Slawomir Jan Puszkarski, DAB CR6715 (2025)

DECISION

Petitioner, Slawomir Jan Puszkarski, is a physician who participated in the Medicare program as a supplier of services.  On May 26, 2015, he pled guilty to and was convicted of a felony offense for Attempt to Procure, Contrary to Law, the Naturalization of any Person.  Based on his felony conviction, the Medicare contractor, National Government Services (NGS), acting on behalf of CMS, revoked his Medicare billing privileges, imposed a ten-year reenrollment bar, and added his name to the Medicare preclusion list.

Petitioner now appeals.

I affirm CMS’s determination.  I find that CMS was authorized to revoke Petitioner’s Medicare privileges and to add his name to the Medicare preclusion list because within the ten years preceding this action, Petitioner was convicted of a felony that CMS reasonably determined is detrimental to the best interests of the Medicare program and its beneficiaries.

I have no authority to review the length of the reenrollment bar.

Statutory and Regulatory Background

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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, post-hospitalization home health services, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, outpatient, home health, and other services.  Act § 1832 (42 U.S.C. § 1395k);
• 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-1 (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 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.

Section 424.535(a) authorizes CMS to revoke a supplier’s Medicare enrollment and billing privileges on one or more of the grounds set forth under that subsection.  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 Brueggeman, D.P.M., DAB No. 2725 at 15 (2016)).

Procedural Background

Conviction, Exclusion and Re-enrollment Bar.  On May 26, 2015, Petitioner pled guilty to a felony offense for Attempt to Procure, Contrary to Law, the Naturalization of any Person in violation of 18 U.S.C. § 1425(a), (b).  CMS Exs. 4, 5.  A judgment of conviction was entered on October 7, 2015.  CMS Ex. 5 at 1.

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By letter dated July 29, 2016, Petitioner was notified that he was excluded from participating in federal healthcare programs.  CMS Ex. 7.  On June 10, 2019, the Office of Inspector General for the United States Department of Health and Human Services (HHS-OIG) notified Petitioner that his eligibility to participate in Medicare was reinstated.  CMS Ex. 8.

On January 15, 2020, Petitioner submitted an application to reactive Medicare billing privileges via the Provider Enrollment, Chain and Ownership System (PECOS).  CMS Ex. 11.  On March 25, 2020, Petitioner’s enrollment application was denied.  CMS Ex. 12.  The application was denied because of Petitioner’s May 26, 2015 felony conviction.  Id.

On May 20, 2020, Petitioner submitted a subsequent PECOS application to reactivate his Medicare enrollment.  CMS Ex. 9.  The application was approved on June 1, 2020.  CMS Ex. 10.

The contractor’s determination.  Here, by letter dated August 18, 2023, the Medicare contractor, NGS, advised Petitioner that his Medicare privileges were revoked, effective May 26, 2015.  The letter explained that the contractor revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(3), because Petitioner was convicted of a felony, as defined in 42 C.F.R. § 1001.2 (Attempt to Procure, Contrary to Law, the Naturalization of any Person, in violation of 18 U.S.C. § 1425(a), (b)).  CMS Ex. 14 at 1.  The contractor imposed a ten-year reenrollment bar (until May 26, 2025), pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 14 at 2.

The letter also advised Petitioner that the contractor added him to CMS’s preclusion list, as authorized by 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  It explained that, if Petitioner requested reconsideration, this action would become effective on the date the reconsidered determination was issued.  CMS Ex. 14 at 1-2.

The reconsideration.  Petitioner requested reconsideration.  In a reconsidered determination, dated March 8, 2023, a CMS hearing officer upheld the revocation under section 424.535(a)(3).  Specifically, she found that:

• Petitioner acted fraudulently and dishonestly in his capacity as a licensed physician; and
• Based on the facts and circumstances of the offense, Petitioner’s felony offense is detrimental to the best interests of the Medicare program.

CMS Ex. 17 at 5.

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The hearing officer also upheld the determination to include Petitioner’s name on CMS’s preclusion list.  CMS Ex. 17 at 5-7.

Summary judgment/decision based on the written record.  Petitioner timely appealed and CMS filed a motion for summary judgment.

Although CMS filed a motion for summary judgment, this matter may be decided based on the written record, without considering whether the standards for summary judgment have been met.  In the pre-hearing order, Administrative Law Judge Jacinta Alves1 directed the parties to inform her if they consented to a decision on the written record.  Acknowledgment and Pre-hearing Order at 4-5 (March 18, 2024).  In his prehearing brief and objection to CMS’s motion for summary judgment, Petitioner requested denial of the motion for summary judgment and decision on the written record.  CMS also agreed to a decision on the record in its Notice of No Reply.2  Further, neither party proposed any witnesses for oral testimony.

Exhibits.  CMS submits its motion for summary judgment and brief (CMS Br.) with seventeen exhibits (CMS Exs. 1-17).  Petitioner submits his response to the motion for summary judgment and brief (P. Br.) with five exhibits (P. Exs. 1-5).

In the absence of any objections, I admit into evidence CMS Exs. 1-17.  CMS objects to Petitioner’s exhibits 1, 3, 4 and 5 as duplicative of its own filings.  I sustain CMS’s objections and decline to admit the duplicative exhibits.  I admit Petitioner’s exhibit 2 into evidence.

Discussion

1. Because Petitioner was, within ten years preceding the revocation, convicted of a felony that CMS reasonably finds detrimental to the best interests of the Medicare program, CMS properly revoked his Medicare enrollment.  42 C.F.R. § 424.535(a)(3).3

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Revocation of enrollment.  CMS may revoke a supplier’s Medicare enrollment and billing privileges if, within the preceding ten years, the supplier or any owner or managing employee was convicted of a “felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.535(a)(3); see also Social Security Act (Act) §§ 1842(h)(8) and 1866(b)(2)(D).

Petitioner’s conviction.  On October 7, 2014, Petitioner was indicted on three counts of Attempt to Procure, Contrary to Law, the Naturalization of Any Person, in violation of 18 U.S.C. §§ 371 and 1425(a), (b).  CMS Exs. 1, 2.

Petitioner pled guilty on May 26, 2015, to a felony offense for Attempt to Procure, Contrary to Law, the Naturalization of any Person in violation of 18 U.S.C. § 1425(a), (b).  CMS Ex. 4, 5.  As part of his plea, he admitted that he served as the primary medical professional who falsely certified on a federal form that an individual had a disability or impairment without having examined the individual and knowing that the individual did not suffer from said disability or impairment.  CMS Ex. 3.

On October 7, 2015, the U.S. District Court for the Northern District of Illinois accepted Petitioner’s guilty plea and entered judgment against him.  CMS Ex. 5.  The court sentenced Petitioner to two years of probation.  The court also ordered him to pay a fine of $10,000.  CMS Exs. 1, 5.

Legal basis for revocation.  The Departmental Appeals Board (Board) has consistently held that an administrative law judge’s review of CMS’s determination to revoke a supplier’s Medicare enrollment is limited to deciding whether CMS has established one or more of the grounds specified in section 424.535(a).  William Garner, M.D., DAB No. 3026 at 16 (2020); Norman Johnson, M.D., DAB No. 2779 at 11 (2017), and cases cited therein.  Although CMS itself has the discretion to consider “unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” I do not.  I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  Norman Johnson at 11, citing Care Pro Home Health, Inc., DAB No. 2723 at 9 n.8 (2016); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d., Ahmed v. Sebelius, 710 F.Supp.2d 167 (D. Mass. 2010).

Here, CMS plainly had the authority to revoke Petitioner’s Medicare enrollment under section 424.535(a)(3).  Petitioner was convicted of a crime that was a felony and involved fraud.  I consider this crime similar to those that are specifically identified in the regulation as “detrimental to the best interests of the Medicare program and its beneficiaries.”

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In his hearing request and brief, Petitioner does not contest the underlying conviction nor does he deny that he was excluded from all federal healthcare programs by the HHS-OIG.  P. Br. at 1-2.  However, Petitioner argues instead that after the exclusion was lifted and his enrollment application was approved by NGS, his enrollment should not have been revoked and he should not have been placed on the preclusion list.  P. Br. at 2-3.  Petitioner further argues that since his original application was denied but his subsequent application was approved, CMS cannot argue that the approval was a mistake.  P. Br. at 12.  Lastly, Petitioner argues that CMS can no longer argue that his conviction is detrimental to the Medicare Program or its beneficiaries because the HHS-OIG approved reinstatement of his eligibility to participate in federal health care programs.  Id.  However, Petitioner cites no authority to support his contentions.

CMS may revoke a supplier’s enrollment at any time if the regulatory elements are satisfied.  The Board has held that:

Still further, we reject Petitioner’s contention that CMS’s prior approval of his Medicare enrollment applications with knowledge of his felony conviction precludes CMS from later exercising its discretion to revoke his billing privileges.  As the Board previously held, CMS’s approval of a supplier’s Medicare enrollment application, which discloses a felony conviction, does not preclude CMS from subsequently revoking the supplier’s billing privileges based on that same conviction.  “[T]he Medicare statute and regulations do not require CMS [to issue a revocation] within a specified time frame after discovering information about a Medicare enrollee’s conviction.  CMS may revoke at any time . . . if the regulatory elements in section 424.535(a)(3) are satisfied.”  The only time limit mandated by the application regulation is that the conviction occur “within the preceding 10 years.”

Blair Allen Nelson, M.D., DAB No. 3024 at 12 (2020) (Emphasis supplied) (internal citations omitted).  As a result, CMS was not prohibited from revoking Petitioner’s enrollment because it had previously approved his application.

Further, I do not agree that the actions taken by the HHS-OIG determine whether or not CMS can revoke a supplier’s enrollment.  Specifically, 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).

To the extent Petitioner is arguing that revocation of his Medicare enrollment and billing privileges is inequitable under the circumstances presented, CMS’s discretionary act to revoke a provider or supplier is not subject to review based on equity or mitigating circumstances.  Letantia Bussell, M.D., DAB No. 2196 at 13 (2008); see also US

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Ultrasound, DAB No. 2302 at 8 (2010).  Rather, “the right to review of CMS’s determination by an [administrative law judge] serves to determine whether CMS had the authority to revoke [the provider’s or supplier’s] Medicare billing privileges, not to substitute the [administrative law judge’s] discretion about whether to revoke.”  Bussell, DAB No. 2196 at 13.  Once CMS establishes a legal basis on which to proceed with a revocation, then the CMS determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  See id. at 10; see also Ahmed, DAB No. 2261 at 19 (if CMS establishes the regulatory elements necessary for revocation, an administrative law judge may not substitute his or her “discretion for that of CMS in determining whether revocation is appropriate under all the circumstances”).

2.  I have no authority to review CMS’s determination to impose a ten-year reenrollment bar.

When a supplier’s billing privileges are revoked, he may not participate in the Medicare program until the end of his 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 a ten-year reenrollment bar.

Because the length of a reenrollment bar is not listed as an appealable determination, I have no authority to review it.  42 C.F.R. § 498.3(b); Linda Silva, P.A., DAB No. 2966 at 11 (2019); Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord, William Garner, MD, DAB No. 3026 at 16 (2020), Lilia Gorovits, M.D., P.C., DAB No. 2985 at 15-16 (2020).

3. CMS acted within its authority when it added Petitioner to its preclusion list because his Medicare privileges were revoked for conduct detrimental to the best interests of the Medicare program, and he is under a reenrollment bar.  I have no authority to review CMS’s determination as to the length of time he remains on the preclusion list.

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.4  Pursuant to 42 C.F.R. § 422.2 (Part

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

• are currently revoked from Medicare enrollment, are under an active reenrollment bar, and CMS determines that the underlying conduct leading to the revocation is detrimental to the best interests of the Medicare program; or
• have engaged in behavior for which CMS could have revoked the prescriber, individual, or entity had it been enrolled in the Medicare program, and CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program.

Review of Petitioner’s inclusion on the preclusion list.  My review here is limited to whether CMS had the authority to include Petitioner on the preclusion list.  42 C.F.R. § 498.3(b)(20); see 83 Fed. Reg. 16,642-16,643 (Apr. 16, 2018) (explaining that appeals are limited to the individual’s inclusion on the preclusion list).

I have discussed in some detail the elements of Petitioner’s crime.  He was convicted of a crime that is detrimental to the best interests of the Medicare program and its beneficiaries.  CMS was therefore authorized to revoke his Medicare enrollment and billing privileges and to impose a reenrollment bar.  42 C.F.R. §§ 424.535(a)(3); 424.535(c).  Because his enrollment was revoked for a felony conviction deemed detrimental to the best interests of the Medicare program and its beneficiaries and because he is under a reenrollment bar, CMS is authorized to add him to the Medicare preclusion list.  42 C.F.R. §§ 422.2; 423.100.

Because CMS has established a basis for placing Petitioner on the preclusion list, I must uphold its determination to do so.  See Wendell Foo, M.D., DAB No. 2904 at 3 (2018); Wassim Younes, M.D. and Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018), citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016).  Having determined that CMS properly added Petitioner to the preclusion list, I have no authority to review CMS’s determination as to how long he remains there.  See 42 C.F.R. § 498.3(b); Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016) (limiting ALJ review to the determinations in section 498.3(b)).

Conclusion

CMS justifiably determined that Petitioner was convicted of a felony detrimental to the best interests of the Medicare program and its beneficiaries; it may therefore revoke his Medicare enrollment and billing privileges and impose a reenrollment bar.

CMS was also authorized to include Petitioner on the preclusion list because his Medicare enrollment was revoked for conduct detrimental to the best interests of the

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Medicare program, and because he is under a reenrollment bar.  I have no authority to review the lengths of the reenrollment bar nor his time on the preclusion list.

For these reasons, I affirm CMS’s determinations.