Kieran Slevin, M.D., DAB CR6692 (2025)

DECISION

Petitioner Kieran Slevin, M.D. is a New Jersey physician who participated in the Medicare program as a supplier of services.  Finding that he intentionally and improperly altered patient records, the New Jersey State Board of Medical Examiners suspended his medical license for six months.  Based on that suspension, the Centers for Medicare & Medicaid Services (CMS) revoked Petitioner’s Medicare enrollment and imposed a one-year re-enrollment bar.  

Petitioner appeals.  

I find that, pursuant to 42 C.F.R. §§ 424.516(a)(2) and 424.535(a)(1), CMS appropriately revoked Petitioner Slevin’s Medicare enrollment because he did not comply with the Medicare requirement that he be licensed.  

Background

By letter dated October 17, 2024, the Medicare contractor advised Petitioner Slevin that, pursuant to 42 C.F.R. § 424.535(a)(1), his Medicare privileges were revoked, effective August 25, 2024, because the New Jersey State Board of Medical Examiners had

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suspended his medical license on that date.  CMS Exhibit (Ex.) 6.  The letter also advised Petitioner that, pursuant to section 424.535(c), CMS was imposing a one-year reenrollment bar, effective 30 days from the date the notice was postmarked.  CMS Ex. 6 at 1.1  

Petitioner requested reconsideration.  CMS Ex. 4.  

In a reconsidered determination, dated January 15, 2025, a provider enrollment hearing specialist upheld the revocation and the reenrollment bar.  CMS Ex. 2 at 4. 

Petitioner again appealed.  CMS Ex. 9.  

Hearing on the written record.  CMS has filed a pre-hearing brief (CMS Br.) and motion for summary judgment with nine exhibits (CMS Exs. 1-9).  Petitioner filed his own pre-hearing brief and cross-motion for summary judgment (P. Br.) with nine exhibits (P. Exs. 1-9). 

Neither party lists any witnesses.  Petitioner submits a “certification” of counsel asserting that Petitioner appealed his medical license suspension; that the appeal is pending; and that, in the meantime, his license suspension ended.  These assertions are not in dispute.  The certification does not appear to be a witness declaration, as described in my pre-hearing order.  Acknowledgment and Pre-hearing Order at 5 (¶ 8) (February 3, 2025).  Even if it were, CMS has not asked to cross-examine this possible witness.  Id. (¶ 9).  Because there are no witnesses to be examined or cross-examined, this matter may be decided based on the written record without considering whether the standards for summary judgment have been met.  See id. at 4-6 (¶¶ 4(c)(iv), 8, 9, 10); HeartFlow, Inc.,

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DAB No. 2781 at 16-17 (2017) (citing Vandalia Park, DAB No. 1940 at 28-29 (2004), aff’d, Vandalia Park v. Leavitt, 157 F. App’x 858 (6th Cir. 2005)).2  

CMS exhibits.  In the absence of any objections, I admit into evidence CMS Exs. 1-9. 

Petitioner’s exhibits.  Five of Petitioner’s proposed exhibits were not submitted at the reconsideration level: 

• P. Ex. 1:  a March 5, 2024 decision from the New Jersey Office of Administrative Law;
• P. Ex. 2:  an August 13, 2024 final decision and order from the New Jersey State Board of Medical Examiners (although the document is admitted as CMS Ex. 8);
• P. Ex. 3:  a September 9, 2024 New Jersey Board of Medical Examiners Report;
• P. Ex. 8:  the January 15, 2025 reconsideration determination (Petitioner obviously could not have submitted the document at the reconsideration stage because it did not yet exist; however, the document is admitted as CMS Ex. 2);
• P. Ex. 9:  a September 30, 2024 brief in support of Petitioner’s appeal to the New Jersey Appellate Division. 

See CMS Ex. 2 at 2. 

Although CMS has not objected to my admitting the documents, I am required to examine any new documentary evidence to determine whether the provider has good cause for submitting it for the first time at the ALJ level of review.  If I find that good cause does not exist, I must exclude the evidence and may not consider it in reaching a decision.  42 C.F.R. § 498.56(e), see 42 C.F.R. § 405.803(e). 

Petitioner was, or should have been, aware of this requirement.  In its October 17, 2024 notice letter, advising Petitioner of his right to request reconsideration, the contractor warned: 

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[I]f you have additional information that you would like a Hearing Officer to consider during the reconsideration or, if necessary, an Administrative Law Judge (ALJ) to consider during a hearing, you must submit that information with your request for reconsideration.  This is your only opportunity to submit information during the administrative appeals process unless an ALJ allows additional information to be submitted.  

CMS Ex. 6 at 3. 

In my prehearing order, I again advised Petitioner of the good cause requirement: 

Petitioner may not offer new documentary evidence in this case absent a showing of good cause for failing to present the evidence previously to CMS.  If Petitioner offers such evidence, the evidence must be specifically identified as new, and Petitioner’s brief must explain why good cause exists for me to receive it.  I must exclude any new evidence for which a showing of good cause has not been made pursuant to 42 C.F.R. § 498.56(e). 

Acknowledgment and Pre-hearing Order at 5 (¶ 6).  Petitioner neither identified the new evidence nor alleged good cause.  Because Petitioner has not established good cause for failing to submit the documents at the reconsideration stage, I must exclude the evidence and may not consider it in reaching my decision.  Mohammad Nawaz, M.D., and Mohammad Zaim, M.D., PA, DAB No. 2687 at 12-13 (2016) (finding that the ALJ did not abuse his discretion when he did not find good cause to admit documents not offered at reconsideration because the regulation itself provided notice of the requirements to provide all documents on reconsideration), aff’d, Nawaz v. Price, 2017 WL 2798230 (E.D. Tex. 2017). 

For this reason, I decline to admit P. Exs. 1-3 and P. Ex. 9. 

Although I find good cause for Petitioner’s failure to submit P. Ex. 8 – which did not exist at the time – I decline to admit it because the document is already in the record as CMS Ex. 2.  See Michael B. Zafrani, M.D., DAB No. 3075 at 6 (2022).  For the same reason, I decline to admit: 

• P. Ex. 4:  the contractor’s October 17, 2024 notice letter, which is admitted as CMS Ex. 6;
• P. Ex. 5:  Petitioner’s CAP, dated November 18, 2024, which is admitted as CMS Ex. 5;

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• P. Ex. 6:  Petitioner’s December 10, 2024 reconsideration request, which is admitted as CMS Ex. 4; and
• P. Ex. 7:  the contractor’s December 17, 2024 CAP determination, which is admitted as CMS. Ex. 3. 

Issue

The sole issue before me is whether CMS was authorized to revoke Petitioner’s Medicare enrollment. 

Discussion

1. Because Petitioner Slevin’s license to practice medicine was suspended, CMS was authorized to revoke his Medicare enrollment and to impose a re-enrollment bar.3

The Medicare program, Title XVIII of the Social Security Act (Act), is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease.  The program is administered by CMS, acting on behalf of the Secretary of Health and Human Services.  CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes.  Act § 1842 (42 U.S.C. § 1395u).  Contractors pay claims to “providers” (Part A) and “suppliers” (Part B). 

This matter involves Medicare Part B, a voluntary, supplementary medical insurance program, covering physician, home health, outpatient rehabilitation, and other services.  Act § 1832 (42 U.S.C. § 1395k).4   Physicians and other practitioners who furnish healthcare services may participate in the program as “suppliers” of services; however, they must enroll in the program in order to receive Medicare payments.  Act §§ 1861(d), (q), (r) (42 U.S.C. §§ 1395x(d), (q), (r)); 42 C.F.R. §§ 400.202, 424.505.  The statute defines “physician” as “a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which he performs such function or action.”  Act § 1861(r)(1); 42 C.F.R. § 410.20(b)(1) (emphasis added). 

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CMS may revoke a supplier’s enrollment in the program if the supplier no longer meets the Medicare enrollment requirements for a supplier of its type.  42 C.F.R. § 424.535(a)(1).  So long as CMS shows that one of the regulatory bases exists, I must uphold the revocation.  Wassim Younes, M.D. and Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018), citing Patrick Bruggeman, D.P.M., DAB No. 2725 at 15 (2016).  These requirements include complying with federal and state licensing requirements.  42 C.F.R. § 424.516(a)(2); see 42 C.F.R. § 410.20(b) (requiring that a physician be legally authorized to practice by the state in which he performs the functions in order to receive Medicare payments); Meindert Niemeyer, M.D., DAB No. 2865 at 2 (2018). 

Here, the parties agree that the New Jersey Board of Medical Examiners suspended Petitioner’s medical license for six months, effective August 25, 2024.  CMS Br. at 8; P. Br. at 5; CMS Ex. 8 at 5, 23-24, 28 (¶ 2).  This undisputed fact justifies the revocation. 

The effective date of revocation must be August 25, 2024, the date Petitioner’s license was suspended.  42 C.F.R. § 424.535(g)(2)(iii). 

When CMS revokes a supplier’s billing privileges, it imposes a reenrollment bar.  The supplier may not participate in the Medicare program until the end of that reenrollment bar, which must be for a minimum of one year but no more than ten years (except under circumstances that don’t apply here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1).  Here, CMS imposed the mandatory minimum one-year reenrollment bar. 

Petitioner’s challenge to the regulations.  Petitioner argues that CMS’s “application of 42 C.F.R. § 424.535(a)(1) exceeds its scope of authority” under section 1866(c) of the Act (42 U.S.C. § 1395cc(c)).  P. Br. at 9-10.  Petitioner also complains that CMS’s reliance on section 424.535(c)(1)(i) to impose a one-year minimum reenrollment bar “contradicts the enabling Act, which does not provide a minimum time bar” to re-enrollment.  P. Br. at 11 (emphasis omitted). 

The Medicare statute gives the Secretary broad authority to promulgate regulations “as may be necessary to carry out the administration of” the Medicare program.  Act § 1871 (42 U.S.C. § 195hh).  With respect to the enrollment process for providers and suppliers specifically, the statute directs the Secretary to establish, “by regulation a process for the enrollment of providers of services and suppliers” under the Medicare program.  Act § 1866(j)(1)(A) (42 U.S.C. § 1395cc(j)(1)(A)).  In promulgating section 424.535(c), CMS acted well within this statutorily-mandated authority.  

In any event, I am bound by the regulations.  Jeffrey K. McIlroy, MD, Inc., DAB No. 3143 at 20 (2024) (“The Board has long held that ALJs and the Board are bound by the regulations and may not declare them unconstitutional or decline to follow them on that basis.”); Timothy Ekhlassi, M.D., M.P.H., DAB No. 3065 at 9 (2022) (“The Board has

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repeatedly held that it and ALJs are bound by the applicable regulations”); 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground, even a constitutional one.”). 

Nor am I persuaded by Petitioner’s claim that CMS’s actions violate sections 1866(b)(2)(A) and 1866(c)(1) of the Act.  P. Br. at 10.  Those provisions allow the Secretary to terminate a provider agreement if the provider “fails substantially to meet applicable provisions” of the Act.  Act § 1866(b)(2)(B).  Where the Secretary has terminated an agreement with a provider of services, it may not file another agreement “unless the Secretary finds that the reason for the termination or nonrenewal has been removed and that there is reasonable assurance that it will not recur.”  Act § 1866(c)(1).  

I find it highly questionable that these provisions apply to physician suppliers.  Rather, they apply to entities that participate in the Medicare program under Medicare Part A: 

Section 1866 of the Act specifies the terms of provider agreements, the grounds for terminating a provider agreement, the circumstances under which payment for new admissions may be denied, and the circumstances under which payment may be withheld for failure to make timely utilization review. 

42 C.F.R. § 489.1(a). 

“Provider agreement” means “an agreement between CMS and one of the providers specified in § 489.2(b) to provide services to Medicare beneficiaries and to comply with the requirements of section 1866 of the Act.”  42 C.F.R. § 489.3.  Section 489.2(b) lists the entities that may participate in the Medicare Program as providers of services:  hospitals; skilled nursing facilities; home health agencies; clinics, rehabilitation agencies, and public health agencies; comprehensive outpatient rehabilitation facilities; hospices; critical access hospitals; community mental health centers; religious nonmedical health care institutions; opioid treatment programs; and rural emergency hospitals. 

Section 489.1(b) acknowledges that “section 1866 of the Act speaks only to providers and provider agreements.”  Nevertheless, the regulations recognize that, like providers, certain suppliers are subject to surveys.  The regulation adds rules that apply to the approval of supplier entities that are subject to surveys by CMS, state agencies, or accrediting organizations.  42 C.F.R. § 489.1(b) (emphasis added).  This does not include physicians. 

Indeed, the language of section 1866 that Petitioner points to – “substantial” or “non-substantial compliance” – does not apply to physician suppliers.  The term is defined in

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the regulations that govern the survey and certification of skilled nursing facilities and nursing facilities.  42 C.F.R. Subpart E.  “Substantial compliance” means a “level of compliance” with Medicare requirements “such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

In any event, Petitioner is simply wrong when he suggests that the loss of one’s license to practice medicine is not significant.  A physician cannot qualify as a supplier, eligible to participate in the Medicare program, unless “legally authorized to practice medicine” by the state in which he practices.  Act § 1861(r)(1); 42 C.F.R. §§ 410.20(b), 424.516(a)(2).  Failing to meet the statutory definition precludes continuing enrollment. 

Nor does Petitioner prevail because he regained his license before CMS imposed this exclusion.  P. Br. at 16.  The suspension triggers noncompliance with Medicare enrollment requirements, regardless of when the license is reinstated.  Angela R. Styles, M.D., DAB No. 2882 at 6-7; Niemeyer, DAB No. 2865; Akram A. Ismail, M.D., DAB No. 2429 at 8 (2011). 

Finally, I reject Petitioner’s argument that his license revocation is not a “final adjudication that can be relied on to support revocation under section 424.535(a)(1)” because he has appealed it to the New Jersey state court, and the matter is pending before the court.  P. Br. at 15.  Petitioner cites no authority for this assertion.  That an appeal is pending does not change the reality:  the physician was not legally authorized to practice medicine and thus did not meet the statutory definition of “supplier” and did not satisfy the requirements for Medicare enrollment.  Medical Boards sometimes suspend medical licenses on an interim or temporary basis, before providing review.  In Ismail, DAB No. 2429, for example, the physician’s medical license was suspended pending disciplinary proceedings; there had been no final adjudication.  In the Board’s view: 

Even if [the state licensing authority] were to reinstate Dr. Ismail’s authorization to practice medicine at the conclusion of its disciplinary proceedings, Dr. Ismail is . . . unauthorized to practice medicine legally while the suspension is in effect.  Dr. Ismail’s inability to practice medicine for any length of time due to the disciplinary actions imposed against him triggered his noncompliance with the Medicare enrollment requirements and authorized revocation of his billing privileges. 

Ismail, DAB No. 2429 at 8. 

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Conclusion

As discussed above, a physician may participate in the Medicare program as a supplier of services, but to qualify as a supplier, he must be “legally authorized to practice medicine” by the state in which he practices.  Because the New Jersey state licensing authority suspended Petitioner’s license to practice medicine, CMS was authorized to revoke his Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(1).