Jeffery Christensen, D.O., DAB CR6811 (2026)

DECISION

Despite its disorderly and confusing record, this is a straight-forward case.  CMS has revoked Petitioner's Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(9) and placed him on its preclusion list.  He appealed, and his appeal has been reassigned to me.

Petitioner, Jeffrey Christensen, D.O., is a physician, practicing in Wyoming, who participated in the Medicare program as a supplier of services.  After he admitted diverting a vial of fentanyl for his personal use, the Wyoming Board of Medicine suspended his medical license.  He did not report his license suspension to the Medicare contractor.

Based on his failure to report the adverse action, the Medicare contractor, Noridian Healthcare Solutions, acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked Petitioner's Medicare billing privileges, imposed a one-year reenrollment bar, and added his name to the Medicare preclusion list.

Petitioner appealed, and the parties have filed cross-motions for summary judgment.

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For the reasons discussed below, I grant CMS's motion and deny Petitioner's.  Based on undisputed evidence, I find that CMS is authorized to revoke Petitioner Christensen's Medicare enrollment and add his name to its preclusion list.

I have no authority to review the length of the reenrollment bar, which, in any event, is the statutory minimum.

Background.

By letter dated July 2, 2024, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner Christensen that his Medicare privileges were revoked, effective December 5, 2023.  The letter explains that the contractor revoked his Medicare enrollment for two reasons:

1) pursuant to 42 C.F.R. § 424.535(a)(1), because the Wyoming Board of Medicine suspended his medical license; and

2) pursuant to 42 C.F.R. § 424.535(a)(9), because he did not, within 30 days of his license suspension, notify CMS of the adverse legal action.

CMS Ex. 5 at 1.  The contractor imposed a one-year reenrollment bar, effective 30 days from the postmark date of the notice letter.  42 C.F.R. § 424.535(c); CMS Ex. 5 at 1.

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. 5 at 1.

Petitioner requested reconsideration.  CMS Ex. 7.  In a reconsidered determination, dated February 28, 2025, a CMS hearing officer upheld the revocation under section 424.535(a)(9) but overturned the revocation under section 424.535(a)(1).  CMS Ex. 1 at 7.  She determined that, although the contractor's determination to revoke based on section 424.535(a)(1) was sound at the time it was imposed, Petitioner's Corrective Action Plan which showed that his medical license had been reinstated, corrected that deficiency.  CMS Ex. 1 at 3-4, 7.

Nevertheless, because Petitioner did not timely report the license suspension, as required by 42 C.F.R. § 424.516(d), the hearing officer upheld the revocation under section 424.535(a)(9) and found it appropriate to include Petitioner on the preclusion list.  CMS Ex. at 7.

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Discussion

Summary judgment.  Although the federal rules do not apply directly to these administrative proceedings, in considering summary judgment, I am "procedurally and substantively guided by Rule 56" of the Federal Rules of Civil Procedure.  Civil Remedies Division Procedures § 19; see Livingston Care Ctr. v. U.S. Dep't. of Health & Human Servs., 388 F.3d 168, 172 (6th Cir. 2004).  I am required to consider only the material facts cited by the parties in support of or in opposition to the motion.  However, I "may consider" other materials submitted.  Rule 56(c)(3) Fed. R. Civ. P.  Accord, Administrative Procedures Act, 5 U.S.C. § 556(d) (providing that a rule or order be based on consideration of the whole record or those parts cited by a party and supported by reliable, probative, and substantial evidence).

I need not admit the proffered exhibits, but should treat them as an offer of proof, "to be evaluated, as necessary, to determine whether a genuine issue of material fact exists."  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff'd sub nom. Gorovits v. Becerra, No. 20-1850 (E.D. Pa. May 17, 2021); Ill. Knights Templar Home, DAB No. 2274 at 6-7 (2009) (holding that an ALJ must review all proposed exhibits submitted in support of or in opposition to a motion for summary judgment; the ALJ is not required to admit those exhibits into the record).

Here, CMS is entitled to summary judgment because this case presents no genuine issue of material fact, and CMS is entitled to judgment as a matter of law.  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 5 (2016); W. Texas LTC Partners, Inc., d/b/a Cedar Manor, DAB No. 2652 at 5 (2015); Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4, and cases cited therein.1

The Medicare program.  The Medicare program, Title XVIII of the Social Security Act (Act), is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease.  Medicare is divided into four parts:

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• Part A is the hospital insurance program.  It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, outpatient, home health, and other services.  Act § 1831 (42 U.S.C. § 1395j);
• 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).

1. CMS is entitled to summary judgment because the undisputed evidence establishes that Petitioner Christensen failed to report, to the CMS contractor, that his medical license had been suspended.2

Revocation of enrollment.  CMS may revoke a provider's or supplier's Medicare enrollment and billing privileges if he does not comply with reporting requirements, including that he report, within 30 days, any adverse legal action.  42 C.F.R. § 424.535(a)(9); 42 C.F.R. § 424.516(d).  Suspension, by any state licensing authority, of

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a license to provide health care is a "final adverse action."  42 C.F.R. § 424.502; Akram A. Ismail, M.D., DAB No. 2429 at 11 (2011).

Petitioner's license suspension.  Here, the parties agree that on December 5, 2023, the Wyoming Board of Medicine summarily suspended Petitioner's license to practice medicine.  CMS Ex. 3.  Based on information provided by Wyoming Professional Assistance Program, the Board of Medicine found that:

• On October 25, 2023, a nurse at the Wyoming Surgical Center found a discrepancy in the number of vials of fentanyl (counting 30, when there should have been 31) and verified that Petitioner was the individual who had used the box that day.
• When confronted, Petitioner confirmed that he had diverted the vial of fentanyl.
• The Surgical Center suspended Petitioner for a minimum of 60 days and planned to decide questions of termination when it received the results of his "nail follicle test."
• Although he initially claimed that he disposed of the fentanyl and did not use it, on November 6, 2023, Petitioner admitted to using fentanyl "a couple of days in July and early August 2023, and also using alcohol on occasion."
• Although he was required to provide samples of his nails for a drug test, Petitioner "did not have enough nails to sample to provide to complete . . . proper testing."

CMS Ex. 3 at 2-4.

The Board of Medicine found that, "by initially misleading [Wyoming Professional Assistance Program], about his relapse to abusing fentanyl, not immediately scheduling the [required] assessment, and appearing to thwart the [ordered] nail test," it appeared that Petitioner was not taking the matter seriously and could be in "denial of the critical situation before him."  CMS Ex. 3 at 4.  The Board concluded that, based on the recited facts, "the public health, safety, and welfare of the people of the State of Wyoming imperatively requires" that Petitioner Christensen's Wyoming physician license "be summarily suspended" until a formal complaint was filed and a contested case hearing was completed.  CMS Ex. 3 at 6.

On September 4, 2024, Petitioner Christensen signed a consent decree with the Board of Medicine.  He "confirmed and admitted" that, when confronted by the Surgical Center, he had diverted the vial of fentanyl.  He admitted that, between 2017 and October 2023, he self-administered Dilaudid IV and fentanyl – narcotic, addicting, or scheduled drugs.  CMS Ex. 4 at 17, 25.

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On January 30, 2024 – more than three weeks after the deadline for reporting his suspension – Petitioner Christensen entered the University of Florida, Florida Recovery Center for a comprehensive multi-day evaluation.  CMS Ex. 4 at 17.

Petitioner concedes that he did not report his license suspension but, citing the Americans with Disabilities Act, argues that, because he was suffering from Opioid Use Disorder, he was not required to do so.3  In this regard, he makes two opposing assertions:

• On the one hand, he asserts that he has never failed a drug test and that, during the 30-day reporting period (December 5, 2023 to January 4, 2024), he was "managing (unidentified) multiple pressing responsibilities."
• On the other hand, he claims that he suffered from Opioid Use Disorder, and "[t]he resulting executive dysfunction and emotional distress impaired [his] ability to meet the 30-day reporting requirement, despite [his] consistent history of voluntary disclosure and efforts to seek help."  P. Br. at 2, 3.4

In any event, the issue is irrelevant to the matter before me.  The Departmental Appeals Board has consistently held that an administrative law judge's review of CMS's determination to revoke is limited to deciding whether CMS has established one or more of the grounds specified in section 424.535(a).  William Garner, MD, DAB No. 3026 at 16 (2020); Norman Johnson, M.D., DAB No. 2779 at 11 (2017), and cases cited therein.  CMS has the discretion to consider "unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority."  I do not have similar authority.  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.

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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).

Because CMS has established a legal basis for its action, I must sustain the revocation.  Stephen White, M.D., DAB No. 2912 at 14 (2018); Cornelius M. Donohue, DPM, DAB No. 2888 at 4 (2018); Jason R. Bailey, M.D., P.A., DAB No. 2855 at 18 (2018).

2. CMS acted within its authority when it added Petitioner to its preclusion list because his underlying conduct was detrimental to the best interests of the Medicare program, and he was under a reenrollment bar.

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

Petitioner's offense and the revocations.  As discussed above, Petitioner's medical license was suspended because he abused controlled substances.  Petitioner complains that CMS relied on the Board of Medicine's summary suspension to conclude that his underlying conduct was detrimental to the best interests of the program because the Board of Medicine "never conducted an evidentiary hearing," and he "was never given an opportunity to present evidence, cross-examine witnesses, or challenge the allegations."  P. Surreply at 4.

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I find this complaint disingenuous.  Petitioner was represented by counsel when he signed the consent decree, which, following a hearing, the Board of Medicine accepted.  CMS Ex. 4 at 1, 6.  The Board of Medicine found that Petitioner "confirmed and admitted that he had diverted the vial of fentanyl when confronted" by the Surgery Center.  He also admitted that, between 2017 and October 2023, he self-administered Dilaudid IV and fentanyl – both narcotic, addicting, and/or scheduled drugs.  CMS Ex. 4 at 3.  Based on its evaluation, the Florida Recovery Center concluded that Petitioner could not practice medicine with "reasonable skill and safety."  CMS Ex. 4 at 4.

The Board of Medicine reprimanded Petitioner, restricted his medical license, and placed additional conditions on him (e.g., his work setting had to be preapproved, and he required a work monitor).  He was ordered to pay a civil fine of $500.  CMS Ex. 4 at 10, 11, 14.

The Board of Medicine also advised Petitioner that he had the right to judicial review of its order.  CMS Ex. 4 at 9.  He did not appeal.

Thus, the conduct underlying Petitioner's license suspension was serious and detrimental to the best interests of the Medicare program.  Further, his failing to report the suspension, by itself, was detrimental.  If a supplier does not report an adverse legal action, CMS cannot ensure that Medicare payments are properly paid.

Petitioner Christensen was subject to an adverse legal action that CMS reasonably determined 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)(9), 424.535(c).  Because his medical license was suspended for conduct 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.

I am not authorized to overturn a legally valid agency action based on equitable grounds or otherwise grant equitable relief.  Wendell Foo, M.D., DAB No. 2904 at 25 (2018), citing Foot Specialists of Northridge, DAB No. 2773 at 18 (2017).  So long as CMS establishes a basis for placing Petitioner on the preclusion list, I must uphold its determination to do so.  See Foo, DAB No. 2904 at 3; 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).

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3. I have no authority to review CMS's determination to impose a one-year reenrollment bar.

When a supplier's billing privileges are revoked, it may not participate in the Medicare program until the end of its 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 the minimum one-year reenrollment bar.  I have no authority to review its length.  Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord, William Garner, MD, DAB No. 3026 at 16, Lilia Gorovits, MD, DAB No. 2985 at 15-16; see 42 C.F.R. § 498.3(b)(17).

Conclusion

CMS is entitled to summary judgment because the undisputed evidence establishes that Petitioner Christensen did not timely report that his medical license had been suspended and CMS justifiably determined that the conduct underlying that suspension was detrimental to the best interests of the Medicare program and its beneficiaries.  CMS may therefore revoke his Medicare enrollment and billing privileges.  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 Medicare program, and because he was under a reenrollment bar.

For these reasons, I affirm CMS's determinations.