Michael Bobb, D.O., DAB CR6766 (2025)

DECISION

Petitioner, Michael Bobb, D.O., is an Ohio physician who participated in the Medicare program until the Centers for Medicare & Medicaid Services (CMS), through its Medicare administrative contractor, revoked his Medicare enrollment under 42 C.F.R. §§ 424.535(a)(1) and 424.535(a)(9).  CMS took this action because the State Medical Board of Ohio suspended Petitioner’s medical license and because Petitioner did not report the suspension to CMS.  Petitioner appeals the revocation.  For the reasons that follow, I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges. 

I. Case Background and Procedural History

Petitioner was licensed to practice osteopathic medicine in the State of Ohio on November 4, 2005.  CMS Ex. 3 at 1.  On May 8, 2024, Petitioner entered into a Consent Agreement with the State Medical Board of Ohio wherein, inter alia, Petitioner’s medical license was suspended for an indefinite period but not less than 180 days.  CMS Ex. 2 at 2.  Petitioner reported the license suspension to the Department of Health and Human Services in North Carolina, the state in which he most recently practiced.  CMS Ex. 9 

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at 3; CMS Ex. 2 at 4-5.  Petitioner was also enrolled in Medicare as a supplier when his license was suspended, but he did not report the suspension to CMS.  CMS Ex. 11 at 1; CMS Ex. 6 at 2.  On November 14, 2024, the State Medical Board of Ohio notified Petitioner his medical license was reinstated effective November 13, 2024.  CMS Ex. 7 at 1. 

On September 4, 2024, CGS Administrators, LLC (CGS), a CMS Medicare administrative contractor, notified Petitioner that his Medicare enrollment and billing privileges were being revoked, effective May 8, 2024, for the following reasons: 

• 42 CFR § 424.535(a)(1)
  The State Medical Board of Ohio suspended your medical license, effective May 8, 2024.
• 42 CFR § 424.535(a)(9)
  The State Medical Board of Ohio suspended your medical license, effective May 8, 2024.  You did not notify [CMS] of this adverse legal action within 30 calendar days as required under 42 CFR § 424.516(d)(1).  

CMS Ex. 5 at 1.  The initial determination to revoke also stated that CMS is establishing a five-year reenrollment bar, and that Petitioner was being added to CMS’s preclusion list.  Id.  CGS later rescinded its determination to place Petitioner on the preclusion list.  CMS Ex. 8 at 1. 

In a letter dated November 8, 2024, Petitioner requested reconsideration, stating that he believed his medical license would soon be reinstated.  CMS Ex. 6 at 1-2.  Petitioner also explained that he thought his disclosure to North Carolina included disclosure to Medicare.  Id. at 2.  On March 12, 2025, CMS issued a reconsidered determination upholding Petitioner’s revocation.  CMS Ex. 1. 

Petitioner timely requested a hearing, and the case was assigned to me.  On May 13, 2025, at my direction, the Civil Remedies Division issued an Acknowledgment and my Standing Order for Medicare Provider/Suppler Enrollment and Revocation Cases, and CMS Preclusion List Cases (Standing Order), which tells parties what they must do to present evidence and arguments.  On June 2, 2025, CMS timely filed a brief and motion for summary judgment (CMS Br.) along with 11 proposed exhibits (CMS Exs. 1-11).  CMS did not propose any witnesses.  On July 2, 2025, Petitioner filed a response (P. Response) opposing CMS’s motion for summary judgment, and CMS filed a Reply (CMS Reply) on July 14, 2025.  Finally, on July 22, 2025, Petitioner filed a Request for Submission of New Evidence, along with the proposed exhibit, and a Prehearing Brief (P. Br.).  Petitioner did not submit the written direct testimony of or otherwise identify any witnesses. 

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II. Admission of Evidence and Decision on the Record

Petitioner did not object to CMS’s 11 proposed exhibits; therefore, I admit CMS’s exhibits into the record as CMS Exs. 1-11.  CMS did not object to Petitioner’s proffer of new evidence.  I find good cause for Petitioner not submitting the evidence earlier based on Petitioner’s newly submitted arguments; therefore, I admit Petitioner’s proposed exhibit into the record as P. Ex. 1.  42 C.F.R. § 498.56(e). 

The Standing Order issued in this case required each party to include the written direct testimony for all witnesses with the prehearing exchange and instructed that no hearing would be necessary unless the parties submitted written direct testimony, and a party requested to cross-examine at least one witness.  Standing Order at ¶¶ 11-13; Civil Remedies Division Procedures (CRDP) §§ 16(a), (b); 19(d) (incorporated by reference at Standing Order ¶ 1).  Because neither party submitted written direct testimony, I issue this decision based on the written record.1  I dismiss CMS’s motion for summary judgment as moot. 

III. Issue

Whether CMS had a legitimate basis to revoke Petitioner’s billing privileges under 42 C.F.R. §§ 424.535(a)(1) and 424.535(a)(9).2  42 C.F.R. § 498.3(b)(17). 

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IV. Discussion

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to establish by regulation the enrollment process for providers and suppliers participating in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  To participate in the Medicare program as a supplier, individuals must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510, 424.516.  CMS may revoke the Medicare billing privileges of suppliers for any of the reasons stated in 42 C.F.R. § 424.535(a). 

My findings of fact and conclusions of law, set forth in italics, follow. 

1. A. CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(1) because Petitioner was out of compliance with enrollment requirements when his medical license was suspended from May 8, 2024, to November 13, 2024.

The regulation at 42 C.F.R. § 424.535(a)(1) authorizes CMS to revoke a currently enrolled supplier’s billing privileges if CMS determines the supplier no longer meets the enrollment requirements for its supplier type.  Among the applicable requirements for a supplier to maintain enrollment is compliance with applicable federal and state licensure requirements for his supplier type.  42 C.F.R. § 424.516(a)(2). 

Pursuant to a Consent Agreement that Petitioner entered with the State Medical Board of Ohio, Petitioner’s medical license was suspended effective May 8, 2024, for at least 180 days.  CMS Ex. 2 at 2.  Although Petitioner’s license was reinstated on November 13, 2024, the prior suspension—regardless of its brief duration—resulted in noncompliance with Medicare enrollment requirements.  Akram A. Ismail, DAB No. 2429 at 8 (2011) (“Dr. Ismail’s inability to practice medicine for any length of time due to the disciplinary actions imposed against him triggered his noncompliance with the Medicare enrollment requirements and authorized revocation of his billing privileges.”); see also Meindert Niemeyer, M.D., DAB No. 2865 at 10 (2018) (“A medical license suspension at any point in time that the physician is enrolled in the Medicare program is grounds for revocation.”). Therefore, Petitioner was not in compliance with enrollment requirements because he did not maintain his medical license in violation of 42 C.F.R. § 424.535(a)(1). 

Petitioner does not dispute that his license was suspended but contends that revocation pursuant to 42 C.F.R. § 424.535(a)(1) is a discretionary action that requires a fact-based evaluation of Petitioner’s conduct, efforts to cure, and consideration of whether revocation is proportionate to the underlying action.  P. Response at 7-8; see also P. Br. at 5 (stating that the regulatory structure requires CMS to evaluate the totality of the circumstances before determining whether revocation is appropriate).  Petitioner also argues that revocation under this provision is intended to address substantive 

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noncompliance that undermines program integrity, a level to which his conduct did not rise.  P. Response at 6; see also P. Br. at 4. 

Petitioner is correct that revocation is discretionary; however, the discretion to revoke belongs to CMS.  The Departmental Appeals Board (Board) has long held that neither an ALJ nor the Board may substitute their discretion for that of CMS in determining whether revocation is appropriate.  Meindert Niemeyer, M.D., DAB No. 2865 at 10-11; Brian K. Ellefsen, DO, DAB No. 2626 at 7 (2015); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009). 

Instead, ALJ review is limited to whether CMS had a legal basis to revoke a provider’s or supplier’s billing privileges.  Stanley Beekman, D.P.M., DAB No. 2650 at 10 (2015) (stating an ALJ’s review “is specifically limited to whether there was a legal basis for CMS to revoke a provider’s or supplier’s Medicare billing privileges.”) (Citations omitted).  So long as the record evidence establishes that the regulatory elements for revocation are satisfied, as they are in this case, I must sustain the revocation.  Id. 

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 to CMS that his medical license was suspended.

Petitioner’s failure to report the license suspension provides CMS an alternative justification for revoking Petitioner’s Medicare enrollment.  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, inter alia, 42 C.F.R. § 424.516(d).  Section 424.516(d) requires physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations to report “[a]ny adverse legal action” within 30 days.  42 C.F.R. § 424.516(d)(1)(ii). 

Petitioner does not dispute that as a physician enrolled in Medicare that he was subject to the reporting requirements.  Petitioner also does not dispute that the license suspension was a reportable adverse legal action or that he failed to report it to CMS.  42 C.F.R. § 424.502.  Instead, Petitioner argues that his failure to report resulted directly from his prior counsel’s negligence in advising on the mandatory reporting requirements and in failing to assist Petitioner in submitting the required report.  P. Response at 8-11; P. Br. at 6-10.  Petitioner states that “CMS’s decision to revoke Petitioner’s Medicare enrollment constitutes an abuse of discretion.  The alleged reporting failure [was not caused by any action or omission of the Petitioner, but rather] resulted from prior counsel’s negligent failure to report.”  P. Br. at 9. 

I reiterate that where the regulations have granted CMS discretion to determine whether a provider’s or supplier’s noncompliance with reporting requirements warrants revocation, I may not substitute my own judgment as to whether CMS properly exercised that 

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discretion.  Brian K. Ellefsen, DO, DAB No. 2626 at 7.  The regulations provide that “[i]n determining whether a revocation under this paragraph (a)(9) is appropriate, CMS considers the following factors:”  whether the data in question was reported; if so, how belatedly it was reported; the materiality of the data in question; and any other information CMS deems relevant to its determination.  42 C.F.R. § 424.535(a)(9)(i)-(iv). 

In upholding the revocation based on Petitioner’s undisputed failure to report his license suspension, CMS explicitly considered the regulatory factors set forth above.  CMS Ex. 1 at 5-6 (on reconsideration finding the license suspension was not reported; the suspension and conditions of reinstatement were material; and further considering the seriousness of the conduct leading to the license suspension).  Even if I disagreed with CMS’s evaluation of those factors, which I do not, I am not permitted to substitute my judgment for CMS’s. 

Nor does Petitioner’s advice of counsel argument change the outcome.  CMS is correct that the courts and the Board have long recognized that Medicare providers and suppliers, as participants in the program, have a duty to familiarize themselves with Medicare requirements.  See, e.g., Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, at 64 (1984); John Hartman, D.O., DAB No. 2564 at 3 (2014); Waterfront Terrace Inc., DAB No. 2320 (2010).  More to the point, and again as CMS notes, the regulation at 42 C.F.R. § 424.535(a)(9) does not require it to show that a supplier intentionally failed to report a license suspension to revoke; instead, it requires only a failure to report.  CMS Reply at 3.  Therefore, the reasons underlying Petitioner’s failure to report are irrelevant.  Because Petitioner failed to report his license suspension as required by 42 C.F.R. § 424.516(d)(1)(ii), CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under section 424.535(a)(9) and exercised its discretion to do so after explicitly considering the regulatory factors.3 

V. Conclusion

I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges.