Robert Harvey, DAB CR6736 (2025)

DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke the Medicare enrollment and billing privileges of Petitioner, Robert Harvey, and to add Petitioner’s name to the CMS Preclusion List. 

I. Background and Procedural History

Petitioner is a physician assistant (PA) who practiced in Louisiana.  CMS Ex. 1 at 11.  

On June 22, 2023, Novitas Solutions (Novitas), a CMS administrative contractor, notified Petitioner that his Medicare billing privileges were revoked, effective July 22, 2023, for the following reasons: 

• 42 C.F.R. § 424.535(a)(12) – Other Program Termination
• By letter dated February 9, 2023, you were informed that you were terminated from the Louisiana Medicaid program.  Your 

Page 2

• appeal rights have been exhausted with respect to this termination.  
• 42 C.F.R. § 424.535(a)(9) – Failure to Report
• The Louisiana State Board of Medical Examiners suspended your physician assistant license, effective January 23, 2023.  You did not notify [CMS] of this adverse legal action within 30 calendar days as required under 42 C.F.R. § 424.516(d)(1).  

appeal rights have been exhausted with respect to this termination. 

CMS Ex. 1 at 27.  Novitas also barred Petitioner’s re-enrollment in the Medicare program for 5 years. CMS Ex. 1 at 29.  

Further, Novitas added Petitioner to the CMS Preclusion List.  CMS Ex. 1 at 27-28.  Being added to the CMS Preclusion list means that “any claims for health care items or services furnished under a Medicare Advantage (MA) benefit submitted by [Petitioner], or on [Petitioner’s] behalf by an entity [Petitioner is] employed by, shall be denied.  Additionally, any pharmacy claims submitted for Medicare Part D drugs that [Petitioner] prescribe[s] shall be rejected or denied subject to the exception at 42 C.F.R. § 423.120(c)(6)(iv).”  CMS Ex. 1 at 28. 

Petitioner requested reconsideration of the revocation and the reenrollment bar.  CMS Ex. 1 at 16-17.  In a reconsidered determination, dated November 1, 2023, a CMS hearing officer upheld the revocation based on 42 C.F.R. § 424.353(a)(9)1 and (a)(12), the reenrollment bar, and the inclusion of Petitioner on the CMS Preclusion List.  CMS Ex. 1 at 1-10.  

On January 2, 2024, Petitioner timely requested a hearing before an administrative law judge (ALJ).  On January 3, 2024, the Civil Remedies Division acknowledged receipt of the hearing request and issued ALJ Keith Sickendick’s Standing Order.2  Consistent with 

Page 3

the Standing Order, CMS filed a prehearing brief/summary judgment motion (CMS Br.) and one proposed exhibit (CMS Ex. 1), and Petitioner filed a prehearing brief/opposition to summary judgment (P. Br.) and one proposed exhibit (P. Ex. 1).  CMS declined to file a reply brief.  DAB E-File Document Number (Doc. No.) 9.  On December 4, 2024, Petitioner filed a Motion for Leave to File the Proposed Exhibit and one proposed exhibit (P. Ex. 2).  DAB E-File Doc. Nos. 11-11_a.  On December 30, 2024, I issued an order, granting Petitioner’s request.  DAB E-File Doc. No. 12.  

II. Admission of Evidence

Neither party objected to any of the proposed exhibits.  Standing Order ¶ G.  Therefore, I admit CMS Exhibit 1 and Petitioner Exhibits 1 and 2 into the record. 

I note that there is good cause to admit Petitioner’s Exhibit 2 into the record because  Petitioner’s Exhibit 2 did not exist when Petitioner filed the reconsideration request.  See 42 C.F.R. § 498.56(e). 

III. Decision on the Written Record

I issue this decision based on the written record.  A hearing is only needed when consideration of testimony is necessary and the hearing is “not in the overall interest of judicial economy if the parties do not identify any proposed witnesses . . . .”.  Civil Remedies Division Procedures (CRDP) § 19(d); Standing Order at 7.  The Standing Order and the CRDP require the parties to submit a list of witnesses they propose to call at an oral hearing.  CRDP § 16(a); Standing Order at 3-4.  Because neither party has identified proposed witnesses, I do not need to hold an in-person hearing and may issue a decision on the written record.  CRDP § 19(d).  Consequently, I deny CMS’s summary judgment motion as moot. 

IV. Issues

1. Whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment under 42 C.F.R. §§ 424.535(a)(9) and/or 424.535(a)(12).
2. Whether CMS had a legitimate basis to include Petitioner on the CMS Preclusion List under 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).

V. Jurisdiction

I have jurisdiction to decide the issues in this case.  42 C.F.R. §§ 498.3(b)(17), (20), 498.5(l)(2), (n)(2); see also 42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 424.545(a), 498.1(g).  

Page 4

VI. Legal Framework

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to establish regulations governing the enrollment of providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j).  For purposes of the Medicare program, physician assistants are considered suppliers.  See 42 U.S.C. § 1395x(d), (s)(2)(K)(i), (aa)(5)(A); 42 C.F.R. §§ 410.74, 498.2 (defining “supplier” to include “physicians or other practitioners such as physician assistant”).  

To receive payment for covered Medicare items or services provided to beneficiaries, a supplier must enroll in the Medicare program.  42 C.F.R. § 424.505.  To enroll, a supplier must complete and file an enrollment application with CMS and meet all the requirements to be a supplier.  42 C.F.R. §§ 424.510, 424.530. 

Once enrolled, CMS may revoke a supplier’s enrollment for any of the reasons stated in 42 C.F.R. § 424.535(a).  When CMS revokes enrollment, it will establish a reenrollment bar from one to ten year(s) in duration.  42 C.F.R. § 424.535(c).  If CMS revokes a supplier’s enrollment and establishes a reenrollment bar, CMS may also add the supplier’s name to the CMS Preclusion List if CMS determines that the basis for revocation is detrimental to the best interests of the Medicare program.  42 C.F.R. §§ 422.2, 423.100. 

A supplier may request a hearing before an ALJ to dispute a revocation or being added to the CMS Preclusion List.  42 C.F.R. §§ 498.3(b)(17), (20), 498.5(l)(2), (n)(2).  However, “the right to review of CMS’s determination by an ALJ serves to determine whether CMS has the authority to revoke [the supplier’s] Medicare billing privileges, not to substitute the ALJ’s discretion about whether to revoke.”  Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (emphasis omitted).  A supplier may request administrative review of an ALJ’s decision concerning revocation or being added to the CMS Preclusion List.  42 C.F.R. §§ 498.5(l)(3), (n)(3), 498.80. 

VII. Findings of Fact

1. Petitioner was issued a license to practice as a PA in Louisiana on August 20, 2002. Ex. 1 at 11.  
2. In 2022, the Louisiana State Board of Medical Examiners (Board) initiated an investigation of Petitioner based on four written complaints. Ex. 1 at 33.
3. The Board’s investigation revealed that Petitioner wrote prescriptions for controlled substances for chronic pain without accessing the Prescription Monitoring Program prior to issuing the prescriptions. CMS Ex. 1 at 33.  

Page 5

3. Additionally, Petitioner administered pain injections to patients but did not record sufficient progress notes.  CMS Ex. 1 at 33-34.  
4. The Board’s investigation also found that Petitioner prescribed controlled substances for chronic pain to at least one patient, wrote prescriptions for off-label use, and failed to appropriately document consent. CMS Ex. 1 at 34.
5. Additionally, the Board’s investigation discovered concerns regarding Petitioner’s documentation of his supervising physicians. CMS Ex. 1. at 34.  Petitioner represented that he had one supervising physician, but his public profile indicated that he had over 20 active supervising physicians.  Id.  Also, several other deficiencies were revealed, including insufficient Clinical Practice Guidelines, lack of clarity as to whether the supervising physician provided in-person supervision as required, uncertainty as to whether medical charts were sufficiently reviewed, delegation of dispensation of medications that are not to be prescribed by PAs, and no Board required performance plan.   at 34-35.
6. On January 23, 2023, Petitioner entered into a Consent Order with the Board, suspending Petitioner’s license to practice in the State of Louisiana for a period of six months, effective from the date of the order. CMS Ex. 1 at 37.  Petitioner waived any right to contest the findings therein.  Id.
7. On February 9, 2023, the Louisiana Department of Health (LDH) revoked Petitioner’s provider agreement with the Louisiana Title XIX Medical Assistance Program (Medicaid) effective January 23, 2023. CMS Ex. 1 at 31-32.  This action was based on Petitioner’s license suspension by the Board on January 23, 2023.  Id.  
8. Petitioner failed to report his PA license suspension to CMS.  
9. On August 28, 2023, the Board issued a Superseding Order reinstating on probation Petitioner’s license to practice as a PA for a period of two years. CMS Ex. 1 at 14.  
10. By letter dated November 15, 2024, LDH informed Petitioner that he was reinstated to participate in Medicaid, effective November 6, 2024. Ex. 2 at 1.

VIII. Conclusions of Law

1. The LDH revoked Petitioner’s provider agreement with its Medicaid program, effective January 23, 2023. There is no evidence that an appeal of the revocation is pending.  Therefore, CMS legitimately revoked Petitioner’s Medicare enrollment under 42 C.F.R. § 424.535(a)(12). 

Page 6

2. As a non-physician practitioner, Petitioner was obligated to report “[a]ny adverse legal action” to Novitas, the relevant servicing CMS contractor, within 30 days under 42 C.F.R. § 424.516(d)(1)(ii). A “final adverse action” includes a “[s]uspension . . . of a license to provide health care by any [s]tate licensing authority.”  42 C.F.R. § 424.502 (definition of final adverse action paragraph (2)); see also Thomas Falls, M.D., DAB No. 3056 at 9-10 (2022) (explaining that “any adverse legal action” includes “all license suspensions”) (citing Akram A. Ismail, M.D., DAB No. 2429 at 10-11 (2011)).  Petitioner did not timely report the suspension of his Louisiana PA license to Novitas within 30 days.  Therefore, CMS legitimately revoked Petitioner’s Medicare enrollment under 42 C.F.R. § 424.535(a)(9).
3. Petitioner’s Medicare enrollment is currently revoked, Petitioner is under a 
   re-enrollment bar, and CMS reasonably determined that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program. Therefore, CMS legitimately added Petitioner’s name to the CMS Preclusion List under 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6). 

IX. Discussion

2. A. CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R § 424.535(a)(12) because Petitioner was revoked from participating in Louisiana’s Medicaid program and Petitioner has no appeal of that revocation pending.

CMS may revoke a supplier’s Medicare enrollment when the following circumstances are met: 

• 
  (i)    The provider or supplier is terminated, revoked or otherwise barred from participation in a State Medicaid program . . . .  
• (ii)    Medicare may not revoke unless and until a provider or supplier has exhausted all applicable appeal rights or the timeframe for filing an appeal has expired without the provider or supplier filing an appeal.  

42 C.F.R. § 424.535(a)(12)(i)-(ii). 

Pursuant to Title XIX of the Act, the Medicaid program provides grants to states for medical assistance for individuals in specific eligible categories.  Act §§ 1900-1903; 42 C.F.R. Part 435.  Petitioner neither disputes that LDH revoked Petitioner, nor that 

Page 7

Petitioner has no appeal of that revocation pending or an unexpired right to file an appeal.  Therefore, CMS legitimately revoked Petitioner’s Medicare enrollment under 42 C.F.R. § 424.535(a)(12). 

Petitioner asserts that he has not been “excluded from the Louisiana Medicaid program and can apply for reenrollment upon satisfaction of licensure requirements.”  P. Br. at 2. Petitioner’s argument is without merit.  The possibility that Petitioner could have reenrolled in Medicaid in the future is irrelevant to whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges.  Setting aside the fact that Petitioner’s argument is speculative, the regulation does not require CMS to consider a supplier’s eligibility for reinstatement in the state Medicaid program in the future and Petitioner cites no legal authority for this proposition.  Furthermore, my authority does not allow me to imply or infer such an exception that would permit CMS to consider this factor that is not included in the regulations.  See Duke Ahn, M.D., DAB No. 3093 at 9 (2023).  ALJ review of CMS’s determination to revoke enrollment is limited to considering whether CMS had a “legal basis” for its decision.  Douglas Bradley, M.D., DAB No. 2663 at 13 (2015) (citing Bussell, DAB No. 2196 at 10).  Therefore, “if CMS establishes that the regulatory elements necessary for revocation are satisfied, . . . then the revocation must be sustained, and . . . the administrative law judge . . . may [not] ‘substitute its discretion for that of CMS in determining whether revocation is appropriate under all circumstances.’”  Bradley, 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)).  As indicated above, a revocation under 42 C.F.R. § 424.535(a)(12) only requires the following two elements to be proven:  1) a state Medicaid program terminated Petitioner’s participation; and 2) Petitioner has either exhausted all appeal rights concerning the termination or the timeframe for filing an appeal of the termination has lapsed without Petitioner filing an appeal.  Duke Ahn, M.D., DAB No. 3093 at 8.  As stated earlier, Petitioner does not dispute that both elements have been met in this case. 

Additionally, Petitioner submitted evidence that shows he was reinstated by LDH to participate in Medicaid, effective November 6, 2024.  P. Ex. 2 at 1.  Petitioner’s reinstatement into the Medicaid program does not negate his prior revocation that resulted in CMS revoking Petitioner’s Medicare billing privileges.  There is no existing exception in the Medicare regulations for individuals who have been reinstated in a state Medicaid program and therefore Petitioner’s reinstatement is irrelevant to whether the regulatory criteria were satisfied in the instant case.  Duke Ahn, M.D., DAB No. 3093 at 9.  

Finally, Petitioner’s appeal rights are limited to his eligibility at the time the Medicare contractor, Novitas, revoked his Medicare privileges.  See 73 Fed. Reg. 36,448, 36,452 (June 27, 2008) (explaining that “appeal rights are limited to provider or supplier eligibility at the time the Medicare contractor made the adverse determination.”).

Page 8

Thus, at the time Novitas issued its initial determination to revoke Petitioner’s Medicare billing privileges, Petitioner was revoked from Louisiana Medicaid, and Petitioner cannot and has not asserted that this revocation was in error. 

Furthermore, the reconsidered determination provided a detailed explanation as to why CMS decided to impose a revocation.  I have reviewed the reasons stated in the reconsidered determination because it is CMS’s final determination before ALJ review.  Brian O’Connor, DAB No 3140 at 16-17 (2024). 

CMS must consider the following factors when determining whether to revoke under (a)(12): 

• (A) The reason(s) for the termination or revocation.  
• (B) Whether the provider or supplier is currently terminated, revoked or otherwise barred from more than one program (for example, more than one State’s Medicaid program) or has been subject to any other sanctions during its participation in other programs.  
• (C) Any other information that CMS deems relevant to its determination.  

42 C.F.R. § 424.535(a)(12)(i)(A)-(C).  As explained above, I cannot review CMS’s discretionary decision to revoke.  I can only review this matter to determine whether CMS exercised its discretion when it revoked Petitioner.  Brian K. Ellefsen, DO, DAB No. 2626 at 8-10 (2015). 

CMS outlined its findings for factors (A)-(C) of 42 C.F.R. § 424.535(a)(12)(i) in the reconsidered determination.  See CMS Ex. 1 at 2-8. 

• For factor (A), the CMS hearing officer stated that Petitioner was terminated from the Louisiana Medicaid program due to his Louisiana PA license being suspended. The hearing officer explained that LDH found that Petitioner’s license suspension violated the “licensing conditions or professional standards” for participation in the Louisiana Medicaid program.  CMS Ex. 1 at 3-4.  The hearing officer considered these facts and found them to be “very serious” and weighed in favor of a revocation of Petitioner’s Medicare enrollment.  CMS Ex. 1 at 4.
• For factor (B), the CMS hearing officer stated that CMS was unaware of any adverse actions by state Medicaid programs besides the one in Louisiana. CMS Ex. 1 at 4.  The CMS hearing officer explained that this factor is one of several 

Page 9

• factors to be considered and is therefore not dispositive in deciding if a revocation is warranted.  Id.  
• For factor (C), CMS found relevant the circumstances that led to Petitioner’s license suspension. Specifically, the hearing officer noted the Board’s finding that Petitioner “wrote prescriptions for controlled substances for chronic pain, but failed to access the Prescription Monitoring Program prior to issuing prescriptions, and he administered pain injections to patients without sufficient progress notes.”  CMS Ex. 1 at 4.  Additionally, CMS noted that “the Board found that [Petitioner] prescribed controlled substances to at least one patient for chronic pain and wrote prescriptions for off-label use without appropriate documentation of consent.”  Id.  Furthermore, the CMS hearing officer shared that “the Board’s investigations also revealed concerns with [Petitioner]’s documentation regarding his supervising physicians.”  Id.  In communications with investigative staff, Petitioner indicated that he only had one supervising physician, when his file and public profile indicated he had over 20.  Id.  The Board also found that the “documentation for one of [Petitioner]’s supervising physicians indicated several deficiencies including: insufficient clinical practice guidelines; lack of clarity as to whether medical charts were properly reviewed; lack of clarity as to whether the supervising physician provided the required in-person supervision; delegation of dispensation of medications that are not prescribable by physician assistants; and no performance plan as required by the Board’s rules.”  Id.  Consequently, CMS found that the conduct that led to Petitioner’s license suspension was “very serious and severe” and this weighed in favor of revocation.  Id.  

Therefore, I conclude that CMS fully considered the regulatory factors as to whether CMS ought to impose revocation.  Based on the foregoing, I conclude that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment based on 42 C.F.R. § 424.535(a)(12). 

1. B. CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R § 424.535(a)(9) because Petitioner failed to report, within 30 days, an adverse legal action to the relevant Medicare contractor.

CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9) because Petitioner failed to report an adverse legal action against him to Novitas within 30 days. 

CMS may revoke a supplier’s Medicare enrollment under 42 C.F.R. § 424.535(a)(9) when a supplier does not comply with the reporting requirements laid out in 42 C.F.R. § 424.516(d).  That regulation requires a nonphysician practitioner to meet the following reporting requirement: 

Page 10

• Physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations must report the following reportable events to their Medicare contractor within the specified timeframes:  
  • (1) Within 30 days—
    • (i) A change of ownership;
    • (ii) Any adverse legal action; or
    • (iii) A change, addition, or deletion of a practice location.  
  • (2) All other changes in enrollment must be reported within 90 days.  

42 C.F.R. § 424.516(d) (emphasis added). 

There is no doubt that Petitioner failed to timely report the suspension of his PA license within the required 30-day timeframe.  In Petitioner’s request for hearing, Petitioner did not dispute that he failed to report the suspension.  RFH.  Petitioner stated that he was not aware that he needed to report this and that his attorneys advised him to inform two other entities about the suspension.  RFH; P. Br. at 2. 

CMS found that Petitioner’s ignorance of the requirement to report adverse legal actions was relevant to their determination.  Specifically, this lack of knowledge regarding reporting requirements contravenes CMS’s expectation that each supplier has a responsibility to be aware of the Medicare program requirements.  CMS Ex. 1. at 5.  Furthermore, CMS relies on suppliers to fully comply with the requirements of the Medicare program.  Id.  I agree with CMS.  Ultimately, Petitioner, as a Medicare supplier, had a duty to familiarize himself with the requirements for participating in the Medicare program.  Brenda Lee Jackson, DAB No. 2903 at 10-11 (2018).  

As with the analysis of 42 C.F.R. § 424.535(a)(12), I conduct a brief analysis below to determine whether CMS exercised its discretion to impose the revocation based on section 424.535(a)(9). 

Once it is clear that a supplier has failed to report an adverse legal action, CMS considers the following factors to determine whether revocation is proper: 

• (i)    Whether the data in question was reported.  

Page 11

• (ii)    If the data was reported, how belatedly.  
• (iii)    The materiality of the data in question.  
• (iv)    Any other information that CMS deems relevant to its determination.  

42 C.F.R. § 424.535(a)(9).  

I conclude that CMS adequately considered all four factors under 42 C.F.R. § 424.535(a)(9).  Because Petitioner did not report the suspension, factors (i) and (ii) are significant.  Regarding factor (iii), CMS considered the lack of reporting to be material to Petitioner’s Medicare enrollment because a failure to report a suspension could result in a supplier maintaining enrollment in the Medicare program even when enrollment requirements are not met.  CMS Ex. 1 at 5.  Regarding factor (iv), CMS found Petitioner’s ignorance of the section 424.516(d) reporting requirements to be relevant. CMS explained that each supplier has a responsibility to be aware of the program requirements and Petitioner’s failure to do so is “of great concern to CMS.”  Id.  

Petitioner does not dispute that he failed to report the suspension to Novitas within 30 days.  The reconsidered determination is sufficient to meet CMS’s obligation to consider the factors outlined in 42 C.F.R. § 424.535(a)(9) and the record supports a finding that Petitioner violated the reporting requirements in 42 C.F.R. § 424.516(d).  Therefore, CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment based on 42 C.F.R. § 424.535(a)(9). 

1. C. CMS had a legitimate basis to include Petitioner on CMS’s Preclusion List.

As discussed below, CMS had a legitimate basis to include Petitioner on the CMS Preclusion List because the necessary elements of preclusion are satisfied.  The CMS Preclusion List includes individuals who: 

• (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).  

Page 12

• (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.  

42 C.F.R. § 422.2; see 42 C.F.R. § 423.100. 

The CMS contractor added Petitioner to the CMS Preclusion List under 42 C.F.R. §§ 422.2 and 422.222 for suppliers.  CMS Ex. 1 at 27.  This action was also taken pursuant to 42 C.F.R. §§ 423.100 and 423.120(c)(6) for individuals who are suppliers, such as physicians and non-physician practitioners.  Pursuant to 42 C.F.R. § 424.535(c), CMS also established a reenrollment bar for a five-year period.  CMS Ex. 1 at 29. 

Petitioner requests a reduction in the length of time he is included on the CMS Prelusion List.  Specifically, Petitioner requests such relief because he is limited in the practice settings in which he can perform his two-year probation.  RFH at 1; P. Br. at 5. 

While I understand the challenges that Petitioner is facing in serving his probationary period, the regulations clearly prescribe the length of time that a practitioner should remain on the CMS Preclusion List.  An individual that is revoked under 42 C.F.R. § 424.535 “will be included on the preclusion list for the same length of time as the individual’s or entity’s reenrollment bar.”  42 C.F.R. § 422.222(5)(i).  Furthermore, Petitioner’s appeal rights are limited solely to his inclusion on the list.  83 Fed. Reg. 16,440, 16,642 (April 16, 2018). 

Additionally, Petitioner’s request to reduce the length of time he is on the CMS Preclusion List sounds in equity, and I am not able to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I cannot, based on principles of equity, overrule the lawful exercise of discretion by CMS or its contractor.  Id.  Petitioner’s arguments are insufficient to warrant a reduction of the time period he is included on the CMS Preclusion List.  Petitioner’s enrollment is currently revoked, and Petitioner is currently under a five-year reenrollment bar.  CMS Ex. 1 at 1-10.  Because I have upheld the 

Page 13

revocation, the reenrollment bar remains in place.  As a result, the first two elements of preclusion are not in dispute.  

There is one remaining element for preclusion that I discuss for completeness:  whether the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  For the reasons stated below, I conclude that CMS reasonably concluded that it is.  

As quoted above, there are three factors that CMS must consider when determining if the basis for revocation is detrimental to the best interests of the Medicare program.  Beginning with the first factor, (A), the CMS hearing officer, in the reconsidered determination, offered two independent bases to satisfy this factor.  First, the CMS hearing officer found that the underlying conduct that led to revocation under 42 C.F.R. § 424.535(a)(12), i.e., Petitioner’s revocation from the Louisiana Medicaid program, amounted to a very serious matter.  CMS Ex. 1 at 6.  Next, the CMS hearing officer found that Petitioner’s conduct that led to the suspension of his PA license, which ultimately led to the revocation of his Medicaid provider agreement, was extremely serious.  CMS Ex. 1 at 6.  CMS found that because Petitioner’s license was suspended due to improperly prescribing controlled substances to patients, failing to properly document patient encounters, and failing to properly document his physician supervision relationships, Petitioner’s ability to provide the necessary quality of care and ensure the safety of Medicare beneficiaries was uncertain.  Id.  

Regarding factor (B), the CMS hearing officer found that the underlying conduct leading to revocation under both 42 C.F.R. § 424.535(a)(9) and (a)(12) could affect the integrity of the Medicare program.  CMS Ex. 1 at 7.  First, CMS found the Petitioner’s Medicaid revocation calls into question his ability to be a reliable Medicare participant.  Id.; see also 84 Fed. Reg. 47,794, 47,821 (September 10, 2019) (explaining that “a relevant program or license suspension warrants additional scrutiny, for the conduct behind the suspension could raise questions concerning the prospective provider’s or supplier’s ability to be a dependable Medicare participant.”)  Furthermore, CMS found that Petitioner’s “unsafe and precarious conduct” put Medicare Trust Funds and beneficiaries at risk.  CMS Ex. 1 at 7.  In sum, CMS found that Petitioner’s conduct that resulted in his revocation was detrimental to the best interest of the Medicare program.  Id.  

Regarding factor (C), CMS found the Petitioner’s “improper and unprofessional conduct in the practice of medicine” reflects poorly on the profession and “could significantly impact the public’s confidence in the Medicare program and its partners.”  CMS Ex. 1 at 5.  CMS, which is charged with maintaining high standards for the quality of services provided to beneficiaries, ultimately found that Petitioner’s conduct was a threat the to the public’s confidence in the Medicare program and, therefore, is detrimental to the best interests of the program.  Id.  

Page 14

Based on the reconsidered determination, I conclude that the CMS hearing officer offered a reasonable explanation for the conclusion that the basis of Petitioner’s revocation is detrimental to the best interests of the Medicare program, and therefore, Petitioner was properly added to the CMS Preclusion List. 

1. D. I do not have the authority to review the length of the re-enrollment bar.

Whenever CMS has properly imposed a revocation on a supplier, CMS must also determine how long the supplier will be barred from seeking reenrollment as a supplier.  The regulations at 42 C.F.R. § 424.535(c)(1) provide that the re-enrollment bar “[b]egins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 10 years . . . depending on the severity of the basis for revocation.”  However, the length of the re-enrollment bar is not subject to ALJ review.  Vijendra Dave, M.D., DAB No. 2672 at 9 (2016).  Therefore, I cannot review whether a five-year reenrollment bar is appropriate in this case. 

X. Conclusion

I affirm CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges and to include Petitioner on the CMS Preclusion List.