Robert L. Bertram, D.O., DAB CR6694 (2025)

DECISION

Petitioner, Robert L. Bertram, D.O., is a Kentucky physician who was once enrolled in the Medicare program as a supplier.  On March 31, 2017, he was convicted of 17 felony counts of Health Care Fraud – Aiding and Abetting in violation of 18 U.S.C. § 1347 and 18 U.S.C. § 2 in the United States District Court for the Eastern District of Kentucky – Central Division at Frankfort.  He did not report those convictions to the Centers for Medicare & Medicaid Services (CMS).  Based on his convictions and his failure to report, CMS revoked his Medicare enrollment and billing privileges, followed by a three-year reenrollment bar.

CMS subsequently added Petitioner’s name to the CMS Preclusion List and determined that he would remain on the list for ten years.  Petitioner appeals that determination.

I find that CMS is authorized to include Petitioner on the CMS Preclusion List because, within the preceding ten years, he was convicted of a felony offense that CMS reasonably determined is detrimental to the best interests of the Medicare program.  He remains on the Preclusion List for ten years.

Page 2

Background

By letter dated May 11, 2022, CMS advised Petitioner that he was being added to the CMS Preclusion List.  As the letter explains, CMS acted pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6), because, within the previous ten years, Petitioner was convicted of a felony offense that CMS deems detrimental to the best interests of the Medicare program.  CMS Ex. 7.

Petitioner requested reconsideration.  CMS Ex. 8.  In a reconsidered determination dated October 5, 2022, a CMS hearing officer upheld the initial determination.  CMS Ex. 9.  Petitioner appealed that initial determination, and the matter was docketed before an administrative law judge (ALJ).  The case was remanded back to CMS upon agreement of the parties.  CMS Br. at 3.

In a revised reconsidered determination, dated May 2, 2023, a CMS hearing officer upheld the initial determination.  CMS Ex. 1.  The hearing officer agreed that including Petitioner on the CMS Preclusion List was proper because, within the previous ten years, he was convicted of a felony offense detrimental to the Medicare program.  CMS Ex. 1 at 3-5.

Petitioner timely appealed.

Hearing on the written record.  CMS moved for summary judgment and timely filed its prehearing exchange.  Petitioner requested an extension of time to “file his Response to CMS’s Motion for Summary Judgment and Pre-Hearing Exchange . . . [.]”  The extension request was granted on October 5, 2023.  However, Petitioner did not file a response to the motion for summary judgment or a prehearing exchange.  Petitioner did file a motion to remand (P. Mot.) on October 13, 2023.

The ALJ’s standing order instructs the parties to list any proposed witnesses and to submit their written direct testimony.  Standing Order at 11, 12 (July 28, 2023).  CMS did not list any witnesses.  Petitioner did not file a prehearing exchange pursuant to the standing order and his extension request.  Standing Order at 5, 6 (July 28, 2023).  An in-person hearing would therefore serve no purpose, and I may decide this case based on the written record.

Petitioner’s failure to timely file a prehearing exchange does not preclude me from issuing a decision based on the written record.  Anil Hanuman, D.O., DAB No. 3080 at 12 (2022).

Exhibits.  CMS submits its motion and brief (CMS Br.) with 11 exhibits (CMS Exs. 1-11).  Petitioner submitted eight exhibits with his hearing request and two exhibits with his motion to remand (P. Exs. 1-10).

Page 3

In the absence of any objections, I admit into evidence CMS Exs. 1-11 and P. Ex. 1-10.

Petitioner’s Motion to Remand.  On October 13, 2023, Petitioner filed a motion to remand this case to CMS for consideration of new issues and determination, or, in the alternative, request for hearing on new issues.  P. Mot.  Petitioner argues that remand is warranted because new issues arose after the CMS hearing officer issued the revised reconsidered determination on May 2, 2023.  Id. at 1.  Petitioner makes arguments in equity more thoroughly discussed below but essentially argues that the removal of Petitioner from the Office of the Inspector General (OIG) exclusion list and the denial of his application for Medicare enrollment and billing privileges should result in a remand.  Id. at 1-4.

Petitioner’s motion to remand or for a hearing on new issues is denied.  Petitioner raised similar arguments before the CMS hearing officer, and they were considered and denied.  Petitioner’s removal from the exclusion list and the status of his billing privileges are separate actions from his placement on the preclusion list.  As noted above, I find that CMS is authorized to include Petitioner on the CMS Preclusion List because, within the preceding ten years, he was convicted of a felony offense that CMS reasonably determined is detrimental to the best interests of the Medicare program.

Discussion

1. CMS acted within its authority when it added Petitioner to its Preclusion List because, within the preceding ten years, he was convicted of felonies that CMS reasonably determined are detrimental to the best interests of the Medicare program.1

The Medicare Program.  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.  Medicare is divided into four parts:

• Part A is the hospital insurance program.  It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, home health, outpatient rehabilitation, and other services.  Act § 1832 (42 U.S.C. § 1395k);

Page 4

• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health maintenance organizations, that receive a fixed payment for each enrollee.  Act § 1851 (42 U.S.C. § 1395w-21); and
• Part D is the voluntary prescription drug benefit program.  Act § 1860D (42 U.S.C. § 1395w-101).

The Medicare 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).

Physicians, such as Petitioner, may participate in the program as “suppliers” of services.  Act § 1861(d), (q), (r) (42 U.S.C. § 1395x(d), (q), (r)); 42 C.F.R. § 400.202.

Revocation.  Among other bases, CMS may revoke a physician supplier’s Medicare billing privileges if:

• within the preceding ten years, he was convicted of a felony offense that CMS “has determined to be detrimental to the best interests of the program and its beneficiaries.”  Offenses for which billing privileges may be terminated include, but are not limited to, financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and similar crimes for which the individual was convicted, including adjudicated pretrial diversions.  42 C.F.R. § 424.535(a)(3)(ii)(B).
• he fails to report, within 30 days, any adverse legal action.  42 C.F.R. § 424.535(a)(9); see 42 C.F.R. § 424.516(d)(1)(ii).

See also Act §§ 1842 (h)(8), 1861(r), and 1866(b)(2)(D).

Here, CMS revoked Petitioner’s Medicare billing privileges and imposed a three-year reenrollment bar.  CMS Exs. 1, 5.

The Preclusion List.  Effective January 1, 2019, CMS implemented a “Preclusion List” as part of its effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees,” particularly with respect to prescription drug abuse.  Medicare will not reimburse individuals and entities on the Preclusion List for items and services they supply (Part C) nor for prescriptions they may write (Part D).  Pursuant to 42 C.F.R.

Page 5

§ 422.2 (Part C) and 42 C.F.R. § 423.100 (Part D), CMS’s “Preclusion List” includes individuals and entities that:

(3) . . . regardless of whether they are or were enrolled in Medicare, [have] 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, 423.100 (defining “Preclusion List”).

An individual included on the Preclusion List because of a felony conviction remains on that list for ten years, beginning on the date of the conviction, unless CMS determines that a shorter length of time is warranted.  42 C.F.R. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).

Petitioner’s offense.  In November 2015, a Grand Jury empaneled by the United States District Court for the Eastern District of Kentucky (District Court) indicted Dr. Bertram, along with several other individuals, on 99 counts of violating 18 U.S.C. § 1347 due to aiding and abetting the submission of materially false and fraudulent health insurance claims for services that were not medically indicated or necessary.  CMS Ex. 2 at 8-12.  Dr. Bertram pleaded not guilty to the charges.  CMS Ex. 4 at 1.  Following a trial, on March 31, 2017, a jury found Dr. Bertram guilty on 17 counts in the indictment, all of which involved claims submitted to Anthem BlueCross BlueShield.  CMS Exs. 3, 4, 8.

On December 19, 2017, the District Court issued a Judgment in a Criminal Case in which the District Court stated that Dr. Bertram is "adjudicated guilty" of 17 counts; sentenced to 21 months of incarceration; and ordered to pay $3,378.37 in restitution to Anthem Health Plans of Kentucky, Inc.  CMS Ex. 4.

Effective May 20, 2018, the Inspector General of the Department of Health and Human Services (IG) excluded Dr. Bertram from participation in all federal health care programs under section 1128(a)(3) of the Social Security Act (42 U.S.C. § 1320a-7(a)(3)).  CMS Ex. 11.

As discussed below, CMS was authorized to place Petitioner on the Preclusion List based solely on his felonious conduct.

Page 6

CMS’s authority.  So long as CMS establishes a basis for placing Petitioner on the preclusion list, I must uphold its doing so.  See Wendell Foo, M.D., DAB No 2904 at 25 (2018); Wassim Younes, M.D., DAB No. 2861 at 8 (2018) (citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016)).

Here, Petitioner was placed on the Preclusion List because he was convicted of a felony under federal law within the previous 10 years that CMS deemed detrimental to the best interests of the Medicare program.  In placing Petitioner on the Preclusion List, CMS acted within its authority.  CMS may rightfully consider that Petitioner’s crimes were serious and that his conviction for healthcare fraud calls into question his judgment, trustworthiness, and integrity.  CMS Ex. 1 at 5-6.  CMS also considered that the offenses lasted nearly a year and that Petitioner was convicted of a felony specifically related to healthcare.  CMS Ex. 1 at 6-7.

CMS justifiably finds detrimental to the Medicare program a wide variety of felonies involving lying or other fraudulent conduct, including those that do not involve crimes related to the practice of medicine or medical insurance programs.  See, e.g., Eva Orticio Villamor-Goubeaux, DAB No. 2997 (2020) (interference with child custody); Lilia Gorovits, M.D., P.C., DAB No. 2985 (2020) (obstructing criminal investigations); Pa. Physicians, P.C., DAB No. 2980 (2019) (personal income tax fraud); Michael Scott Edwards, OD, DAB No. 2975 (2019) (obstructing public justice by failing to disclose how he distributed campaign contributions).

CMS thus had a valid basis for finding Petitioner’s crimes detrimental to the Medicare program, and I am not authorized to overturn a valid agency action.

Petitioner’s arguments.  Petitioner argues that CMS did not adequately consider shortening the length of time he was placed on the preclusion list; more specifically, Petitioner argues that CMS should have given weight to the effect his placement on the preclusion list has on the community he serves.  Petitioner’s request for hearing (Req. Hr’g) at 1; P. Mot. at 3.  However, the CMS hearing officer reviewed the arguments related to his care in the community and did not find an access to care issue.  CMS Ex. 1 at 7.  The hearing officer determined that there were other similar providers in the area.  Id.

Petitioner next notes that the Inspector General removed him from the exclusion list on June 8, 2023, months after the reconsidered determination was issued.  Req. Hr’g at 2; P. Ex. 7.  Petitioner asserts that this removal from the exclusion list should shorten the time of his placement on the preclusion list to mirror the exclusion.  Req. Hr’g at 2.  He also argues that the hearing officer did not have the benefit of knowing that the IG would remove him from the exclusion list and that it may have changed the outcome of the reconsidered determination.  Id.  Despite his removal from the exclusion list coming a few months after the issuance of the reconsideration determination, Petitioner raised

Page 7

similar arguments to the CMS hearing officer and they were addressed.  CMS. Ex. 1 at 4, 8.  Under 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6), CMS has discretion to place a supplier on the preclusion list for 10 years from the date of a felony conviction deemed detrimental to the Medicare program and that determination is separate from any action taken by the OIG.  See Anthony Del Piano, M.D., DAB No. 3096 at 22 (2023).

Lastly, Petitioner argues that his revocation for Medicare billing privileges began on January 4, 2018, and that his 3-year reenrollment bar expired in 2021.  Petitioner argues that he is able to reapply and that if he regains Medicare billing privileges, he will not be able to serve those who have Part C and Part D coverage.  Req. Hr’g at 2-3.  Petitioner argues that this will create confusion and that he will not be able to make a living.  Id.  Petitioner’s arguments concerning that incongruities between his placement on the exclusion list and the preclusion list and his revocation status are essentially an appeal to equity that I cannot consider.  Del Piano, DAB 3096 at 10.  Further, as discussed below, to the extent Petitioner is requesting a shortening of the length of his preclusion, I do not have authority to do so.

2. I have no authority to review the length of time Petitioner remains on the Preclusion List.

As noted above, by regulation, an individual included on the Preclusion List remains on that list for ten years from the date of his conviction, unless CMS determines that a shorter length of time is warranted.  42 C.F.R. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).

Here, CMS placed Petitioner on the Preclusion List for the standard ten years.2  Petitioner complains that this length of time is not justified.  I have no authority to review that determination.  My authority is limited to review of initial determinations, which are listed in 42 C.F.R. § 498.3(b).  Among those reviewable determinations are whether “[a]n individual or entity is to be included on the [P]reclusion [L]ist as defined in [section] 422.2 or [section] 423.100.”  42 C.F.R. § 498.3(b)(20).  The regulations confer no such right to appeal CMS’s determination concerning the length of time the individual or entity remains on the preclusion list.  For the same reasons that administrative law judges may not review CMS’s determination as to the length of a reenrollment bar, I may not review its determination as to how long an individual or entity remains on the Preclusion List.  See Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord, William Garner, M.D., DAB No. 3026 at 16 (2020), Lilia Gorovits, DAB No. 2985 at 15-16.

Page 8

Conclusion

CMS is authorized to include Petitioner on the preclusion list because within the preceding ten years, he was convicted of a felony offense that CMS reasonably determined is detrimental to the best interests of the Medicare program.

I have no authority to review CMS’s determination that Petitioner will remain on the Preclusion List for ten years.