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                              Martin Jacobs, M.D., DAB CR5135 (2018)
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Martin Jacobs, M.D., DAB CR5135 (2018)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Martin Jacobs, M.D.
	(NPI: 1548285604),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-18-43Decision No. CR5135July 17, 2018

        
              
    

      DECISION
The Medicare enrollment and billing privileges of Petitioner, Martin Jacobs, M.D., are revoked pursuant to 42 C.F.R. § 424.535(a)(3) and (4).1
  The effective date of revocation is December 14, 2007.
I.  Procedural History and Jurisdiction
On March 13, 2017, Novitas Solutions/First Coast Service Options, a Medicare administrative contractor (MAC), notified Petitioner that his Medicare enrollment and billing privileges were revoked effective August 3, 2011.  The MAC stated that revocation was pursuant to 42 C.F.R. § 424.535(a)(3) and (4), based on Petitioner’s December 14, 2007 felony attempted tax evasion conviction and his failure to disclose the conviction and other final adverse actions.  The MAC further stated that revocation based on a felony conviction would normally be effective the date of the conviction, but in this case the date of conviction preceded Petitioner’s Medicare enrollment.  The MAC
Page 2
advised Petitioner that he was subject to a three-year bar to re-enrollment beginning 30 days from the postmark on the MAC’s notice letter.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 10-11.
Petitioner requested reconsideration through counsel by letter dated May 8, 2017.  CMS Ex. 1 at 15.  On August 10, 2017, a CMS hearing officer issued a reconsideration determination upholding the revocation pursuant to 42 C.F.R. § 424.535(a)(3) and (4).  CMS Ex. 1 at 1-9.
Petitioner filed a request for hearing on October 10, 2017.  I was assigned the case on October 26, 2017, and I issued an Acknowledgment and Prehearing Order.  There is no dispute that Petitioner’s request for hearing was timely, and I have jurisdiction.
CMS filed a motion for summary judgment and prehearing brief on November 27, 2017, with CMS Ex. 1.  On December 22, 2017, Petitioner filed, as a single document, a response in opposition to the CMS motion (P. Br.) with one exhibit, which I treat as Petitioner’s Exhibit (P. Ex.) 1.  On January 10, 2018, CMS filed a reply brief.  There have been no objections to my consideration of CMS Ex. 1 or P. Ex. 1 and both are admitted as evidence.
II.  Discussion
**A.  Applicable Law**
Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.2
 Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioner, a physician, is a supplier.
Page 3
The Act requires that the Secretary issue regulations to establish a process for enrolling providers and suppliers in Medicare, including the requirement to provide the right to a hearing and judicial review of certain enrollment determinations, such as revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505, suppliers such as Petitioner must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.
The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or its Medicare contractor may revoke an enrolled supplier’s Medicare enrollment and billing privileges and supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535.  Pursuant to 42 C.F.R. § 424.535(a)(4), CMS may revoke a supplier’s enrollment and billing privileges if CMS determines the supplier “certified as ‘true’ misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.”  Generally, when CMS revokes a supplier’s Medicare billing privileges for not complying with enrollment requirements, the revocation is effective 30 days after CMS or its contractor mails notice of its determination to the supplier.  42 C.F.R. § 424.535(g).  After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from re-enrolling in the Medicare program for one to three years.  42 C.F.R. § 424.535(c).
A supplier whose enrollment and billing privileges have been revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498.  A supplier submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a).  CMS or its contractor must give notice of its reconsidered determination to the supplier, giving the reasons for its determination and specifying the conditions or requirements the supplier failed to meet, and advising the supplier of its right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the supplier, the supplier has the right to request a hearing by an ALJ and further review by the Departmental Appeals Board (the Board).  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), 498.5(*l*)(2).  CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied.  42 C.F.R. § 498.5(*l*)(2).  A hearing on the record, also known as an oral hearing, is required under the Act.  *Crestview Parke Care Ctr. v. Thompson*, 373 F.3d 743, 748-51 (6th Cir. 2004).  The supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c).
**B.  Issues**
Whether summary judgment is appropriate;
Whether there was a basis for the revocation of Petitioner’s billing privileges and Medicare enrollment;
Page 4
The effective date of revocation, if there is a basis for revocation.
**C.  Findings of Fact, Conclusions of Law, and Analysis**
My conclusions of law are set forth in bold followed by the pertinent findings of fact and analysis.
**1.  Summary judgment is appropriate.**
CMS asserts that summary judgment is appropriate in its favor, and Petitioner opposes.  A provider or supplier denied enrollment in Medicare or whose enrollment has been revoked has a right to a hearing and judicial review pursuant to section 1866(h)(1) and (j) of the Act (42 U.S.C. § 1395cc(h)(1) and (j)) and 42 C.F.R. §§ 498.3(b)(1), (5), (6), (8), (15), (17); 498.5(*l*).  A hearing on the record, also known as an oral hearing, is required under the Act.  Act §§ 205(b), 1866(h)(1) and (j)(8) (42 U.S.C. §§ 405(b), 1395cc(h)(1) and (j)(8)); *Crestview*, 373 F.3d at 748-51.  A party may waive appearance at an oral hearing, but must do so affirmatively in writing.  42 C.F.R. § 498.66.  Petitioner has not filed a written waiver of the right to appear and present evidence.  Because Petitioner has not waived the right to oral hearing, disposition on the written record alone is not permissible unless summary judgment is appropriate.
Summary judgment is not automatic upon request, but is limited to certain specific conditions.  The Secretary’s regulations at 42 C.F.R. pt. 498 that establish the procedures to be followed in adjudicating Petitioner’s case do not establish a summary judgment procedure or recognize such a procedure.  However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  *See, e.g.*, *Ill. Knights Templar Home*, DAB No. 2274 at 3-4 (2009); *Garden City Med. Clinic*, DAB No. 1763 (2001); *Everett Rehab. & Med. Ctr.*, DAB No. 1628 at 3 (1997).  The Board also has recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  I notified the parties that I would consider whether summary judgment was appropriate consistent with Fed. R. Civ. P. 56 and related cases.  Prehearing Order para. II.D and G.   I adopted a summary judgment procedure as a matter of judicial economy and within my authority to regulate the course of these proceedings.
Summary judgment is appropriate when there is no genuine dispute as to any material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  The party requesting summary judgment
Page 5
bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  *Mission Hosp. Reg’l Med. Ctr.*, DAB No. 2459 at 5 (2012) (and cases cited therein); *Experts Are Us, Inc.*, DAB No. 2452 at 5 (2012) (and cases cited therein); *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300 at 3 (2010) (and cases cited therein); *see also Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 248 (1986).
The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differ from that used in resolving a case after a hearing.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  *Holy Cross Vill. at Notre Dame, Inc.*, DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  *Dumas Nursing & Rehab., L.P.*, DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d*,*Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 F. App’x 181 (6th Cir. 2005).
There is no genuine dispute as to any material fact in this case.  It is not disputed that on July 18, 2007, Petitioner Jacobs pleaded guilty to one count of attempting to evade or defeat his federal income tax for 2001, in violation of 26 U.S.C. § 7201, a federal felony offense, and judgment was entered against Petitioner on December 14, 2007.  CMS Ex. 1 at 153, 158-59; P. Ex. 1 at 18, 23-24 (document page counter); P. Br. at 1.  There is no dispute that Petitioner subsequently failed to disclose his felony conviction and other adverse final actions to CMS on his 2011 Medicare re-enrollment application and his 2016 Medicare revalidation application.  CMS Ex. 1 at 22-27, 166-68; P. Br. at 6-7.  The issues in this case that require resolution are issues of law related to the interpretation and application of the regulations that govern enrollment and billing privileges in the Medicare program.  Summary judgment is appropriate as to both the bases for revocation and the effective date of revocation.
Page 6
**2.  The issue for hearing and decision is whether there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges and, if there is a basis for revocation, my jurisdiction does not extend to review of whether CMS properly exercised its discretion to revoke Petitioner’s Medicare enrollment and billing privileges.**
**3.  Petitioner was convicted on December 14, 2007, pursuant to his guilty plea to attempt to evade federal income tax, in violation of 26 U.S.C. § 7201, a felony offense.**
**4.  The Secretary has determined and provided by regulation that felony financial crimes, including income tax evasion, are detrimental to the Medicare program and its beneficiaries.  42 C.F.R. § 424.535(a)(3)(ii)(B).**
**5.  Petitioner’s conviction on December 14, 2007, occurred within the ten years preceding the revocation action on March 13, 2017.**
**6.  There is a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3)****(ii)(B).**
**7.  Certifying as true information on an enrollment application or application to maintain enrollment that is misleading or false, is a basis for revocation of Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(4).**
**8.  There is a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) because Petitioner failed to list as a final adverse action his 2007 felony conviction on his 2011 Medicare enrollment application signed August 15, 2011, while certifying that the information in the application was true, correct, and complete.**
**9.  There is also a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) because Petitioner failed to list as final adverse actions his 2007 felony conviction, his Pennsylvania medical license suspension, and his prior Medicare revocation from 2008 to 2011 on his 2016 revalidation application, which was signed by Petitioner on December 21, 2016, certifying that the information in the application was true, correct, and complete.**
Page 7
**10.  Revocation of the Medicare enrollment and billing privileges of Petitioner is effective December 14, 2007, the date of Petitioner’s felony conviction.  42 C.F.R. § 424.535(g).**
**11.  I have no authority to review CMS’s determination to impose a three-year bar on Petitioner’s Medicare re-enrollment.**
**12.  Pursuant to 42 C.F.R. § 424.535(c), the three-year bar to re-enrollment began April 12, 2017.**
**a.  Facts**
The material facts are not disputed.
On July 18, 2007, Petitioner pleaded guilty to one count of attempting to evade or defeat his federal income tax in violation of 26 U.S.C. § 7201, a felony offense.  CMS Ex. 1 at 153, 158; P. Ex. 1 at 18, 23-24 (document page counter); P. Br. at 1.  On December 14, 2007, a judgment of conviction was entered against Petitioner and he was sentenced to 24 months imprisonment, to three years of supervised release following his prison term, and to pay a $5,000.00 fine.  CMS Ex. 1 at 160-63; P. Ex. 1 at 24-29 (document page counter).
On October 28, 2008, the Pennsylvania State Board of Medicine (state board) indefinitely suspended Petitioner’s medical license for a minimum of two years, retroactive to February 20, 2008, the date of Petitioner’s incarceration, based on his felony conviction.  CMS Ex. 1 at 145-50.
CMS notified Petitioner on January 27, 2010, that his Medicare billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(1) based on the suspension of his state medical license, and the effective date of revocation was February 20, 2008, which was the effective date of the license suspension by the state board.  CMS imposed a three-year re-enrollment bar against Petitioner.  CMS Ex. 1 at 13-14.
On July 8, 2010, the state board ordered a probationary reinstatement of Petitioner’s medical license.  CMS Ex. 1 at 33-40.  On about August 3, 2011, after the three-year re-enrollment bar had elapsed, Petitioner applied for re-enrollment in the Medicare program by submitting a Medicare enrollment application through the Provider Enrollment, Chain, and Ownership System (PECOS).  CMS Ex. 1 at 22-32.  The PECOS application requires providers to list all final adverse actions against them.  Petitioner listed only two adverse actions:  (1) the February 20, 2008 suspension of his Pennsylvania medical license; and (2) the revocation and three-year re-enrollment bar imposed by CMS.  CMS Ex. 1 at 23.  Petitioner did not list his 2007 felony conviction for income tax evasion.  CMS Ex. 1 at 22-38.  Petitioner submitted a certification statement dated August 15, 2011, certifying
Page 8
that the information he provided in the PECOS application was true, correct, and complete.  CMS Ex. 1 at 25-28.  CMS approved Petitioner’s Medicare re-enrollment application and granted him an effective date of enrollment of August 3, 2011.  CMS Ex. 1 at 127-28.
On December 21, 2016, Petitioner submitted a revalidation application in accordance with CMS’s five-year revalidation requirement (42 C.F.R. § 424.515).  CMS Ex. 1 at 166-68.  Section 3 of the revalidation application titled “Final Adverse Legal Actions” asks “[h]as a final adverse action ever been imposed against an applicant . . . ?”  CMS Ex. 1 at 167.  Petitioner answered “no” to this question.  CMS Ex. 1 at 167.  Thus, Petitioner failed to disclose his Pennsylvania medical license suspension, his prior Medicare revocation from 2008 to 2011, and his 2007 felony conviction.
On March 13, 2017, CMS revoked Petitioner’s Medicare enrollment and billing privileges effective August 3, 2011.  Revocation was based on Petitioner’s December 14, 2007 felony conviction and the fact he provided false or misleading information in his 2011 and 2016 enrollment and revalidation applications.  CMS Ex. 1 at 10-11.
It is undisputed that Petitioner filed both the re-enrollment and revalidation applications within ten years of his felony conviction.  There is no dispute that Petitioner failed to disclose his 2007 felony conviction on his 2011 application.  It is also undisputed Petitioner failed to disclose on his 2016 Medicare revalidation application his Pennsylvania medical license suspension, his prior Medicare revocation from 2008 to 2011, and his 2007 felony conviction.  Petitioner certified both applications to be “true, correct, and complete.”  CMS Ex. 1 at 22-28, 166-68; P. Br. at 6-7.
**b.  Analysis**
There is a basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3).  Section 424.535(a)(3) provides in pertinent part:
(a) *Reasons for revocation.* CMS may revoke a currently enrolled provider or supplier’s Medicare billing privileges and any corresponding provider agreement or supplier agreement for the following reasons:
* * * *
(3) *Felonies.* (i) The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a Federal or State felony offense that
Page 9
CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.
(ii) Offenses include, but are not limited in scope or severity to—
* * * *
(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.
42 C.F.R. § 424.535(a)(3)(ii)(B).
On July 18, 2007, Petitioner pleaded guilty to a felony count of attempted evasion of federal taxes.  On December 14, 2007, a judgment of conviction of attempted federal tax evasion was entered against Petitioner.  Therefore, Petitioner was convicted of a felony.  The Secretary has designated by regulation certain financial crimes, including tax evasion, to be detrimental to Medicare or its beneficiaries.  42 C.F.R. § 424.535(a)(3)(ii)(B).  On March 13, 2017, the MAC notified Petitioner that his Medicare enrollment and billing privileges were revoked based, in part, on the Petitioner’s felony 2007 conviction for attempted income tax evasion.  CMS Ex. 1 at 10-11.  The revocation action was within 10 years of Petitioner’s guilty plea on July 18, 2007, and his conviction by the acceptance of his plea and the entry of judgment on December 14, 2007.  42 C.F.R. § 1001.2.  The elements for revocation under 42 C.F.R. § 424.535(a)(3)(ii)(B) are satisfied by the undisputed facts in this case.  Accordingly, I conclude that there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3)(ii)(B).
There is also a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(4), which provides:
(a) *Reasons for revocation.* CMS may revoke a currently enrolled provider or supplier’s Medicare billing privileges and any corresponding provider agreement or supplier agreement for the following reasons:
* * * *
(4) *False or misleading information*. The provider or supplier certified as “true” misleading or false information on the enrollment application to be enrolled or maintain enrollment
Page 10
in the Medicare program. (Offenders may be subject to either fines or imprisonment, or both, in accordance with current law and regulations.).
In August 2011, Petitioner applied for re-enrollment in the Medicare program by submitting a Medicare enrollment application through PECOS.  Five years later in December 2016, Petitioner submitted a Medicare revalidation application through PECOS.  CMS Ex. 1 at 22-28, 166-68.  The regulations in effect when Petitioner filed his re-enrollment application and his revalidation application require that an application submitted must be complete, accurate, and truthful in response to all information requested.  42 C.F.R. § 424.510(d)(2)(i) (2010 & 2016).  Both the applications filed in 2011 and 2016, required that Petitioner enter information regarding final adverse actions.  Pursuant to the 2010 revision of 42 C.F.R. § 424.502 (2010) in effect on August 15, 2011, when Petitioner signed and certified the re-enrollment application:
*Final adverse* *action* means one or more of the following actions:
(1)  A Medicare-imposed revocation of any Medicare billing privileges;
(2)  Suspension or revocation of a license to provide health care by any State licensing authority;
(3)  Revocation or suspension by an accreditation organization;
(4)  A conviction of a Federal or State felony offense (as defined in § 424.535(a)(3)(i)) within the last 10 years preceding enrollment, revalidation, or re-enrollment; or
(5)  An exclusion or debarment from participation in a Federal or State health care program.
(Emphasis in original).  The definition of final adverse action remained the same under the 2016 revision of the C.F.R. in effect at the time of Petitioner’s revalidation application.  The regulations clearly required reporting of a revocation of Medicare billing privileges, suspension or revocation of a license to provide health care, and a conviction of a felony within the 10 years preceding enrollment, revalidation, or re-enrollment.  There is no dispute that Petitioner was convicted of a felony in 2007; his license to practice medicine in Pennsylvania was suspended in October 2008; and CMS revoked his billing privileges on January 27, 2010.  It is not disputed that Petitioner failed to list his 2007 felony conviction of attempted federal income tax evasion on his August
Page 11
2011 re-enrollment application.  CMS Ex. 1 at 23.  It is not disputed that Petitioner failed to list any final adverse actions in his December 2016 revalidation application.  CMS Ex. 1 at 167.  Petitioner was required to submit complete, accurate, and truthful responses to all information requested on the enrollment applications used for re-enrollment and revalidation and Petitioner certified the information as true by signing the applications.  42 C.F.R. § 424.510(d)(1)-(3).  I conclude that Petitioner’s failure to disclose all final adverse actions on both applications made those applications false and misleading as a matter of law.  Accordingly, I conclude that there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4).
Petitioner’s arguments in his defense are without merit.  Petitioner argues that 42 C.F.R. § 424.535(a)(4) requires CMS to show that Petitioner intended to mislead CMS by providing misleading or false information.  Petitioner cites no authority in support of his argument.  Petitioner argues that he did not intend to mislead CMS, an assertion I accept as true for purposes of summary judgment.  He argues that:  he was confused by the language of the application that he completed without counsel; he believed CMS knew about his license suspension in Pennsylvania which was based on his conviction; and it is conceivable that Petitioner simply made a mistake.  P. Br. at 6‐8.  I accept Petitioner’s assertions of his mental state as true for purposes of summary judgment, but this issue must be resolved against Petitioner as a matter of law.  CMS and the MAC are authorized to revoke Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) when the “provider or supplier certified as ‘true’ misleading or false information on the enrollment application.”  42 C.F.R. § 424.535(a)(4).  There is no requirement that CMS find as fact that Petitioner intended to mislead CMS by omitting information of final adverse actions.  CMS only needs to show that one who seeks to enroll or maintain enrollment certified as true, false or misleading information.  *See, e.g.*, *Sandra E. Johnson, CRNA*, DAB No. 2708 at 7, 15-16 (2016) (no intent to provide false information required; fact occurred sufficient); *Mark Koch, D.O.*, DAB No. 2610 at 4 (2014) (intent to provide false information not required, only proof that misleading or false information was certified as true is necessary).  In this case, Petitioner submitted the re-enrollment and revalidation applications without including all final adverse actions.  Whatever the reason for the omission, it caused those applications to be false and misleading and established a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4).
Petitioner argues that on January 27, 2010, CMS revoked Petitioner’s Medicare enrollment and billing privileges due to his medical license suspension.  Petitioner theorizes that CMS should have known that Petitioner’s 2007 conviction was the basis of that suspension.  Petitioner argues that by not citing the conviction as a basis for revocation in 2010, CMS exercised its discretion not to revoke on that basis and effectively waived that basis for revocation.  Petitioner cites no authority in support of its position.  P. Br. at 3-4.  Having found that there is a basis for revocation, I have no authority to review the exercise of discretion by CMS to revoke Petitioner’s Medicare
Page 12
enrollment and billing privileges, even if I accept as true that CMS knew of Petitioner’s conviction at the time of the January 27, 2010 revocation.  *Dinesh Patel, M.D.*, DAB No. 2551 at 10-11 (2013); *Fady Fayad, M.D.*, DAB No. 2266, at 16 (2009), *aff’d*, 803 F. Supp. 2d 699 (E.D. Mich. 2011); *Abdul Razzaque Ahmed, M.D.*, DAB No. 2261 at 16-17, 19 (2009), *aff’d*, 710 F. Supp. 2d 167 (D. Mass. 2010).
Petitioner’s arguments could be construed to be that the government should be estopped from proceeding with the revocation.  Estoppel is not applicable in this case.  As a matter of law, estoppel against the federal government, if available at all, is unavailable absent “affirmative misconduct,” such as fraud.  *See, e.g.*, *Pacific Islander Council of Leaders*, DAB No. 2091 at 12 (2007); *Office of Pers. Mgmt. v. Richmond*, 496 U.S. 414, 421 (1990).  There is no evidence suggesting fraud on the part of the MAC or a staff member or that there was any intent to mislead Petitioner.  Petitioner’s arguments may also be construed as a request for equitable relief, but I have no authority to grant such relief.  *US Ultrasound*, DAB No. 2302 at 8 (2010).  I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  *1866ICPayday.com, L.L.C.*, DAB No. 2289 at 14.
Accordingly, I conclude that there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) and (4).
Neither party addressed the effective date of revocation in their filings.  Section 424.535(g) of 42 C.F.R. provides for only two options:
Revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier, except if the revocation is based on Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational.  When a revocation is based on a Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational, the revocation is effective with the date of exclusion or debarment, felony conviction, license suspension or revocation . . . .
The MAC’s initial determination dated March 13, 2017, stated the revocation effective date was August 3, 2011.  The initial determination explains that because the date of Petitioner’s felony conviction preceded his re-enrollment date in the Medicare program, the MAC revoked Petitioner’s Medicare enrollment effective the date of his re-enrollment.  CMS Ex. 1 at 1, 10-11.  The regulation states that when revocation is based on a felony conviction, revocation is effective the date of conviction.  42 C.F.R.
Page 13
§ 424.535(g).  Accordingly, I conclude that December 14, 2007, the date of Petitioner’s conviction, is the correct revocation date.  *Mark A. Kabat, D.O.*, DAB No. 2875 at 9-11 (2018).
When a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from re-enrolling in the Medicare program for one to three years.  42 C.F.R. § 424.535(c).  In this case, CMS determined that a three-year bar was appropriate.  Pursuant to 42 C.F.R. § 424.535(c)(1), the re-enrollment bar begins 30 days after CMS or its contractor mails notice of the revocation.  Therefore, the three-year enrollment bar began April 12, 2017.  There is no statutory or regulatory language establishing a right to a review of the duration of the re-enrollment bar CMS imposes.  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.535(c), 424.545, 498.3(b), and 498.5.  The Board has held that the duration of a supplier’s re-enrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and, thus, is not subject to ALJ review.  *Vijendra Dave*, DAB No. 2672 at 11 (2016).
III.  Conclusion
For the foregoing reasons, Petitioner’s Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535(a)(3) and 424.535(a)(4).  The effective date of revocation is December 14, 2007.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. References are to the 2016 revision of the Code of Federal Regulations (C.F.R.), the revision in effect at the time of the initial determination in this case, unless otherwise stated. back to note 1
                      2. A “supplier” furnishes services under Medicare and includes physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.” Act § 1861(d) (42 U.S.C. § 1395x(d)). A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) (42 U.S.C. § 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(e)) of the Act. Act § 1861(u) (42 U.S.C. § 1395x(u)). The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes. back to note 2 Back to top
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