Stanley Kaplan, DAB CR6943 (2026)

DECISION

This decision affirms the Centers for Medicare & Medicaid Services (CMS) determination to revoke the Medicare enrollment and billing privileges of Dr. Stanley Kaplan (Petitioner) and to place him on the CMS Preclusion List. 

I.  Background and Procedural History

Petitioner is a physician who was licensed to practice medicine in several states.  As a physician, Petitioner participated in the Medicare program as a Part B supplier of services.  On various dates, CMS, through multiple Medicare Administrative Contractors (MACs), notified Petitioner that his Medicare enrollment and billing privileges were being revoked in New York, Florida, Ohio, Pennsylvania, New Jersey, South Carolina, and Texas due to a felony conviction in the United States District Court, Southern District of New York (District Court).  Petitioner Exhibit (P. Ex.) 3 at 2.  Petitioner was also added to the CMS Preclusion List and subjected to a 10-year reenrollment bar. Id. 

Petitioner timely filed reconsideration requests to contest the revocation of his Medicare enrollment and billing privileges.  CMS Exhibit (CMS Ex.) 4. 

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CMS issued an unfavorable Reconsideration Request Decision on September 6, 2024.  CMS Ex. 6.  The hearing officer upheld CMS’s determinations and determined that no errors were made in the revocation of Petitioner’s billing privileges or in placing Petitioner on the CMS Preclusion List.  Id. 

Petitioner timely filed a request for hearing (P. RFH) before an administrative law judge (ALJ) on November 4, 2024.  The case was assigned to former ALJ Jacinta Alves.  On November 6, 2024, the Civil Remedies Division (CRD) issued an Acknowledgement Letter, Judge Alves’ Standing Order, and the CRD Procedures (CRDP). 

On December 9, 2024, CMS filed a combined prehearing brief and a motion for summary judgment (CMS Br.) with six exhibits (CMS Exs. 1-6).  On January 15, 2025, Petitioner filed a combined prehearing brief and response to CMS’s motion for summary judgment (P. Br.). On January 29, 2025, Petitioner re-filed nine exhibits (P. Exs. 1-9), that were previously filed with the RFH. CMS filed a reply (CMS Reply Br.) on February 14, 2025. 

On December 23, 2025, this case was transferred to me for hearing and decision.1 

II.  Admission of Exhibits and Decision on the Written Record

Absent objections, P. Exs. 1-9 and CMS Exs. 1-6 are admitted into the record. 

Neither party proposed witnesses in this matter and all filing deadlines have passed.  Therefore, the record is closed. Because there is no need to conduct a hearing in this case, I will issue a decision based on the written record. Standing Order at 14; CRDP ¶ 19d.  I deny CMS’s motion for summary judgment as moot. 

III.  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)(3).
2. Whether CMS had a legitimate basis to include Petitioner on the CMS Preclusion List under 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6). 

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IV.  Jurisdiction

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

V.  Legal Authorities

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

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

VI.  Findings of Fact

Petitioner is a pulmonologist with over 17 years of experience and has been enrolled as a Medicare provider since 2010.  P. RFH. 

On August 30, 2023, Petitioner pleaded guilty to one count of securities fraud.  As a part of his plea agreement, Petitioner admitted to purchasing shares of stock based on material non-public information and benefitting approximately $472,053.61 from his actions.  CMS Ex. 1 at 1, 2.  The District Court accepted Petitioner’s plea and imposed judgment on January 5, 2024.  CMS Ex. 2.  Petitioner was sentenced to five months of incarceration and three years of supervised release upon release from imprisonment. Id. at 2, 3. Petitioner was also ordered to pay $472,053.61 in restitution.  Id. at 7. 

On January 22, 2024, National Government Services (NGS), a CMS MAC, issued notice of the revocation of Petitioner’s New York billing privileges, effective September 19,

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2023, due to his felony conviction.  Petitioner was also subject to a 10-year reenrollment bar and placement on the CMS Preclusion List.  P. Ex. 3 at 10. 

On March 22, 2024, First Coast Service Options, a CMS MAC, issued notice of the revocation of Petitioner’s Florida billing privileges, effective September 19, 2023, due to his felony conviction.  P. Ex. 3 at 6.  Petitioner was also subject to a 10-year reenrollment bar and 10 years on the CMS Preclusion List. Id. 

On March 25, 2024, CGS, a MAC, informed Petitioner that his Medicare billing privileges for his Ohio enrollment was being revoked effective September 19, 2023, due to his felony conviction.  Petitioner was also added to the CMS Preclusion List and subject to a 10-year reenrollment bar.  P. Ex. 3 at 2. 

On March 25, 2024 and April 1, 2024, Novitas Solutions, a MAC, informed Petitioner of the revocation of his Medicare billing privileges for his Pennsylvania, New York, and Texas enrollments, effective September 19, 2023, due to his felony conviction.  Petitioner was also added to the CMS Preclusion List and subject to a 10-year reenrollment bar.  P. Ex. 3 at 17, 21, 29. 

On April 3, 2024, Palmetto GBA, another MAC, informed Petitioner of the revocation of his Medicare billing privileges for his South Carolina enrollment, due to his felony conviction, effective September 19, 2023.  Petitioner was also added to the CMS Preclusion List and subject to a 10-year reenrollment bar.  P. Ex. 3 at 34. 

The above-mentioned revocations were issued pursuant to 42 C.F.R. § 424.535(a)(3). 

Petitioner timely submitted a revised request for reconsideration on April 17, 2024.  An unfavorable reconsideration determination was issued on September 6, 2024.  CMS Ex. 6. 

VII.  Analysis and Conclusions of Law

1.  CMS acted within its authority in revoking Petitioner’s Medicare enrollment. 

Under 42 C.F.R. § 424.530(a)(3), CMS may deny a supplier’s enrollment in the Medicare program if the supplier was convicted of a felony offense within the preceding 10 years.  The regulations provide that a conviction takes place when a federal, state or local court has accepted a guilty plea by an individual.  42 C.F.R. § 1001.2.  It is undisputed that the District Court accepted Petitioner’s guilty plea to one count of securities fraud on January 5, 2024.  CMS Ex. 2.  Petitioner acknowledges that CMS had the authority to revoke his Medicare enrollment and to place him on the CMS Preclusion List due to his felony conviction.  P. Br. at 2.  There is substantial evidence in the record to support the

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revocation of Petitioner’s Medicare enrollment.  Petitioner is challenging the length of the reenrollment bar and the length of his placement on the CMS preclusion length. 

2.  MACs have the authority to issue revocations on behalf of CMS. 

Petitioner argues that MACs do not have the authority to issue revocations for felony convictions based on the plain language of 42 C.F.R. § 424.535(a) which states that, “CMS may revoke a currently enrolled provider or supplier’s Medicare enrollment for the following reasons. . . .”  P. RFH at 3.  Petitioner argues that MACs are not CMS and, according to the plain language of the statute, are only permitted to issue revocations involving the initial reserve of operating funds for a home health agency, not in other matters.  Id. Petitioner cites 42 C.F.R. § 424.535 (a)(11) which expressly states that MACs can revoke the billing privileges of an HHA, as opposed to the beginning of the revocation statute which states that “CMS may revoke”.  CMS argues that revoking billing privileges is necessary to carry out the functions of the Medicare program and may be delegated to a contractor under section 1874A of the Social Security Act.  CMS Br. at 13.  The Board recently addressed this argument stating that, “although 42 C.F.R. § 424.535(a) states, ‘CMS may revoke,’ the contractor’s duly delegated administrative authority is such that a revocation notice issued by a contractor represents and conveys a decision by CMS.” Brian O’Connor, DAB No. 3140 (2024).  Here, each of Petitioner’s revocations were issued by MACs and each included a reference to CMS on their respective notice letters.  P. Ex. 3.  In addition, the reconsidered determination was issued directly by CMS.  CMS Ex. 6. Consistent with prior Board decisions, I find that CMS acted within its authority in delegating its revocation authority to its contractors. 

3.  CMS has the authority to place Petitioner on its preclusion list. 

The CMS Preclusion List is comprised of individuals and entities who are precluded from receiving payment for Medicare Advantage items and services or Medicare Part D drugs furnished or prescribed to Medicare beneficiaries.  42 C.F.R. §§ 422.222, 423.120(c).  CMS may place an individual on the preclusion list if, within the preceding 10 years, the person was convicted of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.  42 C.F.R. § 424.535(a)(3)(i). CMS determined through public notice-and-comment rulemaking, that certain types of offenses are per se detrimental to the best interests of the Medicare program, and the per se detrimental offenses are enumerated in 424.535(a)(3)(ii)(A-D) and include financial crimes, such as extortion, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted. Here, it has been established that Petitioner plead guilty to one count of securities fraud, which is a financial crime and considered a per se detrimental offense. 

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CMS also determined that Petitioner’s actions were detrimental to the best interests of the Medicare program based on the facts and circumstances surrounding his felony conviction.  CMS Ex. 6 at 7. 

Petitioner does not dispute that he was convicted of a financial crime and acknowledges that CMS had the authority to place him on the CMS Preclusion List.  P. Br. at 2, 3. 

4.  CMS had the authority to place Petitioner on its preclusion list until September 20, 2033. 

An individual included on the preclusion list because of a felony conviction will remain on the list for a 10-year period, beginning on the date of the felony conviction, unless CMS determines that a shorter length of time is warranted.  42 C.F.R. § 422.22(5)(iii).  In determining whether a shorter length of time is warranted, CMS considers 1) the severity of the offense; 2) when the offense occurred; and 3) any other information CMS deems relevant to its determination.  See 42 C.F.R. § 422.22. 

Petitioner argues that he should not be placed on the preclusion list for the maximum 10 years and that the hearing officer did not adequately consider the three factors when contemplating whether a shorter preclusion period was warranted. P. Br. at 4. Specifically, Petitioner argues that CMS should have considered that Petitioner’s conviction was financial and involved no loss to the Medicare program, his lack of criminal history, and his long-time service to Medicare beneficiaries. P. Br. at 4. However, the hearing officer considered Petitioner’s arguments, but found them to be unpersuasive.  The hearing officer noted that the conduct surrounding Petitioner’s conviction was severe because he committed securities fraud and made a profit by purchasing and selling stock based on illegally obtained nonpublic information and he knew that his actions were illegal, but continued to participate for his own monetary gain.  CMS Ex. 6 at 9; CMS Br. at 20.  CMS determined that Petitioner’s conduct was “extremely dangerous” and noted Petitioner’s disregard for laws and regulations.  Id.  CMS also noted that Petitioner’s criminal conduct occurred in 2020, and stated that it called into question Petitioner’s trustworthiness, and deemed it detrimental to the best interests of the Medicare program. Id. 

Lastly, Petitioner argues that the hearing officer did not consider Petitioner’s desire to work in a medically underserved area in Arizona once his Medicare enrollment is restored.  P. Br. at 5.  The hearing officer also addressed this in the decision and noted that Petitioner had not provided evidence to support this argument. CMS Ex. 6 at 8.  In response, Petitioner provided an undated letter from the CEO of a Medical Center in Arizona stating that Petitioner would be the only full-time pulmonologist/critical care physician in the community of over 130,000 people.  P. Ex. 9.  However, based on a footnote in Petitioner’s brief this letter was provided in response to request for ALJ review, not at the reconsideration level.  P. Br. at 5. 

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Here, the hearing officer considered the necessary factors in placing Petitioner on the CMS Preclusion List and in determining that Petitioner’s felony offense was detrimental to the best interests of the Medicare program.  I find that CMS considered the three factors and the facts surrounding Petitioner’s felony conviction and did not find that a shorter length of time on the CMS preclusion list was warranted.  Therefore, I uphold CMS’s determination to include Petitioner on the CMS Preclusion List until September 20, 2033. 

5.  CMS acted within its authority in imposing a 10-year reenrollment bar. 

After an individual has had their enrollment revoked they are barred from participating in the Medicare program from the effective date of the revocation until the end of the reenrollment bar.  The reenrollment bar begins 30 days after CMS or its contractor mails notice of the revocation and lasts for a minimum of 1 year, but not greater than 10 years, depending on the severity of the basis for revocation.  42 C.F.R. § 424.535(c)(1).  Here, CMS imposed a 10-year reenrollment bar based on the severity of Petitioner’s felony conviction for securities fraud.  CMS Ex. 6 at 8-9.  The hearing officer noted that “[t]he dishonest behavior that led to [Petitioner’s] felony conviction could easily be replicated in the Medicare program regarding claims submission”.  Id.  CMS also found this type of illegal behavior to be “dangerous” and a detriment to the best interests of the Medicare program.  Id.  As noted, Petitioner is challenging the imposition of the 10-year reenrollment bar.  P. Br. at 2.  CMS argues that there is no right to appeal the length of a reenrollment bar.  CMS Br. at 18. 

Petitioner argues that the last clause of the regulation at 42 C.F.R. § 424.535(c)(1) which states, “depending on the severity of the basis for revocation” is ambiguous, and requires a fact-specific analysis of the severity of the underlying facts and basis for the revocation. P. Br. at 3.  According to Petitioner, under the Supreme Court’s decision in Loper-Bright, CMS does not have total discretion in determining the length of the reenrollment bar and that CMS must have a well-reasoned analysis to support the length of the reenrollment bar.  P. Br. at 3. 

In Loper-Bright, the Supreme Court overturned the principle of Chevron deference in which courts gave deference to agency interpretations of ambiguity in laws enforced by the agency.  Loper-Bright Enterprises vs. Raimondo, 603 U.S. at 412, 413 (2024).  The Supreme Court held that under the Administrative Procedures Act (APA) courts must exercise independent judgment and “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”  Id. at 413. 

The Board has addressed the Loper-Bright case stating, “the degree of deference which courts accord to various agency pronouncements concerning the meaning of applicable statutes and regulations is certainly a complex and evolving area of law, but it need not

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long detain us here.”  Robert Kevin Lynch, D.O., DAB No. 3198 (2025), citing Orton Motor Co., DAB No. 2717, at 6 (2016), aff’d, 884 F.3d 1205 (D.C. Cir. 2018).  “The Board is not a federal court; it is an ‘appellate adjudicative body in an administrative appeal process.’”  Id.  Thus, “[w]hile the various court approaches to reviewing agency action inform our thinking, they do not directly apply to our role.”  Id. 

Petitioner claims that the regulation is ambiguous but does not explain or analyze how the phrase is unclear.  Here, despite Petitioner’s claim, there is no ambiguity in the regulation.  Granting CMS the authority to impose a reenrollment bar ranging from one to ten years does not constitute ambiguity.  Therefore, the Loper-Bright decision does not impact the Board’s previous rulings on this matter.  Furthermore, I do not have authority to invalidate regulatory provisions based on Constitutional challenges.  45 C.F.R. § 150.403. 

The Board has repeatedly ruled that the duration of a reenrollment bar is not an initial determination subject to review by the ALJ or the Board. Salman M. Akbar, M.D., DAB No. 3227 (2026).  An ALJ is authorized to review CMS’s initial determination to “revoke a . . . supplier’s Medicare enrollment.”  42 C.F.R § 498.3(b)(17).  However, the determination of the reenrollment bar is not considered an initial determination and is not subject to review by an ALJ.  42 C.F.R. § 498.3(b), (d).  “An appealable determination to revoke a supplier’s enrollment, and a decision about how long the revoked supplier must wait before being allowed to apply for reentry to the program, are factually distinct matters governed by different legal requirements.” Vijendra Dave, M.D., DAB No. 2672 at 10 (2016). 

VIII.  Conclusion

For the foregoing reasons, I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) and uphold Petitioner’s inclusion on the CMS Preclusion List.