Skip to main content


U.S. flag
      An official website of the United States government
              Here’s how you know
        Here’s how you knowDot gov**Official websites use .gov**
                 A **.gov** website belongs to an official government organization in the United States.
                  HTTPS**Secure .gov websites use HTTPS**
                 A **lock** (A locked padlock) or **https://** means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites. 
  Menu Close
          HHS Search block
    Search
        








  
  
    

  
      

                                      About HHS
    
                        
                              
      
      
      Programs & Services
    
                        
                              
      
      
      Grants & Contracts
    
                        
                              
      
      
      Laws & Regulations Breadcrumb
    Home
                              About
                              Agencies
                              DAB
                              Decisions
                              ALJ Decisions
                              2022
                              Stephen Daniel Sasser, M.D., DAB CR6190 (2022)
 Navigate to:
  Departmental Appeals Board (DAB)
    
                                                  
                                                    
            
      
      
      
      About DAB
                                            
            
            Organizational Overview
    
                                                  
                              
            
      
      
      
      Who are the Judges?
    
                                                  
                              
            
      
      
      
      DAB Divisions
    
                                                  
                              
            
      
      
      
      Contact DAB
    
                                                  
                                                    
            
      
      
      
      Filing an Appeal Online
                                            
            
            DAB E-File
    
                                                  
                              
            
      
      
      
      Medicare Operations Division (MOD) E-File
    
                                                  
                                                    
            
      
      
      
      Different Appeals at DAB
                                            
            
            Appeals to DAB Administrative Law Judges (ALJs)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Procedures
    
                                                                
                                                    
            
      
      
      
      Appeals to Board
                          
            
            Practice Manual
    
                                                  
                              
            
      
      
      
      Guidelines
    
                                                  
                              
            
      
      
      
      Regulations
    
                                                  
                              
            
      
      
      
      National Coverage Determination Complaints
    
                                                                
                                                    
            
      
      
      
      Appeals to the Medicare Appeals Council (Council)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Fully Integrated Duals Advantage (FIDA) Demonstration Project
    
                                                  
                                                    
            
      
      
      
      Alternative Dispute Resolution Services
                                            
            
            Sharing Neutrals
    
                                                  
                              
            
      
      
      
      ADR Training
    
                                                  
                              
            
      
      
      
      Other ADR Services
    
                                                  
                                                    
            
      
      
      
      DAB Decisions
                                            
            
            Board Decisions
    
                                                  
                              
            
      
      
      
      DAB Administrative Law Judge (ALJ) Decisions
    
                                                  
                              
            
      
      
      
      Medicare Appeals Council (Council) Decisions
    
                                    
                              
            
      
      
      
      Stakeholder Feedback
    
                                                  
                                                    
            
      
      
      
      Careers
                                            
            
            Open Career Opportunities
    
                                                  
                              
            
      
      
      
      Internships & ExternshipsText resize icon

                    




Stephen Daniel Sasser, M.D., DAB CR6190 (2022)








  
  
    

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





Stephen Daniel Sasser, M.D.,
(NPI: 1841581600)
(PTANs: NN7254A, PVM0622, 370128FEM, 777489, 777490)
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-21-408Decision No. CR6190November 15, 2022

        
              
    

      DECISION

Petitioner, Stephen Daniel Sasser, M.D., was enrolled in the Medicare program as a supplier of services.  The Centers for Medicare & Medicaid Services (CMS), through a Medicare Unified Program Integrity Contractor (UPIC) requested that Petitioner produce medical records for 20 patients for whom claims for durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) had been submitted to Medicare.  Medicare records indicated that Petitioner was the ordering physician for the DMEPOS items.  Petitioner did not produce the requested records.  On that basis, CMS revoked Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) and imposed a 10-year reenrollment bar.  Petitioner now appeals.

I affirm CMS’s determination.  I find that CMS is authorized to revoke Petitioner’s Medicare privileges because CMS records show that Petitioner ordered DMEPOS items for the patients identified in the record requests but did not maintain medical records for those patients and could not supply those records when the UPIC requested them.  Petitioner did not prove that he never treated the patients at issue.  I have no authority to review the length of the reenrollment bar.

**Page 2**

I.    Background and Procedural History

Petitioner is a physician who was enrolled as a Medicare supplier in North Carolina and Pennsylvania.  CMS Exhibit (Ex.) 1 at 1, 5.  In a letter dated December 11, 2019, the UPIC requested that Petitioner provide medical records for 20 Medicare beneficiaries for dates of service between January 1, 2016 and May 21, 2019.  CMS Ex. 2 at 3, 6.1  The UPIC mailed the letter to P.O. Box 40908, Fayetteville, NC 28309.  *Id.* at 1, 3.  The mail was returned to the UPIC as undeliverable.  CMS Ex. 5 at 1.  Prior to May 28, 2020, the Fayetteville NC address was entered in CMS’s Provider Enrollment, Chain, and Ownership System (PECOS) as the correspondence address for Petitioner’s North Carolina enrollment.  CMS Ex. 1 at 2.

The UPIC sent a follow-up letter, dated July 15, 2020, to Petitioner at 1 CVS Drive # MC2295, Woonsocket, RI 02895.  CMS Ex. 4 at 2.  The Woonsocket RI address was entered in PECOS as Petitioner’s correspondence address for dates after May 28, 2020.  CMS Ex. 1 at 2.  The July 15 letter warned that, if Petitioner failed to provide the previously requested documentation by July 30, 2020, Petitioner’s Medicare enrollment would be subject to revocation.  CMS Ex. 4 at 2.  The UPIC sent the letter via overnight delivery and the tracking information indicates that it was delivered and signed for (by someone other than Petitioner) on July 16, 2020.  CMS Ex. 5 at 6.

The UPIC sent a similar record request letter, dated February 7, 2020, to Petitioner via overnight delivery at 1751 Earl L Core Road, Morgantown, WV 26505.  CMS Ex. 6 at 1, 3.  The Morgantown WV address was entered in PECOS as the correspondence address for Petitioner’s Pennsylvania enrollment.  CMS Ex. 1 at 6.  Tracking information for the February 7 letter indicates that it was delivered and signed for (by someone other than Petitioner) on February 10, 2020.  CMS Ex. 5 at 2.

In a letter dated August 31, 2020, Palmetto GBA (Palmetto), a Medicare administrative contractor covering enrolled suppliers in North Carolina, advised Petitioner that his Medicare privileges were revoked, effective September 30, 2020.  CMS Ex. 7 at 1-3.  In a letter dated September 3, 2020, Novitas Solutions (Novitas), a Medicare administrative contractor covering enrolled suppliers in Pennsylvania, advised Petitioner that his Medicare privileges were revoked, effective October 3, 2020.  CMS Ex. 7 at 4-7.  Each letter explained that the contractor revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(10), because, when asked to do so, he did not provide medical records for 20 Medicare beneficiaries for whom he had ordered DMEPOS items.  *Id.*at 1, 4.  Failing to provide access to the requested documentation violates 42 C.F.R.

**Page 3**

§ 424.516(f).  *Id*.  Each letter stated that CMS had imposed a 10-year reenrollment bar, pursuant to 42 C.F.R. § 424.535(c).  *Id.*at 2, 6.

Petitioner requested reconsideration.  CMS Ex. 8.  In a reconsidered determination dated December 4, 2020, a CMS hearing officer upheld the revocation.  Docket Entry # 1a in the Departmental Appeals Board (DAB) Electronic Filing System (E-File).

Petitioner timely requested a hearing before an administrative law judge.  The Civil Remedies Division acknowledged receipt of Petitioner’s hearing request and issued my Standing Prehearing Order (Prehearing Order).  Consistent with the Prehearing Order, CMS submitted a motion for summary judgment (CMS Br.) and nine exhibits (CMS Exs. 1-9).  CMS did not propose to call any witnesses.  Petitioner submitted his prehearing brief opposing CMS’s motion for summary judgment (P. Br.) and three exhibits (P. Exs. 1-3).  Petitioner proposed himself as a witness and offered his written direct testimony as P. Ex. 1.  CMS filed an “Objection to Petitioner’s Offer of New Evidence and . . . Reply Brief” (CMS Reply).

CMS objects to P. Exs. 2 and 3 as new evidence.  CMS Reply at 1-2.  As CMS points out, 42 C.F.R. § 498.56(e) provides that, in a Medicare enrollment appeal, a supplier may not offer new evidence for the first time at the administrative law judge level absent a showing of good cause.  Petitioner does not dispute that he did not offer P. Exs. 2 and 3 with his reconsideration request.  Nor has he argued that there is good cause for his failure to do so.  Because Petitioner has failed even to argue that there is good cause for me to admit P. Exs. 2 and 3, I find that good cause does not exist and I exclude the exhibits as required by 42 C.F.R. § 498.56(e)(2)(ii).2

Although CMS has moved for summary judgment, and Petitioner opposes the motion, this matter may be decided based on the written record without considering whether the standards for summary judgment have been met.  Prehearing Order ¶¶ 8-11; Civil Remedies Division Procedures § 19(d).  My Prehearing Order informed the parties that “[a]n in‐person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Prehearing Order ¶ 10.  CMS did not request to cross-examine Petitioner, the only proposed witness.  Because a hearing is unnecessary, I decide this case on the written record.  I deny CMS’s motion for summary judgment as moot.

**Page 4**

II.    Issues

The issue in this case is whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 U.S.C. § 1395u and 42 C.F.R. § 424.535(a)(10).

III.    Jurisdiction

I have jurisdiction to hear and decide this case.  *See*42 C.F.R. §§ 498.3(b)(17), 498.5(*l*)(2);*see* *also*Social Security Act § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 405.803(a), 424.545(a), 498.1(g).

IV.    Discussion

**A. Applicable Legal Authority**

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); *see also* Act § 1861(u) (42 U.S.C. § 1395x(u)).

The Medicare statute authorizes the Secretary of Health and Human Services to revoke a supplier’s Medicare enrollment (for a period of not more than one year for each act) if the supplier does not maintain, and, upon request, provide access to documentation relating to written orders or requests for payment for durable medical equipment or other items or services written or ordered by the supplier.  Act § 1842(h)(9) (42 U.S.C. § 1395u(h)(9)).  Implementing the statutory provisions, CMS’s regulations provide that CMS, acting on behalf of the Secretary, may revoke a supplier’s Medicare enrollment if the supplier fails to comply with the documentation or access requirements of 42 C.F.R. § 424.516(f).  42 C.F.R. § 424.535(a)(10).

Section 424.516(f)(2)(i) provides that a physician or an “eligible professional” who orders DMEPOS items must maintain documentation of the transactions for seven years.  “Documentation” includes written and electronic documents, including the NPI (national provider identifier) of the physician or eligible professional, relating to written orders and certifications and requests for payment for items of DMEPOS.  42 C.F.R. § 424.516(f)(2)(ii).

**Page 5**

**B.  Findings of Fact and Conclusions of Law**3

******Because I decide this case on the written record, and not on summary judgment, I need not draw all inferences in Petitioner’s favor.******Petitioner argues that I should deny CMS’s motion for summary judgment and grant him a hearing because he raises genuine disputes as to several issues of material fact.  P. Br. at 4.  However, because CMS did not request to cross-examine the only proposed witness, a hearing is unnecessary, and I decide this case based on the written record.  Deciding this case based on the written record does not deprive Petitioner of a hearing.  Courts recognize that, although a case may be decided on summary judgment or based on the written record, the administrative law judge, by considering the evidence and applying the law, 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”).

Because I decide this case on the written record, rather than on summary judgment, I am not required to construe the evidence in the light most favorable to Petitioner.  Instead, I weigh the evidence in accordance with the burdens of proof and of persuasion established in a long line of DAB cases.  More than 20 years ago, the DAB interpreted the Part 498 regulations to include evidentiary burden shifting.  Specifically, if a Medicare provider challenges the existence of a regulatory deficiency, CMS must make a prima facie case that the provider failed to substantially comply with federal requirements, and, if this occurs, the provider must then prove substantial compliance by a preponderance of the evidence.  *Hillman Rehab. Ctr.*, DAB No. 1611 (1997) (1997 WL 123708 at *6); *see* *Batavia Nursing & Convalescent Inn*, DAB No. 1911 (2004); *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d,* *Batavia Nursing & Convalescent Ctr. v. Thompson*,129 F. App’x 181 (6th Cir. 2005); *Emerald Oaks*, DAB No. 1800 (2001) (2001 WL 1688390 at *5).

The *Hillman*decision states that this scheme places the “ultimate burden of persuasion” on the provider.  1997 WL 123708 at *6.  The decision further notes that the ultimate burden of persuasion determines the outcome of a case when the evidence is in equipoise.  *Id.*at *6 n.7.  The same analysis – if CMS makes a prima facie case, then Petitioner has the ultimate burden of persuasion on the issue of compliance – applies to all cases adjudicated under the Part 498 regulations, including cases involving the revocation of enrollment in the Medicare program.  *Adora Healthcare Servs., Inc*., DAB No. 2714 at 3‐4 (2016); *Medisource Corp*., DAB No. 2011 at 2-3 (2006).  As I explain in greater detail below, even if Petitioner’s arguments and evidence might be sufficient to resist summary judgment, they are insufficient to carry the ultimate burden of persuasion.

**Page 6**

******Whether or not the UPIC sent the medical records requests to Petitioner’s correct address is not material to my decision.******In letters dated December 11, 2019, and February 7, 2020, the UPIC advised Petitioner that it was reviewing certain claims submitted to Medicare for DMEPOS items for which he was listed as the referring physician.  CMS Exs. 3, 6.  Each letter listed 20 Medicare beneficiaries, with identifying information, and asked Petitioner to produce their medical records within 45 days of the letters’ postmark dates.  CMS Ex. 3 at 6; CMS Ex. 6 at 6.  The letters warned that failing to comply with the requests could result in Petitioner’s exclusion from participation in the Medicare program.  CMS Exs. 3, 6.

Receiving no response, on July 15, 2020, the UPIC sent follow-up letters, advising Petitioner that it had not received responses to its requests for medical documentation.  CMS Ex. 4 at 2; CMS Ex. 6 at 8.  The letters warned that, if the UPIC did not receive the medical records within 15 days from the date of the letters, “administrative action, including revocation, may be taken.”  CMS Ex. 4 at 2; CMS Ex. 6 at 8.

The UPIC sent the letters to the correspondence addresses that appeared in the PECOS database associated with Petitioner’s enrollment.  CMS Ex. 1.  Petitioner denies that the addresses are (or were) accurate.  P. Ex. 1 at 1 (¶ 3).  Petitioner further states that he did not receive any of the medical record requests.  *Id.*at 2 (¶ 4).  Because Petitioner did not receive the record requests, he did not produce the requested records and Palmetto and Novitas revoked his Medicare enrollment.  *Id.*; *see also*CMS Ex. 7.

Petitioner learned of the revocation from his employer and then requested reconsideration.  P. Ex. 1 at 1 (¶ 2); *see also*CMS Ex. 8.  In its reconsidered determination, CMS rejected Petitioner’s contention that his Medicare enrollment should not be revoked because the UPIC had sent the medical records requests to incorrect addresses.  The CMS hearing officer wrote:

Pursuant to § 424.516(d) . . . a supplier is required to update reportable events in their enrollment record in certain time frame[s] provided, including the correspondence mailing address.  Although [Petitioner] argues that he changed his address on PECOS, this argument is inaccurate.  Attachment C, which [Petitioner] provides as evidence is a printout from NPPES [the National Plan and Provider Enumeration System], which is different from PECOS.  [Petitioner] was obligated to report his change of address to CMS by submitting a CMS form 855I to his Medicare Administrative Contractors (MACs), as established under § 424.516(d). . . . CMS has confirmed with Palmetto and Novitas that [Petitioner] did not submit a change of information request to either MAC[].

**Page 7**

DAB E-File, Docket Entry # 1a at 4.  I take the hearing officer’s point to be that Petitioner was responsible for the UPIC sending the records requests to the wrong addresses because he did not properly update his addresses in PECOS.

Petitioner offers argument and testimony to rebut CMS’s assertion that he did not timely update his address in PECOS.  *See*P. Br. at 7-8; *see also*P. Ex. 1 at 2-3 (¶ 8).  Ultimately, however, this is not the dispositive issue here.  The dispositive issue is whether he complied with the documentation and access requirements of section 424.516(f).  I explain below why I conclude that he did not.

******CMS made a prima facie case that Petitioner******ordered DMEPOS items for 20 Medicare beneficiaries but did not maintain documentation relating to those orders, and, when the UPIC asked him to provide that documentation, he would not or could not produce it, which violates 42 C.F.R. § 424.516(f).******CMS has produced billing records for Medicare claims of 20 beneficiaries, with names, dates of birth, and Medicare beneficiary numbers, along with the dates of service.  Each of these claims identifies Petitioner as the ordering provider by his name and NPI.  CMS Ex. 9.  Petitioner does not argue that CMS’s billing records do not accurately reflect that the claims were submitted to Medicare in the form CMS produced them.  Petitioner does not contend that he produced any records related to the identified claims.  Thus, the evidence is sufficient to establish a prima facie case that CMS had authority to revoke Petitioner’s Medicare enrollment.  Further, as I next explain, Petitioner’s evidence is insufficient to overcome CMS’s prima facie case.

******Petitioner did not prove by a preponderance of the evidence that he never treated the beneficiaries named in the medical records requests.******In his declaration, Petitioner avers that he has “no recollection of providing care to the patients in the medical record requests . . . .”  P. Ex. 1 at 3 (¶ 9).  He further states that he “never had a professional relationship with the billing providers” listed in the claims.  *Id.*(¶ 10).  In his brief, Petitioner argues that his testimony “calls into serious question whether [Petitioner] provided services to the patients at issue.”  P. Br. at 7.  Petitioner further suggests that his NPI may have been used without his consent.  *Id.*at 6.  Petitioner does not state unequivocally that he never treated the patients.

Petitioner’s testimony establishes only that he does not recall treating the patients in the record requests and that he had no “professional relationship” with the companies that billed for the items.  These facts fall short of establishing that Petitioner did not treat the patients or order DMEPOS items for them.  Indeed, Petitioner testifies that he has “seen hundreds, and possibly thousands of patients” since the dates of the claims at issue.  P. Ex. 1 at 3 (¶ 9).  This explanation allows for the possibility that Petitioner may have

**Page 8**

treated the patients at issue but can no longer recall doing so because of the passage of time and the number of patients he has seen.  At best, the testimony raises the *possibility* that Petitioner did not treat the patients.  Similarly, the fact that Petitioner had “no professional relationship” with the DMEPOS suppliers that billed for the items does not exclude the possibility that Petitioner ordered the items for the patients, and the patients chose to fill the orders with the billing suppliers without Petitioner’s involvement.  Thus, while Petitioner’s testimony may raise doubts as to whether he ordered the items described in the record requests, it does not prove by a preponderance of the evidence that he did not do so.

In similar fashion, Petitioner argues in his brief that he may have been the victim of “medical identity theft,” i.e., that the billing suppliers may have used his NPI without his knowledge and consent.  Petitioner points to cases and media reports recognizing that this type of crime is on the rise.  P. Br. at 5-6.  Again, these arguments do not prove that it is *likely* that Petitioner’s NPI was used without his permission, only that it is *possible*.

Even accepting Petitioner’s testimony and argument at face value, Petitioner has established, *at most*, that it is as likely as not that he did not treat the patients named in the record requests and that his NPI was added to the claims without his knowledge.  As the *Hillman*decision makes clear, if the evidence is in equipoise, it is the provider or supplier that bears the risk of nonpersuasion.  1997 WL 123708 at *6 n.7.  Accordingly, I find that Petitioner has failed to rebut CMS’s prima facie case.

******CMS may revoke Petitioner’s Medicare enrollment, pursuant to 42 C.F.R. § 424.535(a)(10).******Petitioner testifies that “[d]espite reasonable searches, I have no record of treating the patients at issue.”  P. Ex. 1 at 3 (¶ 9).  As I have explained above, Petitioner’s testimony does not exclude the possibility that he treated the patients but no longer recalls doing so.  Equally, Petitioner’s testimony does not exclude the possibility that he treated the patients and no longer has records related to that treatment.  If so, then Petitioner did not maintain the requested records and is now unable to produce them.  CMS is therefore authorized to revoke his Medicare enrollment.  Act § 1842(h)(9); 42 C.F.R. § 424.535(a)(10); *George M. Young, M.D.*, DAB No. 2750 at 8 (2016).

Under the regulations, the “eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”  *Young*, DAB No. 2750 at 10 (quoting 77 Fed. Reg. 25,284, 25,310 (Apr. 27, 2012)).  Petitioner’s inability to state definitively that he did not treat the patients at issue appears inconsistent with his regulatory duty to maintain and disclose documentation.  Put another way, it is difficult to see how a supplier who does not maintain sufficient records to identify whether an individual is or is not their patient could comply with the documentation rules.

**Page 9**

The DAB has consistently held that an administrative law judge’s review of CMS’s determination to revoke a supplier’s Medicare enrollment is limited to deciding whether CMS has established one or more of the grounds specified in section 424.535(a).  *William Garner, M.D.*, DAB No. 3026 at 16 (2020); *Norman Johnson, M.D.*, DAB No. 2779 at 11 (2017), and cases cited therein.  Although CMS itself has the discretion to consider “unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” I do not.  I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  *Johnson* at 11 (citing *Care Pro Home Health, Inc*., DAB No. 2723 at 9 n.8 (2016); *Abdul Razzaque Ahmed, M.D.*, DAB No. 2261 at 19 (2009), *aff’d*, *Ahmed v. Sebelius*, 710 F. Supp. 2d 167 (D. Mass. 2010)).

Here, CMS had the authority to revoke Petitioner’s Medicare enrollment under section 424.535(a)(10).  CMS produced records showing that Petitioner ordered DMEPOS items for 20 Medicare beneficiaries – his name and NPI are on each of the billing entries.  Petitioner admits that he has no records related to the listed beneficiaries and, therefore, is unable to produce the records.  Petitioner did not prove by a preponderance of the evidence that he never treated the listed beneficiaries.  Accordingly, Petitioner failed to show that he was not obligated to maintain and produce the records.  I must therefore affirm the revocation.

******Petitioner’s other arguments are not bases to reverse the revocation of his Medicare enrollment.*********a. Palmetto and Novitas properly issued initial determinations revoking Petitioner’s Medicare enrollment.***

Petitioner argues that CMS failed to prove that it authorized Palmetto and Novitas to revoke Petitioner’s Medicare enrollment.  P. Br. at 8-9.  Petitioner cites to the Medicare Program Integrity Manual (MPIM), CMS Pub. 100‐08, § 15.27.2.A,4 for the proposition that a contractor is prohibited from revoking a supplier’s Medicare enrollment under 42 C.F.R. § 424.535(a)(10) without prior approval from CMS.  P. Br. at 8.  Petitioner challenges CMS’s statement that it directed Palmetto and Novitas to issue the initial determination letters as “unsupported” and “conclusory.”  *Id.*at 9.

First, Petitioner’s argument that Palmetto and Novitas improperly revoked Petitioner’s enrollment is based on guidance published in the MPIM, rather than in a provision of the regulation itself.  *See*42 C.F.R. § 424.535(a)(10).  In light of the United States Supreme

**Page 10**

Court’s decision in *Azar v. Allina Health Servs.*, 139 S. Ct. 1804 (2019), it is unclear what effect, if any, I should give to sub-regulatory guidance promulgated via the MPIM.

Yet, even if I were to find that the MPIM guidance was binding, I would not find Petitioner’s revocation invalid.  Despite Petitioner’s attempt to cast doubt on whether CMS gave prior approval for its contractors to revoke Petitioner’s Medicare enrollment, I may presume that CMS properly discharged its duties absent “clear evidence to the contrary.”  *Douglas Bradley, M.D.*, DAB No. 2663 at 14 (2015) (quoting *United States v. Chem. Found., Inc.*, 272 U.S. 1, 14-15 (1926)).  Petitioner has presented no evidence – only argument – to the contrary.  I therefore accept CMS’s representation that it directed Palmetto and Novitas to issue the initial determinations revoking Petitioner’s enrollment.  *See*DAB E-File, Docket Entry # 1a at 3.

Finally, even if CMS had not given prior approval for the revocation, this would not alter the outcome.  That is because CMS itself, through its Provider Enrollment & Oversight Group, issued the reconsidered determination upholding the initial determinations.  DAB E-File, Docket Entry # 1a.  In interpreting an analogous provision of the regulations, the appellate decision in *John P. McDonough III, Ph.D., et al.*, endorsed the administrative law judge’s view that any defect in the initial determination based on the contractor’s lack of authority was cured when CMS itself issued the reconsidered determination.  DAB No. 2728 at 7 (2016).

***b. I have no authority to consider Petitioner’s constitutional arguments.***

Petitioner argues that he has been deprived of due process because he has a property right in continued participation in the Medicare program.  P. Br. at 9.  Many appellate decisions of the DAB hold that administrative law judges “cannot overturn a legally valid revocation on constitutional grounds.”  *Blair Allen Nelson, M.D.*, DAB No. 3024 at 9 (2020) (and cases cited therein).  Because I have concluded that CMS had a legal basis to revoke Petitioner’s Medicare enrollment, I may not reverse the revocation based on Petitioner’s constitutional arguments.

******I have no authority to review CMS’s determination to impose a 10‐year reenrollment bar.******When a supplier’s billing privileges are revoked, he may not participate in the Medicare program until the end of the reenrollment bar, which must be for a minimum of one year but no more than 10 years (except under circumstances not present here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1).  In this case, CMS imposed a 10-year reenrollment bar.  Petitioner argues that the 10-year reenrollment bar violates the regulation, which authorizes “revocation for a period of not more than 1 year for each act of noncompliance.”  42 C.F.R. § 424.535(a)(10)(ii).  In Petitioner’s view, he

**Page 11**

committed, at most, one act of noncompliance.  P. Br. at 10.  In fact, CMS has cited 20 such acts.  Failing to produce any requested document violates section 424.516(f), and here Petitioner failed to do so 20 times.  *See* *Young*, DAB No. 2750 at 9-10 (suggesting that failing to produce any requested document violates section 424.516(f)).

In any event, I have no authority to review the length of the reenrollment bar because setting the length of the reenrollment bar is not an initial determination subject to administrative review.  *V**ijendra Dave, M.D.*, DAB No. 2672 at 9-12 (2016); *accord*, *Garner*, DAB No. 3026 at 16; *Lilia Gorovits, M.D., P.C.*, DAB No. 2985 at 15-16 (2020), *aff’d, Gorovits v. Becerra*, No. 2:20-cv-01850 (E.D. Pa. May 17, 2021) (2021 WL 1962903); *see* 42 C.F.R. § 498.3(b)(17).

V.    Conclusion

CMS has established grounds for revoking Petitioner’s Medicare enrollment under section 424.535(a)(10):  he did not comply with the documentation or access requirements of section 424.516(f).  I have no authority to review the reenrollment bar imposed.

I therefore affirm CMS’s determination.

Endnotes

1  The UPIC mailed an identical letter, also dated December 11, 2019, to Petitioner at 501 S. Polar Street, Elizabethtown, NC 28337.  CMS Ex. 3 at 3.  The record does not reveal the source of this address.

2  Petitioner relies on P. Exs. 2 and 3 to support his argument that his enrollment record in PECOS included a different North Carolina address than the ones to which the UPIC sent the medical record requests.  As I discuss in more detail below, whether or not PECOS was updated with a different address for Petitioner is not dispositive of whether he complied with his duty to maintain and produce records under 42 C.F.R. § 424.516(f).  As such, the exhibits are of marginal relevance in any event.

3  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

4  MPIM section 15.27.2 was in effect at the time CMS revoked Petitioner’s Medicare enrollment.  Effective January 1, 2022, CMS reorganized the MPIM.  *See*Transmittal R11154PI, *https://www.cms.gov/files/document/r11154PI.pdf* (last visited September 2, 2022).  Currently, CMS guidance regarding supplier enrollment appears in Chapter 10 of the MPIM.
  
          /s/
        Leslie A. Weyn

                      Administrative Law Judge Back to top
    Contact HHS
    
                        
                                            
      
      
      Careers
    
                        
                                            
      
      
      HHS FAQs
    
                        
                                            
      
      
      Nondiscrimination NoticeHHS Archive
    
                        
                                            
      
      
      Accessibility Statement
    
                        
                                            
      
      
      Privacy Policy
    
                        
                                            
      
      
      Viewers & PlayersBudget/Performance
    
                        
                                            
      
      
      Inspector General
    
                        
                                            
      
      
      Web Site Disclaimers
    
                        
                                            
      
      
      EEO/No Fear ActFOIA
    
                        
                                            
      
      
      The White House
    
                        
                                            
      
      
      USA.gov
    
                        
                                            
      
      
      Vulnerability Disclosure Policy
        Sign Up for Email Updates

Receive the latest updates from the Secretary, Blogs, and News Releases.

Sign Up
  HHS Headquarters
          200 Independence Avenue, S.W.
                  Washington, D.C. 20201
                  Toll Free Call Center: 1-877-696-6775​ Disclaimer Policy: Links with this icon () mean that you are leaving the HHS website. The Department of Health and Human Services (HHS) cannot guarantee the accuracy of a non-federal website.
                  Linking to a non-federal website does not mean that HHS or its employees endorse the sponsors, information, or products presented on the website. HHS links outside of itself to provide you with further information.
                  You will be bound by the destination website's privacy policy and/or terms of service when you follow the link.
                  HHS is not responsible for Section 508 compliance (accessibility) on private websites. For more information on HHS's web notification policies, see Website Disclaimers.
 Continue
                  Go back