referring individuals for receipt of an item or service for which payment might be made in whole or part by a federal health care program.  CMS Ex. 1 at 125.  Petitioner is subject on these facts to mandatory exclusion pursuant to section 1128(a)(1) of the Act.  Therefore, pursuant to 42 C.F.R. § 424.535(a)(3)(ii)(D) the Secretary has determined Petitioner’s conviction is per se detrimental to the interests of Medicare and its

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beneficiaries.  Any argument by Petitioner that 42 C.F.R. § 424.535(a)(3)(ii)(D) should not be applied in this case for lack of notice should be rejected.  The MAC and CMS have both been clear about the facts upon which the revocation determination was made, and Petitioner cannot deny he had notice of those facts.  The provisions of the regulations and the Act, i.e., Act § 1128(a)(1) and 42 C.F.R. § 424.535(a)(3)(ii)(D), are published and Petitioner cannot deny at least constructive knowledge of the Act and regulations.  My application of 42 C.F.R. § 424.535(a)(3)(ii)(D) to the facts of Petitioner’s case does not require advance notice to Petitioner as Petitioner is aware of the facts and presumed to know the law.  Moreover, Petitioner’s right to appeal my decision ensures review of any alleged error by the Board and the procedural due process provided for such an appeal under 42 C.F.R. pt. 498. 

The CMS hearing officer also conducted a case specific analysis and determined that Petitioner’s conviction was detrimental to Medicare and its beneficiaries.  The hearing officer concluded that Petitioner’s felony conviction was severe based on the facts underlying his conviction and his sentence.  The hearing officer concluded that Petitioner’s conduct showed dishonesty, untrustworthiness, lack of integrity, and poor judgment.  The hearing officer commented that Petitioner’s conduct showed a lack of trustworthiness and veracity.  The hearing officer reasoned that because payment for claims by Medicare relies upon the trustworthiness and judgment of those who participate in Medicare, a lack of trustworthiness and good judgment can negatively impact Medicare funds and Medicare beneficiaries.  CMS Ex. 1 at 5.  Although not specifically mentioned by the hearing officer, it is remarkable that Petitioner admitted in his request for reconsideration that: 

After the undercover agent first approached him, Dr. Bhandari accepted $1,000 in exchange for referring patients to a non-existent, fictitious home health agency.  Although Dr. Bhandari initially took the $1,000, he subsequently returned the money to the undercover agent because he was suspicious of the arrangement.  Unfortunately, the physician colleague was still seeking cooperation credit for his own crimes, and he later convinced Dr. Bhandari that it was alright to accept the money from the undercover agent, so Dr. Bhandari took back the $1,000, which resulted in the underlying case. 

CMS Ex. 1 at 22.  Petitioner made the same admission in his brief.  P. Br. at 11.  This admission by Petitioner shows that he knew it was wrong to accept the $1,000; he suspected a trap and tried to escape the situation; but he was influenced by a third party to go ahead and take the money even though Petitioner clearly knew his conduct was wrong and likely criminal.  Petitioner’s admission is consistent with the hearing officer’s

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determination that Petitioner was not trustworthy and exercised bad judgment and his crime shows he poses a risk to Medicare and its beneficiaries if permitted to continue to participate in Medicare.  Arguably my review of the hearing officer’s case specific determination is limited to finding that the review was done.  But based on the undisputed facts my conclusion would be no different from that of the hearing officer. 

Petitioner argues that his conviction is not detrimental to the interests of Medicare or its beneficiaries due to numerous mitigating factors.  Petitioner urges me to consider that he accepted responsibility for his crime, he never actually referred any patients, he never improperly billed a healthcare program, no patients were harmed by his conduct, he continued to deliver high quality care to his patients at multiple facilities, and he received the support of many colleagues.  P. Br. at 6.  Even if I could substitute my judgment for that of the hearing officer, I would not do so.  The Secretary has, through notice and comment rulemaking, notified providers and suppliers participating in Medicare that offenses like that committed by Petitioner are per se detrimental.  Further, the facts before me are no different than those considered by the CMS hearing officer and those facts clearly support a conclusion that Petitioner’s conduct was detrimental to the best interests of Medicare and its beneficiaries. 

I conclude that the undisputed facts satisfy the elements necessary to establish a basis for revocation of Petitioner’s Medicare enrollment under 42 C.F.R. § 424.535(a)(3): 

(1) On June 6, 2022, Petitioner was convicted of a felony offense when he pleaded guilty to violating the anti-kickback law (42 U.S.C. § 1320a-7b(b)) and the district court accepted his plea on the same day.  

(2) The MAC issued its initial determination to revoke Petitioner’s Medicare enrollment and billing privileges on November 23, 2023, within the 10‑year period that began on the date of Petitioner’s conviction – June 6, 2022.

(3) Petitioner’s felony conviction was per se detrimental to the best interests of the Medicare program under 42 C.F.R. § 424.535(a)(3)(ii)(B) because Petitioner pleaded guilty to a felony financial crime as described in the statute.  Petitioner’s conviction is also per se detrimental under 42 C.F.R. § 424.535(a)(3)(ii)(D) because section 1128(a)(1) of the Act requires his mandatory exclusion from Medicare, Medicaid, and all federal health care programs. 

Many of Petitioner’s arguments regarding the basis for revocation, the duration of the reenrollment bar, and the addition of his name to the CMS preclusion list could be viewed as requests for equitable relief.  But, when I determine as I have here, that CMS had a basis for revocation, I have no authority to substitute my judgment for that of CMS

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and void the revocation based on equitable considerations or provide any other equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  Furthermore, I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009). 

8. The effective date of revocation of Petitioner’s Medicare enrollment and billing privileges is the date of Petitioner’s conviction, June 6, 2022.  42 C.F.R. § 424.535(g).

Generally, revocation is effective 30 days after CMS or the MAC mails notice of its determination to revoke, with some exceptions, such as when the revocation is based on a felony conviction.  42 C.F.R. § 424.535(g)(1).  The effective date of revocation based on a felony conviction is the date of the felony conviction.  42 C.F.R. § 424.535(g)(2)(ii).   On June 6, 2022, the district court accepted Petitioner’s guilty plea to one count of solicitation and receipt of kickbacks in connection with a federal health care program.  CMS Ex. 1 at 109, 125.  Therefore, Petitioner was convicted on June 6, 2022, within the meaning of 42 C.F.R. § 1001.2.  Petitioner does not dispute he was convicted within the meaning of 42 C.F.R. § 1001.2 on June 6, 2022.  P. Br. at 5.  Therefore, the effective date of Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(3) was June 6, 2022. 

9. I have no authority to review CMS’s determination to impose a 10‑year bar to Petitioner’s reenrollment in Medicare.
10. The bar to reenrollment began 30 days after the date on which the MAC mailed the notice of revocation, in this case November 23, 2023, and continues through December 23, 2032.  42 C.F.R. § 424.535(c).

The Secretary requires that when a provider’s or supplier’s Medicare enrollment is revoked, they are barred from participating in Medicare from the effective date of the revocation through the end of a reenrollment bar imposed by CMS.  42 C.F.R. § 424.535(c)(1).  The imposition of the reenrollment bar is triggered by the revocation.  There is no decision by the MAC or CMS that a reenrollment bar will be imposed.  Vijendra Dave, M.D., DAB No. 2672 at 10 (reenrollment bar is a “direct and legally mandated consequence” of revocation).  The only decision by the MAC and CMS is the duration of the bar, and that decision is not subject to my review.

When a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is generally barred from reenrolling in the Medicare program for one to 10 years.  42 C.F.R. § 424.535(c).  In this case, the MAC imposed a reenrollment bar of 10 years effective

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December 30, 2023, 30 days after the postmark of the November 23, 2022 initial determination.4  CMS Ex. 1 at 42.  The CMS hearing officer upheld the reenrollment bar.  CMS Ex. 1 at 11.

There is no statutory or regulatory language establishing a right to review of the duration of the reenrollment bar CMS imposes.  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.535(c); 424.545; 498.3(b); and 498.5.  The Board has repeatedly held that the duration of a revoked supplier’s reenrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and is not subject to ALJ review.  Frank B. Lee, M.D., DAB No. 3170 at 2, 32-33 (2025).

11. There is a basis for adding Petitioner’s name to the CMS preclusion list from May 8, 2023, the date of the reconsidered determination, through June 6, 2032, the end of the 10-year period following the date of Petitioner’s conviction on June 6, 2022.

Pursuant to 42 C.F.R. §§ 422.2 and 423.100, the preclusion list is a list of individuals or entities compiled by CMS who meet one of three sets of specified criteria.  In this case, the third set of criteria are applicable because Petitioner was convicted of a felony under state or federal law with in the previous 10 years.  The third set of criteria are the following:  

(3) The individual or entity, regardless of whether they are or were enrolled in Medicare, has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.  Factors that CMS considers in making such a determination under this paragraph (3) are—

(i) The severity of the offense;

(ii) When the offense occurred; and

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

42 C.F.R. § 422.2 (definition of preclusion list).  The definition of preclusion list under 42 C.F.R. § 423.100 related to the Medicare Part D program is the same except for the

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use of the term “prescriber” rather than “individual or entity” and “(3)” does not appear in the text.  Under the third set of criteria, whether an individual’s, entity’s, or prescriber’s Medicare enrollment was or could have been revoked and a reenrollment bar imposed is not a consideration.  It is the existence of a felony conviction within the preceding 10 years that CMS determines is detrimental to the best interests of Medicare that provides the basis for adding the individual’s, entity’s, or prescriber’s name to the CMS preclusion list.  In deciding to add a name to the preclusion list, CMS must consider the severity of the offense, when the offense occurred, and any other information CMS deems relevant.

It is undisputed that Petitioner was convicted of a federal felony offense within the 10 years preceding the CMS determination to add his name to the preclusion list.  The hearing officer’s reconsidered determination shows that she determined that Petitioner’s offense was detrimental to the best interest of Medicare considering the severity of the offense, when it occurred, and other information.  The CMS hearing officer found Petitioner’s offense to be severe based on the underlying criminal conduct and sentence.  She found that, even though it was more than five years before that Petitioner was convicted, that fact alone was not dispositive.  As other information, the hearing officer considered that she had found Petitioner’s crime per se detrimental to Medicare and its beneficiaries.  She found that Petitioner’s crime jeopardized the integrity of the Medicare program including public confidence in Medicare participating providers and suppliers and the quality of the care and services they provide.  The CMS hearing officer concluded upon consideration of the three factors, that Petitioner’s conviction was detrimental to the best interests of the Medicare program and a proper basis for adding Petitioner’s name to the CMS preclusion list.  CMS Ex. 1 at 8-9.

My review is strictly limited to determining whether there is a basis for adding Petitioner’s name to the CMS preclusion list.  83 Fed. Reg. at 16,642.  I have found that Petitioner was convicted of a felony criminal offense within the 10 years preceding the CMS determination to place his name on the CMS preclusion list.  I have also found that the CMS hearing officer determined that Petitioner’s crime was detrimental to the best interests of Medicare upon consideration of the three factors authorized for consideration.  Petitioner urges me to reweigh the factors the CMS hearing officer considered in determining Petitioner’s crime was detrimental and a basis to place Petitioner’s name on the CMS preclusion list for 10 years.  P. Br. at 10-14.  However, as previously explained my review is strictly limited.  Petitioner cites no authority, and I am aware of none, that allows me to reweigh the factors CMS considered (CMS Ex. 1 at 8-9) or to substitute my discretion for CMS after I conclude there was a basis for adding Petitioner’s name to the CMS preclusion list, i.e., that there was a felony conviction within the preceding 10 years and CMS exercised its discretion and determined the crime was detrimental to the best interests of Medicare.  If I could reweigh the factors, I would also conclude that Petitioner’s offense was detrimental to the best interests of Medicare.  Petitioner’s

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offense, while involving a minimal monetary amount, was severe because he admitted he became suspicious after receiving $1,000 for a referral and gave the money back but then changed his mind and took the money, which led to his conviction.  CMS Ex. 1 at 22; P. Br. at 11.  The admission shows Petitioner knew his conduct was wrong, but he proceeded despite that knowledge.  The crime reflects adversely upon his integrity, honesty, and judgment.  The fact he was convicted more than five years before he was placed on the preclusion list has no impact on my opinion.  The passage of time does not show Petitioner to be of better judgment or that he is more honest or that he has a higher level of integrity.  The regulation provides for a 10-year period on the preclusion list beginning with the date of the conviction, so Petitioner suffered no prejudice from the delay in adding his name to the preclusion list.  Finally, the evidence shows that Petitioner had an excellent reputation as a skilled physician who worked hard providing care and services in multiple settings.  I accept as true for purposes of summary judgment that there was no change in his reputation as a hardworking and skilled physician who worked hard.  But Petitioner was not convicted because of his professional skill or competence.  He was convicted of a crime – a violation of a statue specifically intended to protect federal healthcare programs – and to have committed the violation knowingly and willfully.  It was Petitioner’s willingness to engage in such criminal conduct that made him a threat and is detrimental to the Medicare program, not his talents and diligence as a physician.

An individual’s, entity’s, or prescriber’s name is added to the preclusion list after the 60‑day period for requesting reconsideration of the initial determination has expired or the date of a reconsidered determination if reconsideration is requested.  42 C.F.R. §§ 422.222(a)(3)(ii), 423.120(c)(6)(v)(C).

Generally, an individual’s or entity’s name is included on the preclusion list for the same period as the individual or entity is subject to a reenrollment bar.  42 C.F.R. §§ 422.222(a)(5)(i), 423.120(c)(6)(vii)(A).  However, under 42 C.F.R. §§ 422.222(a)(5)(iii) and 423.120(c)(6)(vii)(C), an individual’s or entity’s name remains on the preclusion list for a period of 10 years beginning on the date of the felony conviction, unless CMS determines that a shorter period is warranted.  42 C.F.R. §§ 422.222 (a)(5)(iii).  The hearing officer did not find a shorter period to be warranted.  CMS has also not exercised its discretion under to 42 C.F.R. §§ 422.222(a)(6) and 423.102(c)(6)(vi) to not list Petitioner’s name on the preclusion list or to remove his name from the list.  The CMS hearing officer determined that Petitioner’s name would remain on the CMS preclusion list from May 8, 2023 (the date of the reconsidered determination) until June 6, 2032, 10 years from the date of his conviction.  Arguably, 42 C.F.R. §§ 422.222(a)(5)(i) and (iii) and 423.120(c)(6)(vii)(A) and (C), if read together, provide that Petitioner’s name should remain on the preclusion list until his reenrollment bar expires on December 22, 2032, rather than a minimum of 10 years from the date of his conviction.  But I will not upset the hearing officer’s interpretation of the

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regulation as it is more favorable for Petitioner.  And I find no authority for an ALJ to review the CMS determination of the duration of the period one is on the preclusion list under 42 C.F.R. §§ 422.222(a)(2)(i) and 423.120(c)(6)(v)(A), which provide that the determination to list one on the preclusion list is subject to appeal but are silent as to whether the duration is subject to review.

Accordingly, I conclude that there is a basis for adding Petitioner’s name to the CMS preclusion list from May 8, 2022 through June 6, 2032.

III.  Conclusion

For the foregoing reasons, the Medicare enrollment and billing privileges of Petitioner are revoked pursuant to 42 C.F.R. § 424.535(a)(3), effective June 6, 2022.  Petitioner is subject to a bar to reenrollment from December 23, 2022 through December 23, 2032.  There is a basis for listing Petitioner on the CMS preclusion list from June 6, 2022 through June 6, 2032.