Jeremy T. Adams, DAB CR6615 (2025)

DECISION

Noridian Healthcare Solutions (Noridian), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Jeremy T. Adams, pursuant to 42 C.F.R. §§ 424.535(a)(9) (failure to report), and 424.535(a)(12) (other program termination).  CMS also placed Petitioner on its preclusion list pursuant to 42 C.F.R. §§ 422.2 and 423.100.  Petitioner challenges both the revocation action and his placement on the preclusion list.  For the reasons set forth below, I affirm both.

I.    Background

Petitioner is a Registered Nurse (RN) and Certified Registered Nurse Anesthetist (CRNA) licensed to practice in California and Washington.  Petitioner voluntarily

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surrendered his license and certificate to the Board of Registered Nursing in the State of California, while a disciplinary hearing was pending.  CMS Ex. 5.  On September 9, 2022, the California Department of Health Care Services (CDHCS) issued a notice informing Petitioner that, due to the surrender of his license, he was automatically suspended from the Medi-Cal Program, effective August 22, 2022.  CMS Ex. 4.  Petitioner did not appeal the suspension, nor did Petitioner report the surrendering of his license and certificate, and the suspension from Medi-Cal to Noridian.  DAB E-File Dkt. No. 1, Request for Hearing (RFH) at 1; CMS Ex. 1.

On February 3, 2023, and February 17, 2023, Noridian notified Petitioner of the revocation of his Medicare billing privileges in Washington, effective March 5, 2023, and California, effective March 19, 2023.  CMS Exs. 2 and 3.  Noridian also informed Petitioner he would be barred from re-enrolling as a Medicare biller for five years and that CMS would place him on its preclusion list.  CMS Ex. 2 at 1, 3; CMS Ex. 3 at 1, 3.

Petitioner sought reconsideration of these actions.  CMS Ex. 1.  On August 25, 2023, CMS issued a reconsideration decision affirming Petitioner’s revocation in California and Washington, his five-year reenrollment bar, and his placement on the preclusion list.  CMS Ex. 8.

On October 19, 2023, Petitioner timely filed a request for hearing before an Administrative Law Judge (ALJ) in the Civil Remedies Division of the Departmental Appeals Board.  DAB E-File Dkt. No. 1.  Petitioner filed CMS’s Reconsideration Request Decision and a copy of his Participation Monitoring Contract with Washington Health Professional Services (WHPS) with his hearing request.  DAB E-File Dkt. Nos. 1a-1b.

This matter was initially assigned to Administrative Law Judge (ALJ) Bill Thomas.  On October 20, 2023, ALJ Thomas issued an Acknowledgment and Standing Pre-hearing Order (Pre-hearing Order) providing a schedule for the parties to submit arguments and evidence.  DAB E-File Dkt. No. 2, 2a.  Later the same day, Petitioner filed a Notice of Appearance as well as two exhibits.  DAB E-File Dkt. Nos. 3, 3a, 4.

CMS timely filed its exchange consisting of its Motion for Summary Judgment with Incorporated Memorandum of Law (CMS’s Motion for Summary Judgment) and eight proposed exhibits (CMS Exs. 1-8).  Petitioner did not file a prehearing exchange.  Petitioner confirmed by email with the Attorney-Advisor assigned to assist ALJ Thomas with this case, that he would not be filing additional

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documentation.  DAB E-File Dkt. No. 8.  This case was reassigned to me on December 3, 2024.  DAB E-File Dkt. No. 9.

II.    Admission of Exhibits and Decision on the Record

Petitioner did not object to CMS’s proposed exhibits.  I therefore admit CMS exhibits one through eight into the record.  Pre-hearing Order ¶ 10; Civ. Remedies Div. P. § 14(e).

Petitioner did not file a pre-hearing exchange.  However, Petitioner did include one attachment (his contract with WHPS) to his Request for Hearing, and filed two additional supporting documents the next day, which are labeled P. Exs. 1 and 2.  DAB E-File Dkt. Nos. 1b, 3, 3a.  These documents appear to be new documentary evidence.  CMS did not object to or comment on Petitioner’s submissions.  CMS’s Motion for Summary Judgment.

Because Petitioner appears pro se, and in the interest of making a complete administrative record, I find good cause for admission of all Petitioner exhibits and submissions into the record.  42 C.F.R. §§ 498.56(e), 422.222(a)(2)(i), 423.120(c)(6)(v)(A), 498.60(b)(1).  Petitioner’s exhibits one and two, and Petitioner’s contract with WHPS are entered into the record.

Neither party has proposed witnesses.  Therefore, a hearing is not necessary, and I decide this case on the written record, meaning the parties’ written submissions and arguments, and without considering whether the standard for summary judgment is met.  Pre-hearing Order ¶ 13; Civ. Remedies Div. P. § 19(d).  I deny CMS’s Motion for Summary Judgment as moot.

III.    Issues

Whether CMS had a legitimate basis for revoking Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(9);

Whether CMS had a legitimate basis for revoking Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(12); and

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

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IV.    Jurisdiction

I have jurisdiction to decide the issues in this case.  42 C.F.R. §§ 498.3(b)(17) and (20), 498.5(l)(2) and (n)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

V.     Discussion

1. Statutory and Regulatory Background

The 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 Secretary has delegated authority to revoke Medicare enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or a Medicare contractor may revoke an enrolled supplier’s Medicare enrollment and billing privileges for any of the reasons listed in 42 C.F.R. § 424.535.  After a supplier’s Medicare enrollment is revoked, the supplier is “barred from participating in the Medicare program from the effective date of the revocation until the end of the reenrollment bar.”  42 C.F.R. § 424.535(c)(1).  At the time of the initial determinations in this case, the length of the reenrollment bar ranged from one to ten years.  42 C.F.R. § 424.535(c)(1)(i).

Individuals and entities whose enrollment have been revoked and who are under a reenrollment bar may also, in certain circumstances, be placed on CMS’s preclusion list.  Medicare Advantage organizations and Medicare Part D plan sponsors may not provide reimbursement for any items or services furnished by an individual or entity on CMS’s preclusion list or for prescriptions those individuals write.  42 C.F.R. §§ 422.2, 422.222, 422.224, 423.100, 423.120(c)(6).

2. Findings of Fact, Conclusions of Law, and Analysis
   1. CMS had a valid basis under 42 C.F.R. § 424.535(a)(9) to revoke Petitioner’s billing privileges in the Medicare program because he did not report the surrender of his license and certificate in California or suspension from Medi-Cal to CMS.

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The regulations require nonphysician practitioners to report all changes in enrollment, other than a change of ownership, adverse legal action, or a change in practice location, within 90 days of the event.  42 C.F.R. § 424.516(d)(2).  CMS may revoke the Medicare enrollment of a nonphysician practitioner who fails to meet this reporting obligation.  42 C.F.R. § 424.535(a)(9).  CMS must consider four factors to determine whether revocation on this basis is appropriate: 

(i)      Whether the data in question was reported;

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

(iii)     The materiality of the data in question; and

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

Id.

CMS argues Petitioner failed to meet his obligation under 42 C.F.R. § 424.516(d)(2) to notify Noridian of the surrendering of his registered nursing license and nurse anesthetist certificate on August 1, 2022, to the California Board of Registered Nursing, and subsequent suspension from the Medi-Cal, the state’s Medicaid program, effective August 22, 2022.  CMS’s Motion for Summary Judgment at 7-8.  Petitioner does not deny that he failed to report the surrendering of his license or suspension, but previously asserted that he was unaware of his reporting obligation.  CMS Ex. 1 at 2; see also RFH.  CMS previously explained, “[i]gnorance is no excuse, and it does not exempt [Petitioner] from having to report . . . .”  CMS Ex. 8 at 5.  I agree.  Suppliers are expected to understand the regulatory requirements and their obligations, including this one.  John Hartman, D.O., DAB No. 2564 at 3 (2014).

In considering whether revocation was appropriate, CMS also explicitly considered the regulatory factors set forth at 42 C.F.R. § 424.535(a)(9).  CMS Ex. 8 at 5.  CMS confirmed that Petitioner did not report the surrendering of his California licenses at all, and that the unreported information is plainly material to Petitioner’s continued enrollment in Medicare.  Id.  CMS stated that it relies on timely disclosures to screen suppliers for continued enrollment in the Medicare program and that CMS must have complete and accurate data to confirm the supplier meets Medicare requirements and that Medicare payments are correctly made.  Id.

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I find CMS has established that Petitioner failed to notify CMS of the surrendering of his license and certificate and subsequent suspension from Medi-Cal, as required by 42 C.F.R. § 424.516(d)(2), and that CMS considered the applicable regulatory factors.  Therefore, I conclude CMS has established a basis to revoke Petitioner’s enrollment as a supplier in the Medicare program pursuant to 42 C.F.R. § 424.535(a)(9).

Because I have concluded that CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9), I need not consider whether CMS also had other bases on which to revoke Petitioner’s enrollment.  See, e.g., Daniel Wiltz & Family Healthcare Clinic, APMC, DAB No. 2864 at 12 (2018) (if one legal basis for revocation is established, CMS’s action would be sustained “regardless of the existence of any additional bases for revocation”).  I nevertheless conclude that CMS had at least one additional basis for revoking Petitioner’s enrollment, as I explain in the following section of this decision.

2. Petitioner’s termination from California’s Medicaid program provided CMS a legitimate basis to revoke his Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(12).

Pursuant to 42 C.F.R. § 424.535(a)(12), CMS may revoke a supplier’s Medicare billing privileges when two elements have been satisfied.  First, a state Medicaid program must have “terminated or revoked or otherwise barred” that supplier’s Medicaid’s billing privileges.  42 C.F.R. § 424.535(a)(12)(i).  Second, the supplier must have “exhausted all applicable appeal rights.”  42 C.F.R. § 424.535(a)(12)(ii). Both elements are satisfied here.

There is no dispute CDHCS “terminated, revoked, or otherwise barred” Petitioner from participating in California’s Medicaid program.  CMS Ex. 4 at 1 (CDHCS notice to Petitioner that he was automatically suspended from the Medi-Cal program based on the surrendering of his license while a disciplinary action was pending); see also RFH.  Nor is there any dispute that this action became final.  See CMS Br. at 7 (citing CMS Ex. 6 as evidence that Petitioner exhausted his appeal rights).  Petitioner does not dispute that he was and remains suspended from Medi-Cal, or in any way claim that he appealed or sought review of the suspension.  CMS Ex. 1; RFH.

Instead, Petitioner explains the circumstances that led to his decision to surrender his California licenses, which then led to his automatic suspension from Medi-Cal.

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RFH; see also CMS Ex. 1.  Petitioner also explained that he was not made aware of the ramifications of surrendering his California license by his then attorney.  CMS Ex. 1 at 2.  While I appreciate Petitioner’s contentions and have no reason to question his veracity, they simply do not provide a basis on which I can reverse CMS’s revocation.  I have no authority to review the underlying circumstances that led to or the legitimacy of the CDHCS’s suspension of Petitioner from the state’s Medicaid program.  My review is limited to whether CMS has established the regulatory elements necessary to permit revocation.  Stanley Beekman, D.P.M., DAB No. 2650 at 10 (2015) (stating an ALJ’s review “is specifically limited to whether there was a legal basis for CMS to revoke a provider’s or supplier’s Medicare billing privileges”) (citations omitted).  As previously explained, the regulatory elements are satisfied here.

Therefore, I find CMS has established the CDHCS terminated Petitioner’s participation from its Medicaid program and that this decision became final prior to CMS’s revocation action.  As such, CMS has established a basis to revoke Petitioner’s enrollment as a biller to the Medicare program pursuant to 42 C.F.R. § 424.535(a)(12).

3. I cannot review the length of nor instruct CMS to modify the start date of the reenrollment bar.

Petitioner disputes the duration of the five-year bar to reenrollment or, in the alternative, requests that I order CMS to modify the reenrollment bar to run concurrently with his Participation Monitoring contract with WHPS.  RFH.  However, the Board has unambiguously explained that such a matter is beyond the scope of an ALJ’s review, stating: 

A decision by CMS or its contractor about how long to bar a revoked supplier from re-enrolling in Medicare, unlike the determination to revoke the supplier’s billing privileges, is not an appealable “initial determination” under 42 C.F.R. Part 498.  Blossomwood Medical, P.C., et al., DAB No. 2914, at 11 (2018); Vijendra Dave, M.D. [DAB No. 2672] at 8-11 [ [(2016)] (stating that the authority of an ALJ or the Board in a revocation appeal “does not extend to reviewing the length of the reenrollment bar imposed by CMS”).  We therefore cannot consider or act upon Petitioner’s contention that the three-year reenrollment bar was excessive in her circumstances.

Linda Silva, P.A., DAB No. 2966 at 11 (2019).

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Petitioner has not identified any legal error in CMS’s imposition of the reenrollment bar, and I find none.  Pursuant to 42 C.F.R. § 424.535(c), CMS is authorized to impose a bar to reenrollment of up to ten years when it has revoked a supplier’s enrollment.  Here, CMS upheld a five-year bar to reenrollment, which is well within the timeframes established by regulation.  CMS Ex. 8 at 8.  I may not otherwise review the duration nor onset of the reenrollment bar and have no legal authority to provide the relief Petitioner seeks.  See Vijendra Dave, M.D., DAB No. 2672 at 11 (“CMS’s determination regarding the duration of the reenrollment bar is not reviewable.”).

4. CMS had a legal basis to add Petitioner to the preclusion list.

To place a provider or supplier on its preclusion list, CMS must establish the following elements: 

1. The individual or entity is currently revoked from Medicare under § 424.535;
2. The individual or entity is currently under a reenrollment bar under § 424.535(c); 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; 423.100.

There is no dispute that the first two elements are met here.  At the time of his placement on the preclusion list, August 25, 2023, CMS had revoked Petitioner’s Medicare enrollment and imposed a five-year reenrollment bar under 42 C.F.R. § 424.535(c).  CMS Ex. 8 at 1, 9.

As to the third element, CMS must consider the following factors to determine whether the conduct that resulted in revocation is detrimental to the best interests of the Medicare program: 

1. The seriousness of the conduct underlying the individual’s or entity’s revocation;

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2. The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program; and
3. Any other evidence that CMS deems relevant to its determination.

42 C.F.R. §§ 422.2; 423.100.

Where the regulations have granted CMS discretion to determine whether a provider or supplier’s underlying conduct is detrimental to the Medicare program, I may not substitute my own judgment as to whether CMS properly exercised that discretion.  Brian K. Ellefsen, D.O., DAB No. 2626 at 7 (2015).

Here, CMS met its regulatory obligation to consider whether the conduct underlying Petitioner’s revocation was detrimental to the best interests of the Medicare program by assessing the seriousness of that conduct and the degree to which that conduct could affect the integrity of the Medicare program.  42 C.F.R. § 422.2, Preclusion list.  In its reconsideration decision, CMS explicitly weighed these factors, including, inter alia, the conduct that led to Petitioner’s revocation.  CMS Ex. 8 at 6-7.  This included Petitioner being under the influence while performing his duty as a nurse and illegally consuming and obtaining controlled substances from his employer.  Id. at 6.  CMS also noted that Petitioner’s failure to report the surrendering of his licenses and suspension from Medi-Cal significantly impacts the integrity of the Medicare program because inaccurate information puts the Medicare Trust Funds at risk and, therefore, withholding of information relevant to an individual’s enrollment eligibility represents a significant program integrity risk.  Id. at 7.  Finally, CMS stated that Petitioner’s conduct of consuming and obtaining drugs illegally was inexcusable and put patients’ well-being at risk, and that any conduct that risks the health and safety of beneficiaries is detrimental to the best interests of the Medicare program.  Id. 

As the summary discussion demonstrates, CMS considered the seriousness of Petitioner’s conduct and the degree to which Petitioner’s conduct could impact the integrity of the Medicare program.  42 C.F.R. § 422.2, Preclusion list; see also 42 C.F.R. § 423.100.  CMS’s analysis of the factors it was required to consider is well-articulated and contains no factual errors or misrepresentations.  CMS has established the conduct which resulted in Petitioner’s revocation was detrimental to the best interests of the Medicare program.

In conclusion, I find CMS had a legitimate basis to place Petitioner on its Preclusion List.  See 42 C.F.R. §§ 422.2, 423.100.

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VI.    Conclusion

I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(9) and (12).  I further affirm CMS’s determination to place Petitioner on its preclusion list.