Dirk Hines, M.D., DAB CR6840 (2026)

DECISION

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

I.  Background and Procedural History

In a November 30, 2023 notice of initial determination, a CMS contractor revoked Petitioner’s enrollment in the Medicare program as a supplier, effective December 30, 2023, for the following reasons: 

42 CFR § 424.535(a)(8)(ii) - Abuse of Billing Privileges
As a basic Medicare enrollment requirement, a provider or supplier must maintain appropriate state licensure based on the type of services the provider or supplier type will furnish and bill Medicare.  See 42 C.F.R. § 424.516(a)(2). Your license to practice as a physician was suspended by the State Medical Board of Ohio effective July 14, 2023.

Page 2

Data analysis was conducted on claims submitted by Mercy Health Physicians Cincinnati LLC, in which you were listed as the rendering provider during the time of your license suspension.  This data revealed thirty-one (31) claims were submitted for nine (9) unique beneficiaries for dates of service between July 15, 2023 and October 30, 2023.  A sample of ten (10) claims is attached to this letter.  See Enclosure A. 

Accordingly, you purportedly provided medical services for a period of nearly 4 months while your medical license was suspended.  The billing for claims—submitted on your behalf --- during a time period in which your medical license was suspended was abusive and improper.

42 CFR § 424.535(a)(9) - Failure to Report
The State Medical Board of Ohio suspended your medical license, effective July 14, 2023.  You did not notify the Centers for Medicare & Medicaid Services of this adverse legal action within 30 calendar days as required under 42 CFR § 424.516(d)(1).1

CMS Ex. 4 at 1.  The CMS contractor also imposed a ten-year bar to reenrollment in the Medicare program.  CMS Ex. 4 at 1.  Finally, the contractor added Petitioner to the CMS Preclusion List.  CMS Ex. 4 at 2.

Petitioner timely requested reconsideration of the initial determination and submitted copies of documents to support his appeal.  CMS Ex. 5.  Petitioner asserted that the initial determination inaccurately alleged that Petitioner provided medical services for nearly four months when his medical license was suspended.  CMS Ex. 5 at 1-2.  Petitioner also responded to the ten Medicare claims listed in the enclosure to the initial determination and asserted that, in each instance, Petitioner had ordered laboratory testing before his medical license was suspended, but other practitioners took over those patients after his license was suspended.  Petitioner alleged that his employer failed to bill Medicare under the names of the new practitioners instead of his own.  CMS Ex. 5 at 2.  Petitioner submitted the patients’ medical records and argued that they prove Petitioner did not continue to practice medicine after his license suspension went into effect.  CMS Ex. 5 at 3.  Petitioner acknowledged “that there was an inadvertent, good faith omission of

Page 3

reporting pursuant to 42 CFR § 424.535(a)(9) – Failure to Report.”  CMS Ex. 5 at 3.  Petitioner stated that his “failure to report the adverse action was simply one of oversight and an honest mistake” and that Petitioner had provided notice of the license suspension to all entities required under the terms of his license suspension.  CMS Ex. 5 at 3.  Finally, Petitioner stated that he had complied with all requirements related to the license suspension and expected reinstatement of the license in February 2024.  CMS Ex. 5 at 4.

In a May 13, 2024 reconsidered determination, a CMS hearing officer upheld the revocation of Petitioner’s enrollment in the Medicare program and the addition of his name to the CMS Preclusion List.  CMS Ex. 6 at 1-12.  Regarding the 42 C.F.R. § 424.535(a)(8)(ii) basis for revocation, the hearing officer agreed that Petitioner’s employer filed the 31 claims where Petitioner was listed as the medical provider; however, the hearing officer stated that Petitioner was responsible for all claims submitted on his behalf.  CMS Ex. 6 at 4-5.  The hearing officer also determined that the 31 claims filed between July 15, 2023, and October 30, 2023, showed a pattern or practice of abusive billing because it was not “sporadic.”  CMS Ex. 6 at 4.  Regarding the 42 C.F.R. § 424.535(a)(9) basis for revocation, the hearing officer found:  Petitioner never reported his license suspension to the CMS contractor; Petitioner’s license suspension was material information because appropriate state licensure is a Medicare program requirement; the failure to report the license suspension resulted in Medicare paying 31 claims showing Petitioner was the physician who provided services to patients when his license was suspended; and Petitioner’s intent (i.e., unintentional mistake) was not a required element for CMS to consider when revoking Petitioner’s enrollment.  CMS Ex. 6 at 6-7.  The hearing officer also upheld the inclusion of Petitioner’s name on the CMS Preclusion List, finding that each of the bases for his revocation were detrimental to the best interests of the Medicare program.  CMS Ex. 6 at 7-9.

On July 12, 2024, Petitioner requested a hearing before an administrative law judge to challenge the reconsidered determination.  On July 16, 2024, the Civil Remedies Division acknowledged receipt of Petitioner’s hearing request, provided the parties with a prehearing submission schedule, informed the parties that Judge Jacinta Alves was assigned to the case, and issued Judge Alves’s Standing Order.  On August 20, 2024, CMS filed a prehearing brief/motion for summary judgment (CMS Br.) and six proposed exhibits.  On November 25, 2024, Petitioner filed a prehearing brief/opposition to summary judgment (P. Br.) and eight proposed exhibits.  Petitioner also submitted a list of six witnesses, including himself.  On December 20, 2024, CMS filed a reply brief (CMS Reply) as well as objections to some of Petitioner’s witnesses and exhibits.  On December 30, 2025, the Civil Remedies Division notified the parties that this case was reassigned to me.

Page 4

II.  Issues

1. Whether CMS had a legitimate basis to revoke Petitioner’s enrollment in the Medicare program under 42 C.F.R. § 424.535(a)(8)(ii) and/or (a)(9).
2. Whether CMS had a legitimate basis to include Petitioner’s name on the CMS Preclusion List under 42 C.F.R. §§ 422.2 and 423.100.

III.  Jurisdiction

I have jurisdiction to decide the issues identified above 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).

IV.  Summary Judgment

CMS moves for summary judgment and Petitioner opposes that motion.  I grant CMS’s motion because the undisputed material facts show noncompliance with 42 C.F.R. § 424.535(a)(9) and that such noncompliance is sufficient to add Petitioner’s name to the CMS Preclusion List.  I deny summary judgment for CMS’s claim that Petitioner violated 42 C.F.R. § 424.535(a)(8)(ii).

Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  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 (2009).

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652

Page 5

at 6 (2015), aff’d sub nom. 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587).

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 8 (2021); Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC Partners, DAB No. 2652 at 6-7; cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 8 (2019), quoting Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”).

Specifically, in relation to administrative proceedings involving Medicare, it is well-established that an ALJ is empowered to decide a case on summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d at 996 (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added).

Finally, deciding a case on summary judgment does not mean that it is decided without a hearing.  In reviewing administrative appeals decided on summary judgment, courts describe the case as having been decided without an “oral hearing” or without an “evidentiary hearing.”  They recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).

V.  Undisputed Facts

1. Petitioner is a physician and was licensed to practice medicine in Ohio in 1994.  CMS Ex. 2 at 1; CMS Ex. 3 at 1.

Page 6

2. Petitioner does not have a medical license in any other state.  CMS Ex. 2 at 1; P. Ex. 1 at 1.
3. Petitioner was enrolled in the Medicare program as a physician/supplier.
4. On April 13, 2022, the State Medical Board of Ohio (State Medical Board) issued a notice to Petitioner that stated the following:
   1. The State Medical Board intended to determine whether to impose disciplinary sanctions on Petitioner, such as revoke or suspend his medical license, refuse to renew or reinstate his medical license, or reprimand or place him on probation.  CMS Ex. 1 at 1.
   2. The notice stated that the possible disciplinary sanctions were based on his treatment of six patients from May 10, 2011, through December 20, 2019, that involved “[i]nappropriate and/or excessive prescribing of controlled substances” and a “[f]ailure to recognize the signs of addiction and/or failure to make the appropriate referrals and/or failure to follow-up on referrals.”  CMS Ex. 1 at 1; CMS Ex. 3 at 2.
   3. The notice provided summaries of the specific factual allegations related to the six patients and cited the various state statutes and regulations that Petitioner allegedly violated.  CMS Ex. 1 at 1-4.
   4. The notice provided Petitioner with a right to request a hearing to dispute the allegations against Petitioner.  CMS Ex. 1 at 4.
5. On June 5, 2023, Petitioner signed a Consent Agreement between himself and the State Medical Board.  CMS Ex. 2.  The terms of the Consent Agreement included:
   1. The purpose of the Consent Agreement was to resolve the allegations in the April 13, 2022 notice without further formal proceedings.  CMS Ex. 2 at 1.
   2. Petitioner admitted to the factual and legal allegations in the April 13, 2022 notice.  CMS Ex. 2 at 1.
   3. Petitioner agreed to a suspension of his medical license for an indefinite period, but not less than 180 days.  CMS Ex. 2 at 2.

Page 7

4. The effective date for the suspension was July 14, 2023, i.e., 30 days following the June 14, 2023 effective date for the Consent Agreement.  CMS Ex. 2 at 2, 6-7.
5. The State Medical Board would only reinstate Petitioner if he demonstrated that he could practice medicine in compliance with prevailing standards and that he met other requirements, including training in the prescription of controlled substances.  CMS Ex. 2 at 3-4.
   6. Petitioner’s employer filed ten claims with the Medicare program indicating that Petitioner provided services to seven Medicare beneficiaries on various dates from July 17, 2023, to September 27, 2023.2  CMS Ex. 4 at 5.  Relevant medical records show that Petitioner ordered laboratory testing for each of the beneficiaries prior to the effective date for his license suspension on July 14, 2023; however, other practitioners provided services to the beneficiaries on or about the dates of the  services listed in the Medicare claims.  CMS Ex. 5 at 18-40.
   7. Petitioner did not inform the relevant CMS contractor within 30 days of July 14, 2023, that his medical license had been suspended.  CMS Ex. 5 at 3-4; P. Br. at 1.
   8. As of November 2023, Petitioner’s Ohio medical license was still suspended.  CMS Ex. 3 at 1.
   9. In February 2024, Petitioner signed a Consent Agreement with the State Medical Board to reinstate his medical license and place him on probation.  P. Ex. 1 at 2.

Page 8

VI.  Conclusions of Law and Analysis

1. Based on the undisputed facts, CMS had a legitimate basis to revoke Petitioner’s enrollment as a supplier in the Medicare program because Petitioner did not report to a CMS contractor, within 30 days, the indefinite suspension of his license to practice medicine in Ohio.

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).  Physicians are “suppliers” for Medicare program purposes.  42 U.S.C. § 1395x(d).

To receive payment for covered Medicare items or services provided to beneficiaries, a supplier must enroll in the Medicare program.  42 U.S.C. §§ 1395n(a), 1395u(h)(1); 42 C.F.R. § 424.505.  To enroll, a supplier must complete and file an enrollment application with CMS and meet all of the requirements to be a supplier.  42 C.F.R. §§ 424.510, 424.530; see also 42 U.S.C. § 1395cc(j).  If CMS determines that an applicant does not meet the requirements for enrollment, CMS may deny enrollment.  42 C.F.R. § 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).

To enroll and maintain active enrollment, a supplier must comply with federal and state licensure requirements for the relevant supplier type.  42 C.F.R. § 424.516(a)(2); see also 42 C.F.R. § 424.510(d)(2)(iii)(A) (requiring submission of applicable licenses with the enrollment application).  For a physician, this means he or she must be “a doctor of medicine . . . legally authorized to practice medicine and surgery by the State in which he performs such function or action. . . .”  42 U.S.C. § 1395x(r)(1); 42 C.F.R. § 410.20(b).

A physician must report, within 30 days, “[a]ny adverse legal action” to the relevant CMS contractor.  42 C.F.R. § 424.516(d)(1)(ii).  An adverse action includes the suspension or revocation of a state license to provide health care.  See 42 C.F.R. § 424.502 (definition of “Final adverse action”).  The failure to timely report an adverse action is a basis to revoke a physician’s Medicare enrollment.  42 C.F.R. § 424.535(a)(9).  When deciding whether to revoke a supplier, CMS will consider the following:  (1) whether the required information was reported; (2) if the information was reported, how untimely it was reported; (3) the materiality of the information; and (4) any other relevant information.  42 C.F.R. § 424.535(a)(9)(i)-(iv).

In the present case, there is no dispute that the State Medical Board indefinitely suspended (i.e., suspension for at least 180 days) Petitioner’s license to practice medicine in Ohio and that Petitioner did not inform the appropriate CMS contractor of the

Page 9

suspension.  CMS Ex. 5 at 3-4; P. Br. at 1.  Therefore, the basic elements for revocation under 42 C.F.R. § 424.535(a)(9) exist.

Despite the record’s clarity that the elements for revocation under 42 C.F.R. § 424.535(a)(9) are met, Petitioner denies that summary judgment is appropriate.  Petitioner argues that CMS’s determination to revoke based on section 424.535(a)(9) is defective because it is “inextricably dependent on CMS’s improper determination that [Petitioner] engaged in a pattern or practice of abusing billing privileges under section 424.535(a)(8)(ii),” which in turn stems “from an erroneous factual finding that [Petitioner provided medical services while his medical license was suspended, thus making the submission of claims by [Petitioner] and/or [Petitioner’s employer] noncompliant with Medicare billing requirements under 42 C.F.R. §424.516(a)(2).”  P. Br. at 11-12.  Petitioner also asserts that “CMS failed to properly consider all relevant facts and failed to follow the guidance set forth in 42 C.F.R. § 424.535(a)(9)(i)-(iv).”  P. Br. at 12.  Petitioner further focused his argument on CMS’s consideration of subsection (a)(9)(iii), arguing that “there was no risk here that this failure to report was detrimental in any way to the Medicare Program or to the Medicare Trust Funds.”  P. Br. at 12.  Petitioner states, without citation to the record, that the CMS contractor did not seek correction of the claims that had the “ministerial, typographical, and/or non-material administrative error that involved submitting a valid, but improperly labeled, claim.”  P. Br. at 13.

As an initial matter, I note that my authority to review CMS’s determination to revoke Petitioner’s enrollment is limited to determining if there is a legal basis to revoke rather than determining whether I agree with CMS’s discretionary determination to revoke.  See e.g., Eva Orticio Villamor-Goubeaux, DAB No. 2997 at 10 (2020).  Part of my review includes the requirement that I ensure CMS exercised its discretion when it revoked Petitioner’s enrollment.  Brian K. Ellefsen, D.O., DAB No. 2626 at 9 (2015).  As mentioned above, when CMS revokes under 42 C.F.R. § 424.535(a)(9), it must consider four factors before deciding whether to revoke.  42 C.F.R. § 424.535(a)(9)(i)-(iv).  Petitioner does not dispute that the elements for revocation under 42 C.F.R. § 424.535(a)(9) (i.e., Petitioner failed to inform an appropriate CMS contractor of his license suspension within 30 days of the suspension taking effect).  However, as summarized above, Petitioner primarily disputes CMS’s consideration of the factors it must consider when making the discretionary decision to revoke.

The limits on my authority to review CMS’s discretionary act of revoking enrollment necessarily limits my review of its consideration of the regulatory factors to determine whether it ought to have imposed a revocation.  However, Ellefsen requires that I determine whether CMS exercised its discretion and, for 42 C.F.R. § 424.535(a)(9), that means a consideration of the regulatory factors.  When doing this, I review the

Page 10

reconsidered determination since that is the determination subject to appeal.3  Devine Solutions Group LLC, DAB No. 3159 at 18 (2024).

In the May 13, 2024 reconsidered determination, a CMS hearing officer upheld the revocation based on 42 C.F.R. § 424.535(a)(9).  The CMS hearing officer’s analysis of the four factors in section 424.535(a)(9)(i)-(iv) were as follows: 

Regarding the first and second factors, CMS has confirmed that [Petitioner] did not report the suspension of his Ohio medical license, timely or at all.  Likewise, [Petitioner] admits that he did not report the suspension of his Ohio medical license to CMS or [the appropriate CMS contractor] within 30 days of its occurrence.

Regarding factor three, CMS considers the unreported information to be plainly material to [Petitioner’s] continued enrollment in the Medicare program because, as required by § 424.516(a)(2), appropriate state licensure is required for enrollment in the Medicare program.  Any failure to report changed enrollment data to CMS is of great concern.  CMS relies on its providers and suppliers to give us complete and accurate data to confirm that the provider or supplier still meets all Medicare requirements and that Medicare payments are made correctly.  Inaccurate or outdated information puts the Medicare Trust Funds at risk (see 84 Fed. Reg. 47,794, 47,826-829 (September 10, 2019)).  This risk is exemplified by the approval and payment of the claims submitted with [Petitioner] as rendering physician while his license was suspended, as CMS was unaware of the suspension.

Regarding factor four, [Petitioner] states that he provided notification to all entities listed in his agreement with the

Page 11

Board, and because he was focused on meeting these terms, he made a good faith omission in neglecting to report the suspension to CMS or [the appropriate CMS contractor].  The oversight in notifying Medicare and/or CGS due to the notification of other entities is inexcusable.  CMS relies on its providers and suppliers to be aware of and comply with program requirements.  This was an adverse legal action that [Petitioner] was required to report but failed to notify CMS or [the appropriate CMS contractor] within the 30-day timeframe.  [Petitioner] argues that it was unintentional mistake on his part.  Nonetheless, intent is not necessary for CMS to properly revoke a Medicare enrollment under § 424.535(a)(9).

CMS Ex. 6 at 6-7.

I conclude that the CMS hearing officer sufficiently considered relevant facts related to the regulatory factors.  Therefore, CMS exercised its discretion within the bounds of the regulations.

It was appropriate for the hearing officer to consider Petitioner’s failure to inform the CMS contractor within 30 days that his license was suspended and that Petitioner ultimately never informed the CMS contractor of the suspension.  Further, the hearing officer is correct that the suspension of a physician’s license is material because, as stated earlier in this decision, authorization to practice medicine under state law is required for a physician to be enrolled in the Medicare program.  In addition, the hearing officer properly considered that a failure to provide required information to CMS threatens the integrity of the Medicare program.  The hearing officer was also free to note that the filing and payment of claims, which incorrectly identified Petitioner as the practitioner who provided the services, showed the materiality of Petitioner’s suspension to the Medicare program.  Had Petitioner timely reported his license suspension, CMS would have been in the position to reject those incorrect claims.  Finally, the hearing officer also addressed Petitioner’s position that he did not intend to violate 42 C.F.R. § 424.535(a)(9).

I also reject Petitioner’s position that the hearing officer improperly accused Petitioner of practicing medicine while his license was suspended or that the hearing officer used the alleged 42 C.F.R. § 424.535(a)(8)(ii) violation to support the existence of the 42 C.F.R. § 424.535(a)(9) violation.  The hearing officer merely pointed out that Petitioner’s failure to timely provide notice of his license suspension placed the Medicare program at risk, as can be seen by the claims that incorrectly stated Petitioner provided services while his license was suspended.  The fact that at least ten claims for services were paid by

Page 12

Medicare, which incorrectly indicated that Petitioner provided those services on dates when his license was suspended, are undisputed facts in this case.

2. I do not grant summary judgment for CMS based on its allegation that Petitioner violated 42 C.F.R. § 424.535(a)(8)(ii).

CMS may revoke the enrollment of a provider or supplier who engages in abuse of billing privileges.  42 C.F.R. § 424.535(a)(8).  CMS may determine that there has been an abuse of billing privileges if a provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  42 C.F.R. § 424.535(a)(8)(ii).  To determine if there has been a pattern or practice, CMS considers, as applicable, one or more of the following four factors: 

(A) The percentage of submitted claims that were denied during the period under consideration.

(B) Whether the provider or supplier has any history of final adverse actions and the nature of any such actions.

(C) The type of billing non-compliance and the specific facts surrounding said non-compliance (to the extent this can be determined).

(D) Any other information regarding the provider or supplier’s specific circumstances that CMS deems relevant to its determination.

42 C.F.R. § 424.535(a)(8)(ii)(A)-(D).

The alleged regulatory violation in this case is based on 31 Medicare claims that Petitioner’s employer filed in which the employer indicated that Petitioner provided services to beneficiaries on dates when Petitioner’s medical license was suspended.  As such, the claims were non-compliant with Medicare requirements because, as stated earlier in this decision, a physician must be authorized to practice medicine to provide reimbursable services.  See CMS Ex. 6 at 4.

The CMS hearing officer considered the first three factors from the regulations to conclude that Petitioner engaged in a pattern or practice of filing claims that do not meet Medicare enrollment requirements.  For the first factor, the hearing officer stated that all of the claims filed between July 15, 2023 and October 20, 2023, were granted and none were denied.  CMS Ex. 6 at 4.  For the second factor, the hearing officer discussed the facts surrounding Petitioner’s license revocation, which involved a failure to maintain

Page 13

minimal standards applicable to the selection or administration of drugs.  CMS Ex. 6 at 5.  The hearing officer concluded that this past adverse action showed “a history of non-compliant and dangerous behavior . . . in the practice of medicine.”  CMS Ex. 6 at 5.  Finally, the hearing officer considered Petitioner’s position that his employer had filed the claims identifying Petitioner as the practitioner because he had originally ordered laboratory testing for each of the beneficiaries before his suspension took effect, but other practitioners had actually provided the claimed services to the beneficiaries after Petitioner’s suspension took effect.  CMS Ex. 6 at 5.  The hearing officer stated that Petitioner’s employer’s mistake in billing was not a defense because Petitioner is still responsible for claims filed on his behalf.  CMS Ex. 6 at 5.

For the first factor, the undisputed facts in this case only support the filing of 10 claims, and not 31 claims, that do not meet Medicare requirements.  Petitioner was not given notice of those additional claims and has not been able to address them as he did the 10 identified claims.  While this does not change the percentage of denied claims as identified by the hearing officer, it does reduce the period of time involved from July 15, 2023 through October 30, 2023, to July 17, 2023, to September 27, 2023.  See CMS Ex. 4 at 5.  Given the limited number of claims over a short period of time that I can consider on summary judgment, this factor only modestly supports the finding of a pattern or practice of filing non-compliant claims.

For the second factor, the undisputed facts support the hearing officer’s statements about Petitioner’s misconduct related to his drug prescribing practices.  CMS Ex. 1.  However, while Petitioner certainly failed to meet proper prescribing practices, the circumstances related to the license suspension appear to have limited connection to the filing of claims that do not meet Medicare requirements.

For the third factor, the undisputed facts indicate that Petitioner’s employer, and not Petitioner, filed the claims that incorrectly billed for services as if provided by Petitioner even though they were provided by other practitioners.  Although the hearing officer cited authority for the proposition that Petitioner is responsible for all claims filed on his behalf (CMS Ex. 6 at 5), this case presents a scenario where the third-party biller does not work for Petitioner but rather Petitioner works for the entity filing the claims.  Such a situation makes monitoring the employer difficult, especially when the period of improper claims is short.  I decline to decide, based only on the undisputed facts, that Petitioner is responsible for his employer’s brief period of incorrect billing.  Additional factual development through witness testimony at a hearing is necessary to determine whether Petitioner bears responsibility for the claims filed by his employer.

CMS asserted that Petitioner’s failure to timely report his license suspension under 42 C.F.R. § 424.535(a)(9) “is all that CMS needs to show to uphold the revocation, reenrollment bar and his inclusion on the preclusion list.”  CMS Reply at 4.  As stated

Page 14

above, I upheld the revocation on summary judgment based on a conclusion that Petitioner violated section 424.535(a)(9).  Therefore, while I decline to uphold a violation of section 424.535(a)(8)(ii) on summary judgment, I affirm the revocation based on a violation of section 424.535(a)(9).  If CMS wants me to render a decision on the alleged section 424.535(a)(8)(ii) violation following a hearing and witness testimony, CMS may file a motion to reopen this case.  42 C.F.R. § 498.100(a).

3. I do not have authority to review the length of the reenrollment bar.

CMS imposed a reenrollment bar on Petitioner for ten years.  CMS Ex. 4 at 1; CMS Ex. 6 at 10.  Petitioner challenges the length of the reenrollment bar.  P. Br. at 14-15.  However, CMS is permitted to impose a reenrollment bar that is at least one year in length and no more than ten years in length, except in certain circumstances that are not present in this case.  42 C.F.R. § 424.535(c)(1)(i).  CMS imposed a reenrollment bar that is within the permitted range.  Therefore, I have no authority to review the five-year length of the reenrollment bar.  Shah v. Azar, 920 F.3d 987, 998 (5th Cir. 2019); Frank B. Lee, M.D., DAB No. 3170 at 27-34 (2025); Vijendra Dave, M.D., DAB No. 2672 at 9 (2016).

4. CMS had a legitimate basis to include Petitioner on the CMS Preclusion List.

CMS may add an individual or entity to the CMS Preclusion List for any of the reasons stated in the regulatory definition of the term “Preclusion List.”  42 C.F.R. §§ 422.2, 423.100.  If this happens, a Medicare Advantage Organization under Medicare Part C may not pay for a health care item, service, or drug provided by the individual or entity on the CMS Preclusion List.  42 C.F.R. § 422.222(a)(1)(i).  Also, a Medicare Part D sponsor must not reimburse a Medicare beneficiary for a drug prescribed by an individual on the CMS Preclusion List.  42 C.F.R. § 423.120(c)(6)(i)-(ii).

CMS may add an individual to the CMS Preclusion List when:  1) CMS revoked the individual’s Medicare enrollment; 2) the individual is currently under a reenrollment bar; and 3) CMS determines 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 (paragraph (1) of definition of “Preclusion List”), 423.100 (paragraph (1) of definition of “Preclusion List”).  When determining whether the underlying basis for the revocation is detrimental to the best interests of the Medicare program, CMS considers: 

1. The seriousness of the conduct underlying the individual’s or entity’s revocation.
2. The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program.

Page 15

3. Any other evidence that CMS deems relevant to its determination.

42 C.F.R. §§ 422.2 (paragraph (1)(iii) of definition of “Preclusion List”), 423.100 (paragraph (1)(iii) of definition of “Preclusion List”).

There is no dispute that CMS revoked Petitioner’s Medicare enrollment and Petitioner is under a reenrollment bar.  Therefore, the only question is whether the underlying basis for revocation is detrimental to the best interests of the Medicare program.

In the reconsidered determination, the CMS hearing officer discussed the section 424.535(a)(9) violation as it pertained to factors (A) and (B) as follows: 

The conduct that led to the revocation of [Petitioner’s] Medicare enrollment under § 424.535(a)(9) was his failure to timely report his suspended Ohio medical license to CMS or [the CMS contractor] as required under § 424.516.  Regarding factors (A) and (B), CMS considers this conduct to be very serious and poses a significant threat to the integrity of the program.  An enrolled individual is ultimately responsible for furnishing complete and accurate information to CMS, as well as understanding the requirements of their ongoing participation in the Medicare program.  Failure to understand or comply with program requirements is very serious because CMS relies upon the most recent information reported to CMS by providers and suppliers to help confirm that they still meet all Medicare requirements and that Medicare payments are made correctly.  Inaccurate or outdated information puts the Medicare Trust Funds at risk.  It necessarily follows that the submission of false information or the withholding of information relevant to the supplier’s enrollment eligibility represents a significant program integrity risk (see 84 Fed. Reg. at 48,726-30).

CMS Ex. 6 at 9.  For factor (C), the CMS hearing officer referenced the underlying misconduct that resulted in the suspension of Petitioner’s medical license:  “Unlicensed practitioners, especially those whose medical licensure is suspended for inappropriate and/or excessive prescribing of controlled substances, present a very clear threat to the health and safety of Medicare beneficiaries and the integrity of the Medicare program.”  CMS Ex. 6 at 9.  The hearing officer also stated the following as to why the misconduct

Page 16

that led to Petitioner’s license suspension shows that it is detrimental to the best interests of the Medicare program:  

The jeopardy to the safety of beneficiaries is highlighted by the [State Medical] Board’s basis for suspending [Petitioner’s] medical license when it determined that [Petitioner] engaged in the inappropriate and/or excessive prescribing of controlled substances and failing to recognize the signs of addiction and/or failing to make the appropriate referrals and/or failing to follow-up on referrals (see [CMS] Exhibit 1).

According to the [State Medical] Board, from on or about May 2011 through on or about October 2019, [Petitioner] prescribed multiple controlled substances to a patient who presented with prior history of attending Narcotics Anonymous.  [Petitioner] repeatedly failed to recognize the signs of misuse and/or addiction, including the patient taking more than prescribed, requests for early refills, complaints of poor pain management, requests for specific brands and never attaining pain relief, then continued to prescribe lower doses of methadone when the patient tested positive for cocaine (see [CMS] Exhibit 1).  During this same timeframe, [Petitioner] did not recognize the signs and symptoms or a patient who self-initiated changes to her medication regimen, admitted taking medication from a friend, and expressed a desire to wean from opioids (see [CMS] Exhibit 1).  In caring for a third patient, from on or about February 2013 through on or about August 2019, [Petitioner] failed to recognize the signs and symptoms of addiction, including multiple reports of stolen pills, reports of accidentally flushed meds, and thefts reported to police but no incident reports.  Furthermore, [Petitioner] failed to pursue or maintain relationship with providers he referred the patient to and not only failed to take appropriate action for this patients’ suspicious reports of motor vehicle accidents, stolen medications, and law enforcements incidents, but [Petitioner] increase[d] the patients’ opioid doses (see [CMS] Exhibit 1).  With regards to a fourth patient, from on or about June 2017 through on or about December 2019, [Petitioner] failed to recognize signs and symptoms of addiction including repeated request for early refills and self-administering additional doses of

Page 17

opiates.  [Petitioner] continued to prescribe prescriptions to the patient even when the patient reported relief despite an increase in the patients’ narcotic.  [Petitioner] did not follow up with the patients’ specialists and failed to obtain or chart any copies of available medical records of detailed summaries of prior chronic pain treatment or any information regarding the underlying condition of the chronic pain (see [CMS] Exhibit 1).  From on or about January 2018 through on our about October 2019, [Petitioner] failed to reduce or change his approach of opiate prescribing despite a fifth patient expressing a desire to reduce pain medication.  Even with the patient complaining of fatigue and falling asleep while standing, [Petitioner] continued to prescribe the opiates.  After a staff member referred the patient to pain management and the patient was successfully weaned from opiates, [Petitioner] subsequently reinstated the opiate medication (see [CMS] Exhibit 1).  With regards to a sixth patient, from on or about June 2011 through on or about September 2019, [Petitioner] prescribed opiates though he repeatedly failed to perform or document physical exams.  [Petitioner] did not report any relief of pain, yet [Petitioner] restarted the patient on medications even after the patient was able to discontinue use for a while (see [CMS] Exhibit 1).  This type of behavior risks the health and safety of Medicare beneficiaries.  It necessarily follows that any threat to the health and safety of beneficiaries is detrimental to the best interest of the Medicare program.  CMS considers the health and safety of its Medicare beneficiaries to be of the utmost priority.

CMS Ex. 6 at 8-9.

Petitioner objects to the inclusion of his name on the CMS Preclusion List because:  CMS erroneously found that Petitioner provided medical services after his medical license suspension took effect; and CMS improperly considered Petitioner’s misconduct that resulted in the suspension of his license.  P. Br. at 15-16.

I disagree with both objections.  The hearing officer did not state that Petitioner provided medical services after the effective date of his license suspension.  In addition, under factor (C), the hearing officer has wide discretion to consider evidence that the hearing officer believes is relevant.  There can be no doubt that Petitioner’s substantial misconduct that led to the suspension of his medical license is relevant.  Petitioner’s license suspension is implicated by the section 424.535(a)(9) basis for revocation in this

Page 18

matter because Petitioner failed to inform CMS of that suspension.  Further, Petitioner engaged in improper prescribing practices over a lengthy period of time with multiple patients.  As stated above, one of the purposes of the CMS Preclusion List is to stop practitioners from prescribing medications to beneficiaries under Medicare Part D.

Further, I agree with the hearing officer that Petitioner’s failure to report the loss of his Ohio medical license is both serious and may negatively affect the Medicare program.  The hearing officer correctly concluded that the Medicare program relies on suppliers who provide timely and accurate information in relation to the items and services for which they bill Medicare.  Cf. Devine Solutions Group, DAB No. 3159 at 21 (discussing a supplier’s obligation to provide valid Medicare claim information).  While Petitioner asserts his failure to report his state suspension was merely a mistake, filing incorrect information or failing to file necessary information with the Medicare program can result in harm to the program.

Therefore, I uphold CMS’s conclusion that the underlying basis for Petitioner’s revocation of enrollment is detrimental to the best interests of the Medicare program and that CMS’s placement of Petitioner’s name on the CMS Preclusion List is appropriate.

VII.  Conclusion

I affirm CMS’s revocation of Petitioner’s enrollment in the Medicare program and CMS’s placement of Petitioner’s name on the CMS Preclusion List.