George R. Vito, D.P.M., et al., DAB CR6749 (2025)

DECISION

The Centers for Medicare & Medicaid Services (CMS) revoked the Medicare enrollment and billing privileges of Petitioners, George R. Vito, D.P.M, the Foot and Ankle Institute of North Carolina, and the Ankle and Foot Center of Western New York, pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), and (a)(9).  Subsequently, CMS placed Petitioners on its preclusion list.  See 42 C.F.R. §§ 422.2 and 423.100.  Petitioners challenge both the revocation of enrollment and billing privileges, and the placement on CMS’s preclusion list.  For the reasons discussed below, I affirm CMS’s revocation of Petitioners’ Medicare enrollment and billing privileges.  There is a basis for listing Petitioners on CMS’s preclusion list. 

I. Procedural History

Petitioner, George R. Vito, D.P.M., is a doctor of podiatric medicine licensed to practice in New York, North Carolina, Pennsylvania and Georgia.  Dr. Vito is the sole owner of the Foot and Ankle Institute of North Carolina and the Ankle and Foot Center of Western New York.  On February 10, 2014, Dr. Vito pleaded guilty to one count of felony

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bankruptcy fraud under 18 U.S.C. § 152(2).  CMS Ex. 1 at 4-16.  Pursuant to the guilty plea, Dr. Vito admitted to knowingly and fraudulently making a false oath after a Chapter 7 bankruptcy.  Id. at 14.  Dr. Vito served four months in prison followed by eight months in a halfway house.  CMS Ex. 14. 

On September 18, 2014, Dr. Vito and the North Carolina Board of Podiatry Examiners entered into a Consent Order, under which his podiatry license in North Carolina was suspended for the duration of his sentence.  CMS Ex. 3. 

CMS, through its contractors, notified Petitioners that it had revoked their Medicare enrollment and billing privileges.  CMS Ex. 13.

• On June 21, 2023, Palmetto GBA, LLC (Palmetto) informed Dr. Vito that his Georgia Medicare privileges were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), because of his February 10, 2014 felony conviction.  Palmetto informed Petitioner that he was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 4-5.
• On June 15, 2023, Novitas Solutions, Inc. (Novitas) informed Dr. Vito that his Pennsylvania Medicare privileges were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), because of his February 10, 2014 felony conviction.  Novitas informed Petitioner that he was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 12-13.
• On June 15, 2023, National Government Services, Inc. (NGS) informed Dr. Vito that his New York Medicare privileges were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), (a)(9), because of his February 10, 2014 felony conviction.  NGS informed Petitioner that he was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 20-21.
• On June 15, 2023, Novitas informed Dr. Vito that the DMEPOS Medicare privileges of the Ankle and Foot Center of Western New York were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), because of his February 10, 2014 felony conviction.  Novitas informed Petitioner that it was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 29-30.
• On June 21, 2023, Palmetto informed Dr. Vito that his North Carolina Medicare privileges were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), (a)(9), because of his February 10, 2014 felony conviction.  Palmetto informed Petitioner that he was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 38.
• On June 21, 2023, Novitas informed Dr. Vito that the DMEPOS Medicare privileges of the Foot and Ankle Institute of North Carolina were being revoked

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pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), (a)(9), because of his February 10, 2014 felony conviction.  Novitas informed Petitioner that it was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 46-47.

• On June 21, 2023, Palmetto informed Dr. Vito that the Medicare privileges of the Foot and Ankle Institute of North Carolina were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), (a)(9), because of his February 10, 2014 felony conviction.  Palmetto informed Petitioner that it was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 55-56. 

In each of the letters above, Petitioners were informed that they would be barred from reenrolling in the Medicare program for ten years, effective 30 days from the date postmarked on the letter.  CMS Ex. 13 at 7, 15, 23, 29, 39, 46, 57.  Petitioners timely filed a request for reconsideration.  CMS Ex. 14.  On December 21, 2023, CMS issued reconsidered determinations upholding the revocations, reenrollment bars, and inclusion on the CMS preclusion list.  CMS Ex. 15. 

Petitioners timely requested a hearing (Hearing Request) before an administrative law judge (ALJ).  The revocation hearing requests were docketed as C-24-244 through C-24-250 and ALJ Jacinta Alves was designated to hear and decide the cases.  On February 13, 2024, Judge Alves issued a notice of intent to consolidate the pending cases.  Neither party objected to the consolidation and on February 27, 2024, Judge Alves issued an order consolidating the cases into C-24-250.  A Standing Pre‑hearing Order (Pre‑hearing Order) was also issued in which she instructed the parties to file pre-hearing exchanges.  CMS filed a motion for summary judgment and brief along with 16 proposed exhibits (CMS Exs. 1-16) on April 16, 2024.  Petitioner filed a brief opposing summary judgment (P. Br.), identified one witness, and offered two proposed exhibits (P. Exs. 1-2) on May 17, 2024.  CMS filed a reply brief on June 3, 2024 and Petitioner filed a sur-reply1  on June 7, 2024. 

On May 6, 2025, this case was reassigned, and I was designated to hear and decide this case. 

II. Jurisdiction

I have jurisdiction to decide 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).

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III. Issues

Whether summary judgment is appropriate;

Whether CMS had a legitimate basis to revoke Petitioners’ Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3), (a)(4), and (a)(9), due to Petitioner Dr. Vito’s felony conviction for bankruptcy fraud; and

Whether CMS had a legal basis to place Petitioners on its preclusion list, as defined at 42 C.F.R. §§ 422.2 and 423.100. 

IV. Exhibits

Petitioners did not object to CMS’s exhibits.  Therefore, I will admit CMS Exhibits 1-16 into evidence. 

Petitioners filed a witness statement from Dr. Vito (P. Ex. 1) and a letter sent to the North Carolina Board of Podiatry dated June 16, 2014 (P. Ex. 2).  Petitioners also filed a request to submit additional evidence with their hearing request which included the North Carolina consent order and a document listing the different nursing homes Dr. Vito currently provides services at and detailing the importance of his treatment.  I will admit Dr. Vito’s sworn statement at Petitioners’ Exhibit 1 into evidence.  The consent order has already been included in this matter as CMS Ex. 3. 

As for the June 2014 letter and the nursing home document, under 42 C.F.R. § 498.56(e), any evidence presented for the first time before an ALJ must be examined by the ALJ for a determination of whether there is good cause to admit the new documentary evidence.  If there is good cause, the evidence may be admitted and considered.  If there is not good cause, the evidence may not be considered.  Petitioners do not dispute that they did not offer the proposed evidence with their reconsideration requests but instead argue that I should find good cause to admit them into evidence.  However, Petitioners offer no explanation as to why the documents were not produced at the reconsideration level.  The June 2014 letter was created nearly ten years earlier and the nursing home document likely could have been compiled prior to the reconsideration requests.  As a result, I deny the request to admit Petitioners’ Exhibit 2 and the nursing home document into evidence.  

Petitioners also filed case law as Exhibit 3 three months after their pre-hearing exchange.  I do not consider case law to be an exhibit, but the case and its applicability to this matter at hand are discussed below.  

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V. Applicable Law

The Social Security Act (Act) establishes the enrollment process for providers and suppliers participating in Medicare or Medicare related programs.  42 U.S.C. §§ 1302(a), 1395cc(j).  Under the Act, “suppliers” are physicians or other practitioners, “a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  42 U.S.C. § 1395x(d).  “Providers” include hospitals, skilled nursing facilities, and home health agencies.  42 U.S.C. § 1395x(u).  Any physician who participates in the Medicare program is considered a “supplier.”  42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202 (definition of “supplier”).  

In order to participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may revoke a supplier’s Medicare enrollment and billing privileges for any reason stated in 42 C.F.R. § 424.535(a):  

(3) Felonies.  

(i) The provider, supplier, or any owner or managing employee, managing organization, officer, or director of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 [C.F.R. §] 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.

(ii) Offenses include, but are not limited in scope or severity to-

(A) Felony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.

(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions. 

(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a

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malpractice suit that results in a conviction of criminal neglect or misconduct.

(D) Any felonies that would result in mandatory exclusion under section 1128(a) of the Act. 

* * * *

(4) False or misleading information.  The provider or supplier certified as “true” misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.  (Offenders may be subject to either fines or imprisonment, or both, in accordance with current law and regulations.) 

* * * *

(9) Failure to report.  The provider or supplier did not comply with the reporting requirements specified in § 424.516(d) or (e), § 410.33(g)(2) of this chapter, or § 424.57(c)(2).  In determining whether a revocation under this paragraph (a)(9) is appropriate, CMS considers the following factors: 

(i) Whether the data in question was reported. 

(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)(3)-(4), (9). 

When revocation is based on a provider or supplier’s felony conviction, the effective date of the revocation is the date of the felony conviction.  42 C.F.R. § 424.535(g)(2)(ii).  

Additionally, CMS has established a preclusion list comprised of individuals and entities for whom Medicare Advantage plans cannot provide reimbursement for items and services they provide, and for prescribers to whom Medicare Part D plans cannot provide reimbursement for any prescriptions the individuals write.  42 C.F.R. §§ 422.222, 423.120(c)(6).  Each of the following three requirements must be met for CMS to include an individual or entity on its preclusion list: 

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(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in [42 C.F.R.] § 424.535(a)(3) of this chapter. 

(ii) The individual or entity is currently under a reenrollment bar under [42 C.F.R.] § 424.535(c). 

(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 . . . 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; 423.100 (definitions of Preclusion List). 

An individual or entity is placed on the preclusion list no sooner than 60 days from the date of the notice of the initial determination to place the individual or entity on the preclusion list, or when a reconsidered determination is issued.  42 C.F.R. §§ 422.222(a)(3)(i), 423.120(c)(6)(v)(C)(1).  Generally, an individual or entity placed on the preclusion list due to a felony conviction remains on the preclusion list until 10 years from the date of the felony 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) (as amended effective January 1, 2020, 84 Fed. Reg. 15,680, 15,832, 15,840-41 (Apr. 16, 2019)).  CMS has discretion to determine that a shorter period of exclusion is warranted based on consideration of the severity of the offense, when the offense occurred, and any other information CMS deems relevant.  42 C.F.R. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).  CMS also has discretion to not place an individual or entity on the preclusion list, or to remove the individual or entity from the preclusion list if CMS determines exceptional circumstances exist related to Medicare beneficiary access to items, services, or drugs.  In making the exceptional circumstances determination, CMS considers the degree to which beneficiary access is impaired and any other evidence it deems relevant.  42 C.F.R. §§ 422.222(a)(6), 423.120(c)(6)(vi).  

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VI. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis. 

1. Summary judgment is appropriate with respect to CMS’s revocation of Petitioners’ enrollment and billing privileges. 

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  In determining whether there are genuine issues of material fact for trial, the ALJ must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5-6 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5-6 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differ from that used in resolving a case after a hearing.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 4-5 (2009).  Rather, on summary judgment, the ALJ construes the evidence in the light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  Id.  The Departmental Appeals Board (Board) also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010).  

a. Undisputed Facts

The facts are undisputed, or for purposes of summary judgment, Petitioners’ averred facts are accepted as true and all favorable inferences are drawn in favor of Petitioners. 

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On April 11, 2013, Dr. Vito was charged with four felony counts of bankruptcy fraud in the Macon Division of the Middle District of Georgia.  CMS Ex. 1 at 1-3.  On February 10, 2014, Dr. Vito pleaded guilty to one count of felony bankruptcy fraud in violation of 18 U.S.C. § 152(2).  CMS Ex. 1 at 4-16.  Dr. Vito’s guilty plea was accepted, and he was sentenced to twelve months and one day in prison, followed by ten months of monitoring and three years of probation.  Id. at 17-22.  Dr. Vito served four months in prison followed by eight months in a halfway house.  CMS Ex. 14.

On September 18, 2014, Dr. Vito and the North Carolina Board of Podiatry Examiners entered into a Consent Order, under which his podiatry license in North Carolina was suspended for the duration of his sentence.  CMS Ex. 3. 

CMS, through its contractors, notified Petitioners that it had revoked their Medicare enrollment and billing privileges.  CMS Ex. 13. 

• On June 21, 2023, Palmetto GBA, LLC (Palmetto) informed Dr. Vito that his Georgia Medicare privileges were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), because of his February 10, 2014 felony conviction.  Palmetto informed Petitioner that he was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 4-5.
• On June 15, 2023, Novitas Solutions, Inc. (Novitas) informed Dr. Vito that his Pennsylvania Medicare privileges were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), because of his February 10, 2014 felony conviction.  Novitas informed Petitioner that he was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 12-13.
• On June 15, 2023, National Government Services, Inc. (NGS) informed Dr. Vito that his New York Medicare privileges were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), (a)(9), because of his February 10, 2014 felony conviction.  NGS informed Petitioner that he was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 20-21.
• On June 15, 2023, Novitas informed Dr. Vito that the DMEPOS Medicare privileges of the Ankle and Foot Center of Western New York were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), because of his February 10, 2014 felony conviction.  Novitas informed Petitioner that it was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 29-30.
• On June 21, 2023, Palmetto informed Dr. Vito that his North Carolina Medicare privileges were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), (a)(9), because of his February 10, 2014 felony conviction.  Palmetto informed Petitioner that he was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 38.

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• On June 21, 2023, Novitas informed Dr. Vito that the DMEPOS Medicare privileges of the Foot and Ankle Institute of North Carolina were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), (a)(9), because of his February 10, 2014 felony conviction.  Novitas informed Petitioner that it was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 46-47.
• On June 21, 2023, Palmetto informed Dr. Vito that the Medicare privileges of the Foot and Ankle Institute of North Carolina were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), (a)(9), because of his February 10, 2014 felony conviction.  Palmetto informed Petitioner that it was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 13 at 55-56. 

The contractors explained that Petitioners’ Medicare privileges were being revoked pursuant to 42 C.F.R. §§ 424.535(a)(3), (a)(4), and (a)(9), because of Dr. Vito’s February 10, 2014 felony conviction for bankruptcy fraud.  Id. at 4, 12, 20, 29, 35, 46, 55. 

b. Analysis

The only determinations of CMS or its contractor that are subject to my review in this case are the reconsidered determinations issued by the CMS hearing officer on December 21, 2023.  42 C.F.R. § 498.5(n)(2); cf. Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014) (only the reconsidered determination is subject to ALJ and Board review in provider and supplier enrollment cases); Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (“The ALJ’s review of CMS’s revocation of [Petitioner’s] Medicare billing privileges is thus limited to whether CMS had established a legal basis for its actions.”).  

i. 42 C.F.R. § 424.535(a)(3)

CMS reasonably determined that the offense of which Dr. Vito was convicted is detrimental to the best interests of the Medicare program and its beneficiaries. 

In each of the reconsidered determinations, the CMS hearing officer concluded that there was a basis for revoking Petitioners’ Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) due to Petitioner Dr. Vito’s felony conviction for bankruptcy fraud.  The CMS hearing officer determined that Dr. Vito’s conviction was within 10 years of the date of the revocation, falls within the definition of “Convicted” as stated in 42 C.F.R. § 1001.2, and that bankruptcy fraud is detrimental to the best interests of the Medicare program and its beneficiaries under 42 C.F.R. § 424.535(a)(3)(ii)(B).  See CMS Ex. 15. 

Viewing the evidence before me in a light most favorable to Petitioners and drawing all inferences in Petitioners’ favor, I conclude that there are no genuine disputes as to any

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material facts necessary to conclude that CMS had a legitimate basis to revoke Petitioners’ Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) due to Dr. Vito’s felony conviction for bankruptcy fraud.  CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate with respect to the revocation of Petitioners’ Medicare enrollment and billing privileges. 

Petitioners argue that bankruptcy fraud is not per se detrimental to the best interests of the Medicare program because it was not listed as one of the specified crimes in the regulation.  However, the listing of per se detrimental felonies in 42 C.F.R. § 424.535(a)(3)(ii) is not exhaustive, but specifically permits revocation for detrimental felonies like the crimes listed.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 10 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp.2d 167 (D. Mass. 2010).  The elements necessary for revocation pursuant to 42 C.F.R. § 424.535(a)(3) are:  (1) the supplier was convicted of a federal or state felony offense; (2) the conviction occurred within the 10 years preceding the revocation action; and (3) the Secretary has specified that the conviction is per se detrimental in 42 C.F.R. § 424.535(a)(3)(ii) or CMS has determined on a case-by-case basis under 42 C.F.R. § 424.535(a)(3)(i) that the supplier’s felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  Fady Fayad, M.D., DAB No. 2266 at 7 (2009), aff’d, Fayad v. Sebelius, 803 F. Supp.2d 699 (E.D. Mich. 2011); Michael Scott Edwards, OD and M. Scott Edwards, OD, PA, DAB No. 2975 at 9-11 (2019); Neil Niren, M.D. and Neil Niren, M.D., P.C., DAB No. 2856 (2018). 

Here, the CMS hearing officer determined that Dr. Vito’s felony conviction was detrimental to the best interests of the Medicare program based on the specific facts of his case, specifically because his offense involved making a false statement under penalty of perjury and demonstrated a lack of integrity and very poor judgment.  See CMS Ex. 15.  Further, the Board has determined that CMS’s revocation authority is discretionary but an ALJ and the Board are limited to deciding whether CMS had a legal basis for revocation and may not substitute their discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.  Douglas Bradley, M.D., DAB No. 2663 at 13-14 (2015). 

ii. 42 C.F.R. § 424.535(a)(4)

CMS had a legal basis to revoke Petitioners’ Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(4) because Dr. Vito provided false or misleading information on enrollment and revalidation applications by failing to report an adverse legal action.  

The enrollment and revalidation applications require providers and suppliers to provide information on any final adverse legal actions imposed against the applicant under any current or former name or another business entity.  Dr. Vito signed and submitted ten different applications to CMS between 2014 and 2022.  However, seven out of ten of

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those applications did not mention any adverse legal actions.  Three of the applications filed by Dr. Vito pertaining to his New York Medicare privileges answered yes, but only disclosed the North Carolina consent order, not the felony conviction.  See CMS Ex. 6 at 13, 22, 31.  Each application requires the applicant to disclose final adverse legal actions, asking whether a final adverse legal action has ever been imposed against an applicant under any current or former name of business entity.  See, e.g., CMS Ex. 8 at 27 (providing clarification on what constitutes a final adverse legal action or conviction).  Even when Dr. Vito disclosed the consent order, he did not mention his February 2014 felony conviction on any of the applications.  Dr. Vito electronically signed the certification statement and was the authorized signer for Petitioners’ applications.  CMS Exs. 4, 5, 6, 8, 9, and 11.  

Viewing the evidence before me in a light most favorable to Petitioners and drawing all inferences in Petitioners’ favor, I conclude that there are no genuine disputes as to any material facts and that CMS had a legitimate basis to revoke Petitioners’ Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(4) due to Dr. Vito’s felony conviction for bankruptcy fraud.  CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate with respect to the revocation of Petitioners’ Medicare enrollment and billing privileges. 

Petitioners do not dispute these facts.  Instead, Petitioners argue that someone at CMS informed Dr. Vito that his felony conviction was not harmful to healthcare, did not meet the criteria specified in the applications, and was covered by the North Carolina consent order.  Further, Dr. Vito argues that the consent order was attached to his initial Medicare application after his conviction and that the consent order discusses the felony conviction so CMS was aware of the conviction.  P. Br. at 4-5.  CMS addressed similar arguments in its reconsidered determinations and found that even if Dr. Vito had received such advice, the applications clearly instruct each applicant to disclose and list all adverse legal actions, regardless of the nature of the felony offenses.  See CMS Ex. 15.  As a result, it is clear that Dr. Vito needed to disclose his felony conviction on each of his Medicare applications. 

Regardless of Dr. Vito’s intent, CMS has authority to revoke a provider or supplier’s Medicare enrollment and billing privileges when the applicant certifies as true information on the enrollment application that is in fact false or misleading. 

Petitioners also filed a late argument asserting that his failure to disclose is controlled by Breton L. Morgan, M.D., Inc. v. Azar, No. CV 3:19-0406, 2020 WL 257376 (S.D.W. Va. June 6, 2020).  Petitioners attached a copy of the decision and labeled it Petitioners’ Exhibit 3.  In Morgan, the applicant checked the box disclosing an adverse legal action and attached a copy of the IG’s exclusion notice.  The applicant did not specifically disclose the underlying felony conviction.  The district court held that the application was

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not false or misleading because the inclusion of the IG’s exclusion notice would put a reviewer on notice of the existence of a felony conviction. 

The Board has held that Morgan is not controlling in different judicial districts and, therefore, would only affect Petitioners’ cases in the fourth judicial district.2   William Garner, M.D., DAB No. 3026 at 11-13 (2020).  Further, with regard to the North Carolina Medicare applications that could be affected by the decision in Morgan, Petitioners failed to indicate that there was an adverse legal action on their applications.  As a result, Morgan is not analogous to the case at hand.  Additionally, even if (a)(4) was not a ground to revoke Petitioners’ Medicare privileges, there are sufficient grounds under (a)(3) as discussed above. 

iii. 42 C.F.R. § 424.535(a)(9)3 

CMS had a legal basis to revoke Petitioners’ Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(9) because they did not comply with the applicable reporting requirements.  

Under 42 C.F.R. § 424.535(a)(9), CMS may revoke a supplier’s enrollment and billing privileges if a supplier does not comply with the reporting requirements of 42 C.F.R. §§ 424.516(d)-(e), 410.33(g)(2), 424.57(c)(2).  Petitioners are neither independent diagnostic testing facilities, so the reporting requirements of section 410.33(g)(2) do not apply.  Petitioners Ankle and Foot Center of Western New York and Foot and Ankle Institute of North Carolina had DMEPOS privileges, which were revoked.  See CMS Ex. 13 at 29-30, 64-47.  Relevant here is 42 C.F.R. § 424.516(d), which establishes reporting requirements for physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations and requires suppliers to report “[a]ny adverse legal action” within 30 days.  Also relevant here is 42 C.F.R. § 424.57(c)(2), which requires DMEPOS suppliers to certify that they have not made, or caused to be made, any false statement or misrepresentation of a material fact on their billing privileges applications, including providing complete and accurate information in response to application questions and reporting any changes in information supplied on the application within 30 days of the change. 

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It is undisputed that Petitioners failed to report Dr. Vito’s February 10, 2014 felony conviction for bankruptcy fraud as required by the regulations.  Petitioners again mistakenly argue that they were not required to disclose the felony conviction within 30 days because it was not a felony conviction listed among those financial crimes specified in the regulations.  However, this argument disregards that 42 C.F.R. § 424.535(a)(9) requires the disclosure of any adverse legal action within 30 days. 

Next, Petitioners argue that because the North Carolina consent order was attached to Dr. Vito’s Medicare application in September 2014, Dr. Vito did disclose an adverse legal action.  Even assuming arguendo that this attachment somehow satisfied the reporting requirement, Petitioners admit that it was not disclosed within the required 30 days by noting that it was not filed with CMS until September – approximately 6 months after Dr. Vito’s conviction.  P. Br. at 15. 

2. There is a basis for adding Petitioner to the CMS 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   To include an individual on its preclusion list, CMS must determine that the individual is currently revoked from Medicare, the individual is currently under a reenrollment bar, and 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.  My review of CMS’s decision to include an individual on its preclusion list is strictly limited to whether there is a basis for adding the individual or entity to the preclusion list.  83 Fed. Reg. 16,440, 16,642-43 (Apr. 16, 2018); 42 C.F.R. §§ 498.3(b)(20), 498.5(n). 

CMS placed Petitioners on the preclusion list due to a felony conviction within the previous 10 years that CMS deemed detrimental to the best interests of the Medicare program.  See CMS Ex. 15. 

Petitioners do not dispute that their Medicare billing privileges were revoked or that they were under a re-enrollment bar at the time of preclusion.  However, Petitioners argue that

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CMS does not have the legal authority to revoke their billing privileges or place them on the preclusion list.  P. Br. at 17. 

Although Petitioners may disagree with CMS’s determinations, CMS is not required to explain the reasons underlying its use of discretion.  See Brian K. Ellefsen, DO, DAB No. 2626 at 10 (2015).  CMS need only identify the legal basis enabling its use of discretion.  Douglas Bradley, M.D., DAB No. 2663 at 13 (2015).  Moreover, to the extent that Petitioners’ argument would require review of CMS’s exercise of discretion to place them on the preclusion list, an ALJ is simply not authorized to review the reasonableness of CMS’s exercise of discretion.  See id. at 13 n.13 (Board explaining that “the reasonableness of CMS’s exercise of discretion is not a reviewable issue under any standard of review.”). 

The evidence shows that CMS considered the factors required by the regulations in determining whether Petitioners’ conduct is detrimental to the best interests of the Medicare program, including the seriousness of Petitioners’ 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.  Furthermore, Petitioners’ enrollment is revoked under 42 C.F.R. § 424.535(a)(3), (a)(4), and (a)(9), and Petitioners are subject to a ten-year reenrollment bar.  CMS considered the foregoing elements in the context of 42 C.F.R. §§ 422.2, 423.100 in deciding to place Petitioners on the preclusion list and articulated at length the reasons justifying its conclusions in the reconsidered determination.  Therefore, CMS had a legal basis under 42 C.F.R. § 422.2 for placing Petitioners on the preclusion list.  42 C.F.R. § 422.222(a)(5)(iii).  

I am not authorized to overturn a legally valid agency action based on equitable grounds, or grant equitable relief.  Wendell Foo, M.D., DAB No. 2904 at 25 (2018) (citing Foot Specialists of Northridge, DAB No. 2773 at 18 (2017)).  I may only review whether the regulations authorize CMS’s actions.  If CMS establishes a basis for placing Petitioners on the preclusion list, I must uphold the decision.  See Foo, DAB No. 2904 at 3; Wassim Younes, M.D., DAB No. 2861 at 8 (2018) (citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016)).  Because I have found that there is a basis for revocation, Petitioners are subject to a reenrollment bar, and CMS determined the felony conviction at issue is detrimental to the best interests of the Medicare program, CMS has a basis for adding Petitioners to the CMS preclusion list.  42 C.F.R. §§ 422.2, 423.100 (2018); 83 Fed. Reg. 16,440, 16,641-67 (Apr. 16, 2018). 

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VII. Conclusion

For the foregoing reasons, I affirm CMS’s determination to revoke Petitioners’ Medicare billing and enrollment privileges under 42 C.F.R. § 424.535(a)(3), (a)(4), and (a)(9), and to include Petitioners on its preclusion list.