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# William G. Carruthers, RN, APRN, DAB CR6361 (2023)

----

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

## William G. Carruthers, RN, APRN(PTAN: MA5384066; NPI: 1831141795),Petitioner,

## v.

## Centers for Medicare & Medicaid Services.

### Docket No. C-23-507Decision No. CR6361September 28, 2023

### DECISION

Wisconsin Physicians Service Insurance Corporation (WPS), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, William G. Carruthers, RN, APRN, pursuant to 42 C.F.R. § 424.535(a)(12) because the State of California - Health and Human Services Agency, Department of Health Care Services (DHCS) terminated Petitioner’s California Medicaid program provider agreement.  WPS also placed Petitioner on CMS’s Preclusion list.  CMS upheld these determinations.  Petitioner requested a hearing to dispute his revocation and placement on CMS’s Preclusion List.  I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges and his placement on the Preclusion List.

### I.  Background and Procedural History

Petitioner is licensed as both a registered nurse (RN) and an advanced practice registered nurse (APRN).  CMS Ex. 7 at 2-3.

In an enrollment application submitted on or about April 5, 2022, Petitioner reported that his license had been revoked in July 2021 by the Missouri State Board of Nursing.  CMS Ex. 6 at 12.  The following month, on May 26, 2022, WPS issued an initial determination

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revoking Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(1) based on the revocation of his Missouri nursing license.  CMS Ex. 2 at 1.

Thereafter, on July 28, 2022, WPS reopened and revised its May 26, 2022 determination, at which time it replaced and superseded its previous initial determination.  CMS Ex. 5 at 1.  WPS informed Petitioner that it had revoked his enrollment, effective August 21, 2022, pursuant to 42 C.F.R. § 424.535(a)(12) (other program termination) based on his termination from the California Medicaid program and the exhaustion of his appeal rights.  CMS Ex. 5 at 1;*see*CMS Ex. 4 (DHCS’s February 2, 2022 letter notifying Petitioner of his automatic suspension from the Medi-Cal1 program based on his surrender of his registered nurse and nurse anesthetist certificates “based on one cause for out-of-state discipline by the Illinois Department of Financial and Professional Regulation Division of Professional Regulation”); *see also*CMS Ex. 3 at 5 (Stipulated Surrender of License and Order, Board of Registered Nursing, Department of Consumer Affairs, State of California, stating, “The surrender of [Petitioner’s] Registered Nurse License and Nurse Anesthetist Certificate and the acceptance of the surrendered license by the Board shall constitute the imposition of discipline against [Petitioner].”).  WPS also imposed a five-year bar to re-enrollment and placed Petitioner on CMS’s Preclusion List.  CMS Ex. 5 at 1, 3.

Petitioner submitted a declaration dated January 5, *2022*, that appears to have been executed on January 5, *2023*, that CMS construed as a timely request for reconsideration.  CMS Ex. 8; *see*CMS Ex. 9 at 3 (“CMS granted a good cause waiver for the submission of [Petitioner’s] untimely reconsideration request.”).  Petitioner acknowledged that disciplinary action had been taken against his Illinois professional licenses pursuant to a consent order.  CMS Ex. 8 at 1; *see*CMS Ex. 7.  Petitioner also acknowledged that he “decided to voluntarily surrender [his] license and certificate in California,” effective November 12, 2021, after an “Accusation was filed against [his] California license and certificate while they were in non-renewed status.”  CMS Ex. 8 at 2; *see*CMS Ex. 3.  Petitioner further acknowledged that his Missouri registered professional nurse license had been revoked based on the disciplinary action against his Illinois licenses.  CMS Ex. 8 at 2; *see*CMS Ex. 1.

On April 4, 2023, CMS issued a reconsidered determination that upheld Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(12).  In considering the factors outlined in section 424.535(a)(12), CMS explained the following:

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Regarding factor (A), [Petitioner] was terminated from the California Medicaid program because he surrendered his license to the California Board of Nursing while a disciplinary hearing was pending based on one cause for out-of-state discipline by the Illinois DPR.  Specifically, [Petitioner] admitted to diverting narcotics from his employer and using them while on duty.  [Petitioner] also admitted to allowing patients’ spouses to administer epidurals in order to allow the spouse to be involved in the patients’ birthing process.  In October 2020, [Petitioner] submitted to an evaluation where he was diagnosed with alcohol use disorder and opiate use disorder.  These are very serious and implicates patient safety and, as such, weighs in favor of the revocation of [Petitioner’s] Medicare enrollment . . . .   Regarding factor (B), CMS is unaware of actions by other State Medicaid programs.  However, this is only one factor that CMS must consider and therefore, is not dispositive in determining is a revocation is appropriate.

Regarding factor (C), CMS finds relevant that [Petitioner’s] Missouri license was also revoked, effective July 26, 2021 based on the Illinois license actions highlighted above.  Additionally, the Missouri Board order mentions that he used the fentanyl he diverted while on duty and claimed he was not a danger to patients and/or compromised care and consumed the drugs when no active patients were on deck.  At the same time, he was working 24 hours shifts on a labor and delivery unit and acknowledged a patient could have been admitted at any time.  Throughout his testimony during his disciplinary hearing, [Petitioner] deflected blame and implied the drug use was the fault of his employer for not testing him and thereby, maintain close enough supervision.  This conduct is problematic as it is indicates that [Petitioner] has failed to adhere to the highly responsible standards of nursing.  CMS also finds it relevant that the Missouri Board also found that [Petitioner’s] testimony at his disciplinary hearing reflected a lack of understanding as to the severity of his conduct and the level of risk he placed on his patients . . .  For these reasons, CMS finds that the factors listed under § 424.535(a)(12)(i) weigh in favor of the revocation of [Petitioner’s] Medicare enrollment and corresponding billing privileges.

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Pursuant to § 424.535(a)(12)(ii), CMS may not revoke a supplier’s Medicare enrollment unless and until a supplier has exhausted all applicable appeal rights.  CMS has confirmed with the California Medicaid program that [Petitioner’s] appeals rights regarding the termination have been exhausted.  Therefore, CMS upholds the revocation of [Petitioner’s] Medicare enrollment pursuant to § 424.535(a)(12).

CMS Ex. 9 at 4-5 (internal citations omitted).  CMS also upheld the five-year bar to re-enrollment.  CMS Ex. 9 at 5.

Additionally, CMS upheld Petitioner’s placement on its Preclusion List, explaining the following:

Regarding factor (A), [Petitioner’s] Medicare enrollment was revoked pursuant to § 424.535(a)(12) due to his termination from the California Medicaid program.  CMS finds that termination from a State Medicaid program to be very serious.  Specifically, [Petitioner] surrendered his nursing licenses to the California Board of Nursing based on one cause for out-of-state discipline by the Illinois DPR.  As stated above, [Petitioner] admitted to diverting narcotics from his employer and using them while on duty.  [Petitioner] also admitted to allowing patients’ spouses to administer epidurals in order to allow the spouse to be involved in the patients’ birthing process.  CMS finds this conduct to be extremely serious as it places the quality of care and safety of Medicare beneficiaries in question.

Regarding factor (B), such termination may also affect the integrity of the Medicare program.  CMS has stated that “a relevant program or license suspension warrants additional scrutiny, for the conduct behind the suspension could raise questions concerning the prospective provider’s or supplier’s ability to be a dependable Medicare participant” (see 84 Fed. Reg. 47,794, 47,831 (September 10, 2019)).  Here, [Petitioner’s] diversion of narcotics while employed as a registered nurse and allowance of family members to administer epidurals for multiple patients led to his termination from the California State Medicaid program.  This is a clear demonstration of a negative effect on the integrity of the Medicare program as it raises serious concerns

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regarding beneficiary safety and potential harm to patients under his care.

Regarding factor (C), CMS finds it pertinent that [Petitioner] diverted fentanyl from his employer for a period of 18 months and implied the employer was at fault for not testing him.  In addition, [Petitioner] admitted to letting a family member administer an epidural for multiple patients, stating it was semi-common practice, as he did not believe this practice posed a risk to patients and lacked understanding of the severity of the conduct and risk on patients.  These findings indicate that [Petitioner’s]  conduct could significantly affect the integrity of the Medicare program and the safety of Medicare beneficiaries.

In addition, CMS finds relevant that the conduct that ultimately led to [Petitioner’s] termination from the California Medicaid program reflect[s] poorly on the medical profession as a whole and jeopardizes public confidence in Medicare providers and suppliers.  CMS is committed to maintain quality service to beneficiaries enrolled in the Medicare program, and that includes the quality of care provided by its partners.  Medicare is a program for the public and public confidence is vital to its success.  [Petitioner’s] improper conduct in the practice of medicine and unprofessional conduct in the practice of medicine could significantly impact the public’s confidence in the Medicare program and its partners.  Any threat to public confidence in the Medicare program is necessarily detrimental to the best interests of the program.

After reviewing the regulatory factors, CMS finds that the conduct that led to [Petitioner’s] revocation under § 424.535(a)(12) is detrimental to the best interests of Medicare program.  As a result, CMS upholds [Petitioner’s] placement on the CMS Preclusion List, effective the date of this decision.

CMS Ex. 9 at 6-7.

Petitioner, through counsel, filed a request for an administrative law judge (ALJ) hearing on June 2, 2023.  Thereafter, the Civil Remedies Division acknowledged receipt of Petitioner’s request for hearing and issued my Standing Pre-Hearing Order (Pre-Hearing

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Order) directing the parties to file pre-hearing exchanges in accordance with specific requirements and deadlines.  CMS filed a combined motion for summary judgment and pre-hearing brief, along with nine proposed exhibits (CMS Exs. 1-9).  Petitioner filed a combined pre‐hearing brief and response to CMS’s motion for summary judgment and pre-hearing brief (P. Br.).

Petitioner reported that CMS Ex. 8 is his written direct testimony, and CMS did not request an opportunity to cross-examine Petitioner.  Therefore, a hearing for the purpose of cross-examination of witnesses is unnecessary.  Pre‐Hearing Order §§ 12-14.  I consider the record to be closed and the matter ready for a decision on the merits.2

### II.  Issue

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(12).

Whether CMS had a legitimate basis to place Petitioner on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.

### III.  Jurisdiction

I have jurisdiction to hear and decide these issues.  42 C.F.R. §§ 498.1(g), 498.3(b)(17)(i) and (20), 498.5*(l)*(2); *see also* 42 U.S.C. § 1395cc(j)(8).

### IV.  Findings of Fact, Conclusions of Law, and Analysis

                            **Petitioner is licensed as an RN and an APRN in the state of Illinois.*
*In December 2020, Petitioner entered into a consent order with the Illinois Division of Professional Regulation (DPR) that changed the status of his RN and APRN licenses from “indefinite suspension” to “indefinite probation.”  The consent order acknowledged that the indefinite suspensions were “due to the Petitioner’s diversion of narcotics and for allowing the husband of a patient to administer epidural medication to his wife.”*
*On July 26, 2021, the Missouri State Board of Nursing revoked Petitioner’s RN license “in order to safeguard the health of the public,” at which time its factual findings included that Petitioner**

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                            **“admitted to diverting fentanyl from his employer,” “did also consume the fentanyl at work during 24-hour rotations when he was present in order to perform anesthesia during labor epidurals and emergency cesarian sections,” and “confessed to allowing a family member to administer an epidural on not just one occasion, but that it was ‘a semi-common practice.’”*
*In an August 2021 Accusation, DHCS charged that Petitioner was subject to disciplinary action based on the disciplinary action imposed against his Illinois licenses related to his diversion of narcotics and allowing the husband of a patient to administer an epidural to his wife.*
*In a Stipulated Surrender of License and Order executed in October 2021, Petitioner surrendered his California RN license and nurse anesthetist certificate, both of which had not been renewed, at which time Petitioner agreed that “at a hearing, Complainant could establish a factual basis for the charges in the Accusation and that those charges constitute cause for discipline.”*
*Effective November 12, 2021, the effective date of the surrender of his California RN license and nurse anesthetist certificate, Petitioner was suspended as provider of service from the Medi-Cal program.*
*Petitioner’s suspension as a Medi-Cal provider was an “automatic suspension” pursuant to California Welfare and Institutions Code § 14043.6 and he had no appeal rights.*
*CMS had a legitimate basis under 42 C.F.R. § 424.535(a)(12) to revoke Petitioner’s Medicare enrollment and billing privileges because DHCS terminated Petitioner’s Medi-Cal participation agreement and that determination is final.*
*The length of a bar to re-enrollment is not reviewable.*
*Because Petitioner’s Medicare enrollment has been revoked and he has been barred from re-enrollment, and CMS determined that the conduct underlying his revocation is detrimental to the best interests of the Medicare program, CMS had a legitimate basis to place Petitioner on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100. **

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**CMS was authorized to revoke Petitioner’s enrollment.**

Petitioner is licensed as both an RN and APRN, and, therefore, he is a supplier for purposes of the Medicare program.  *See* 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of *Supplier*).  CMS may revoke a supplier’s Medicare billing privileges for any of the reasons stated in 42 C.F.R. § 424.535(a).  When CMS revokes a supplier’s Medicare billing privileges, CMS establishes a re-enrollment bar that lasts from one to ten years.  42 C.F.R. § 424.535(c).  Generally, a revocation becomes effective 30 days after CMS mails the initial determination revoking Medicare billing privileges.  42 C.F.R. § 424.535(g).

The Departmental Appeals Board (DAB) has explained that CMS “may have discretion to consider unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” but that “its role (and the role of [ALJs]) is limited to deciding whether CMS has a permissible ‘legal basis’ for revocation.”  *Care Pro Home Health, Inc.*, DAB No. 2723 at 9 fn.8 (2016).  Thus, the scope of my review is whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, and not whether I would make the same determination in the first instance.

Pursuant to 42 C.F.R. § 424.535(a)(12), when a supplier has been terminated by a state Medicaid program, CMS, in determining whether revocation is appropriate, is required to consider the following factors:

(A) The reason for the termination or revocation.

(B) Whether the provider or supplier is currently terminated, revoked or otherwise barred from more than one program (for example, more than one State’s Medicaid program) or has been subject to any sanctions during its participation in other programs.

(C) Any other information CMS deems relevant to its determination.

42 C.F.R. § 424.535(a)(12)(i)(A)-(C).

CMS was authorized to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(12), which states that CMS may revoke a supplier’s billing privileges if the supplier “is terminated, revoked, or otherwise barred from participation in a State Medicaid program or any other federal healthcare program.”  42 C.F.R. § 424.535(a)(12)(i).

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In December 2020, Petitioner entered into a consent order with the Illinois DPR that changed the status of his RN and APRN licenses from “indefinite suspension” to “indefinite probation.”  CMS Ex. 7 at 1.  The consent order acknowledged that the indefinite suspensions were imposed in a previous consent order “due to the Petitioner’s diversion of narcotics and for allowing the husband of a patient to administer epidural medication to his wife.”  CMS Ex. 7 at 1.

On July 26, 2021, the Missouri State Board of Nursing revoked Petitioner’s RN license “in order to safeguard the health of the public.”  CMS Ex. 1 at 6.  The order included factual findings that Petitioner “admitted to diverting fentanyl from his employer,” “did also consume the fentanyl at work during 24-hour rotations when he was present in order to perform anesthesia during labor epidurals and emergency cesarian sections,” and “confessed to allowing a family member to administer an epidural on not just one occasion, but that it was ‘a semi-common practice.’”  CMS Ex. 1 at 3.  The order further discussed that Petitioner “repeatedly attempted to deflect blame and minimize his own culpability,” and that Petitioner implied “that his drug use was the fault of his employer for not maintaining close enough supervision.”  CMS Ex. 1 at 5.

The California DHCS filed an Accusation based on the disciplinary actions taken against Petitioner’s Illinois licenses.  CMS Ex. 3 at 10.  Petitioner surrendered both his California RN license and his California nurse anesthetist certificate.  CMS Ex. 3 at 5 (“The surrender of [Petitioner’s] Registered Nurse License and Nurse Anesthetist Certificate and the acceptance of the surrendered license by the Board shall constitute the imposition of discipline against [Petitioner].”).

On February 2, 2022, DHCS issued correspondence informing Petitioner that it was terminating his Medi-Cal provider agreement.  CMS Ex. 4 at 1.  The letter informed Petitioner that DHCS had received notice that on November 12, 2021, Petitioner had surrendered his RN license and nurse anesthetist certificate “based on one cause for out-of-state discipline by the Illinois Department of Financial and Professional Regulation Division of Professional Regulation.”  CMS Ex. 4 at 1.  The letter explained that pursuant to section 14043.6 of the California Welfare Code, the Medi-Cal suspension was automatic.  CMS Ex. 4 at 1; *see*Cal. Welf. & Inst. Code § 14043.6 (“The department shall automatically suspend, as a provider in the Medi-Cal program, any individual who . . . has a license, certificate, or other approval to provide health care . . . [and] has surrendered that license, certificate, or approval while a disciplinary hearing on that license, certificate, or approval was pending.”).  The letter did not provide appeal rights.

Based on the evidence of record, I conclude that CMS was authorized to revoke Petitioner’s Medicare billing privileges because his Medi-Cal billing privileges had been terminated by the DHCS and Petitioner had no right to appeal the termination.  CMS Exs. 3, 4.

Page 10

After determining that Petitioner had been terminated by a state Medicaid program, CMS considered the additional factors at 42 C.F.R. § 424.535(a)(12)(i)(A)-(C) in determining that it would revoke his Medicare enrollment.  CMS Ex. 9 at 4-5.  CMS considered the reason for Petitioner’s Medicaid termination.  CMS Ex. 9 at 4 (discussing that the Medicaid termination resulted from a license surrender that was based on disciplinary action in Illinois based on “diverting narcotics from his employer and using them while on duty” and “allowing patients’ spouses to administer epidurals”); *see*42 C.F.R. § 424.535(a)(12)(i)(A).  CMS also acknowledged that it was unaware of other actions by State Medicaid programs, but that this single factor “is not dispositive in determining i[f] a revocation is appropriate.”  CMS Ex. 9 at 5; *see*42 C.F.R. § 424.535(a)(12)(i)(B).  CMS further found “relevant that [Petitioner’s] Missouri license was also revoked,” and discussed that the disciplinary order discussed that he had diverted fentanyl, used fentanyl while on duty, and “deflected blame and implied the drug use was the fault of his employer.”  CMS Ex. 9 at 5; *see*42 C.F.R. § 424.535(a)(12)(i)(C).

Petitioner’s arguments distill to a challenge of how CMS chose to exercise its discretion.  I cannot second-guess CMS’s unwillingness to exercise its discretion so long as CMS had a legitimate basis for its revocation action.  *See**Linda Silva, P.A.*, DAB No. 2966 at 12 (2019) (“Neither CMS’s enrollment regulations (in 42 C.F.R. Part 424) nor the administrative appeal regulations (in 42 C.F.R. Part 498) authorize an administrative law judge or the [DAB] to mitigate the consequences of a valid and binding revocation determination.”).

Petitioner argues that CMS did not properly consider the factors at 42 C.F.R. § 424.535(a)(12)(i)(A)-(C).  P. Br. at 11. Petitioner erroneously claims that his termination from Medi-Cal was not related to the disciplinary action taken against his Illinois licenses.  P. Br. at 11.  However, Petitioner *admitted*to the conduct detailed in the Accusation when he agreed to surrender his California license and certificate in lieu of the imposition of discipline.  *See*CMS Ex. 3 at 10-11 (“Cause for Discipline” discussion in the Accusation, detailing the disciplinary action taken against Petitioner’s Illinois licenses); CMS Ex. 3 at 4 (Petitioner’s acknowledgement that “Complainant could establish a factual basis for the charges in the Accusation and that those charges constitute cause for discipline,” and agreement that “by signing this stipulation he enables the Board to issue an order accepting the surrender” of his nursing license and nurse anesthetist certificate.).  Petitioner also claims that CMS, in considering the factor at 42 C.F.R. § 424.535(a)(12)(i)(C), “improperly” discussed “the substantive allegations underlying the discipline” by Illinois and Missouri.  P. Br. at 11-12.  Petitioner is mistaken.  The disciplinary action for the same conduct is relevant, and CMS is broadly authorized to consider “any other information CMS deems relevant to its determination.”  42 C.F.R. § 424.535(a)(12)(i)(C).

Petitioner also argues that he did not receive notice of the Medi-Cal termination and “was not able to contest or further appeal the decision.”  P. Br. at 12.  However, even if he did

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not receive the notice of his Medi-Cal termination, Petitioner has not identified any authority by which he could have appealed the determination, and as previously discussed, the notice explained that termination was “automatic” and lacked any appeal rights.  CMS Ex. 4.

Finally, Petitioner claims that CMS failed to consider, pursuant to 42 C.F.R. § 424.535(a)(12)(i)(C), his more than two years of sobriety and service as an Alcoholics Anonymous sponsor, that he has complied with the Illinois consent order, and that he diverted drugs because of alcohol use and opiate use disorder.  P. Br. at 12.  However, section 424.535(a)(12)(i)(C) pertains to “any other information CMS deems relevant to its determination.”  Petitioner has not identified error that *CMS* did not deem this information to be relevant to its determination.

Petitioner has not shown that CMS and its contractor were not authorized to revoke his Medicare enrollment based on 42 C.F.R. § 424.535(a)(12).  DHCS terminated Petitioner’s Medicaid agreement, and this termination is final; CMS was therefore authorized to revoke Petitioner’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(12)*. *Revocation pursuant to 42 C.F.R. § 424.535(a)(12) is authorized based on the termination of Petitioner’s Medi-Cal provider agreement.

**I cannot review the length of the bar to re-enrollment.**

Petitioner disputes the five-year bar to re-enrollment.  P. Br. at 12-13.  Pursuant to 42 C.F.R. § 424.535(c), CMS is authorized to impose a bar to reenrollment of up to ten years when it has revoked a supplier’s enrollment.  In its reconsidered determination, CMS upheld the five-year bar to reenrollment.  CMS Ex. 9 at 5.  The DAB has unambiguously explained that such a matter is beyond the scope of an ALJ’s review, stating:

A decision by CMS or its contractor about how long to bar a revoked supplier from re-enrolling in Medicare, unlike the determination to revoke the supplier’s billing privileges, is not an appealable “initial determination” under 42 C.F.R. Part 498.  *Blossomwood Medical, P.C., et al.*, DAB No. 2914, at 11 (2018); *Vijendra Dave, M.D.*[DAB No. 2672] at 8-11 [(2016)] (stating that the authority of an ALJ or the Board in a revocation appeal “does not extend to reviewing the length of the reenrollment bar imposed by CMS”).  We therefore cannot consider or act upon Petitioner’s contention that the three-year re-enrollment bar was excessive in her circumstances.

*Linda Silva, P.A.*, DAB No. 2966 at 11.  Petitioner has not identified any legal error in CMS’s imposition of the re-enrollment bar, and I may not otherwise review the duration

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of the reenrollment bar.  *See Vijendra Dave, M.D.*, DAB No. 2672 at 11 (2016) (“CMS’s determination regarding the duration of the re-enrollment bar is not reviewable.”).

**CMS was authorized to place Petitioner on its Preclusion List.**

CMS has established a single list of individuals and entities for whom Medicare Advantage plans cannot provide reimbursement for items and services they provide, and for prescribers to whom Medicare Part D plans cannot provide reimbursement for any prescriptions the individuals write.  42 C.F.R. §§ 422.222, 423.120(c)(6).  As relevant here, in order for CMS to include an individual, entity, or prescriber on its preclusion list, all of the following three requirements must be met:

(i) The [individual, entity, or prescriber] is currently revoked from Medicare for a reason other than that stated in [42 C.F.R.] § 424.535(a)(3) . . .(ii) The [individual, entity, or prescriber] is currently under a reenrollment bar under [42 C.F.R] § 424.535(c).(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph . . . , CMS considers the following factors:

(A) The seriousness of the conduct underlying the . . . revocation.(B) The degree to which the . . . conduct could affect the integrity of the [Medicare/Part D] program.(C) Any other evidence that CMS deems relevant to its determination . . . .

42 C.F.R. §§ 422.2, 423.100.

Petitioner argues that CMS did not have a legal basis to place him on its Preclusion List.  P. Br. at 13-15.  Because I have upheld Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(12), and Petitioner is subject to a five-year bar to re-enrollment, the first two requirements for inclusion on the Preclusion List are met.  42 C.F.R. §§ 422.2, 423.100.

As for the third requirement listed in 42 C.F.R. §§ 422.2 and 423.100, CMS first determined that Petitioner’s conduct underlying his revocation was detrimental to the best interests of the Medicare program.  CMS Ex. 9 at 5-7.  CMS, discussing the conduct detailed in the disciplinary action against Petitioner’s Illinois licenses that was the basis for *both* his surrender of his California license and certificate *and*the Medi-Cal termination that was based on his license and certificate surrender (e.g., diverting

Page 13

narcotics from his employer and using them while on duty, and allowing patients’ spouses to administer epidurals), determined that the conduct underlying Petitioner’s revocation was “extremely serious as it places the quality of care and safety of Medicare beneficiaries in question.”  CMS Ex. 9 at 6; *see*CMS Exs. 3, 4, 7.

In considering the second factor, CMS next determined that Petitioner’s Medi-Cal termination “may also affect the integrity of the Medicare program.”  CMS Ex. 9 at 6.  CMS explained that the diversion and use of drugs while on duty, and allowing family members to administer epidurals, “is a clear demonstration of a negative effect on the integrity of the Medicare program as it raises serious concerns regarding beneficiary safety and potential harm to patients under his care.”  CMS Ex. 9 at 6.  Inasmuch as Petitioner claims “CMS fails to cite to any specific facts in their Brief,” I note that the reconsidered determination plainly cited to facts in support of this factor.  CMS Ex. 9 at 6; *s**ee*P. Br. at 14.

Finally, with respect to the third factor, CMS discussed that Petitioner diverted fentanyl for a period of 18 months, blamed his employer for not conducting drug testing, and reported that letting family members administer epidurals was a “semi-common practice” that did not pose a risk to patients.  CMS Ex. 9 at 6.  CMS determined that “[t]hese findings indicate that [Petitioner’s] conduct could significantly affect the integrity of the Medicare program and the safety of [its] beneficiaries.”  CMS Ex. 9 at 6.  Petitioner argues that, with respect to this factor, CMS failed to consider that the “alleged conduct” occurred over two years ago, he has participated in Alcoholics Anonymous, and has complied with the probationary conditions of his license.  P. Br. at 14.  However, Petitioner does not identify any authority supporting that CMS was required to deem this information “relevant to its determination.”  42 C.F.R. §§ 422.2, 423.100.

In summary, Petitioner has not demonstrated legal error in CMS’s determination that Petitioner should be placed on its Preclusion List, and as I previously explained, I am not authorized to second-guess CMS’s refusal to exercise its discretion.  CMS had a legitimate basis to place Petitioner on its Preclusion List.  *See*42 C.F.R. § 422.2, 423.100.

### V.  Conclusion

I affirm the determinations revoking Petitioner’s Medicare enrollment and billing privileges and placing him on CMS’s Preclusion List.

----

### Endnotes

1 “Medi-Cal is California’s Medicaid program.”  *Medi-Cal*, California Department of Health Care Services, *https://www.dhcs.ca.gov/services/medi-cal/Pages/default.aspx*(last visited September 21, 2023).

2 As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS’s motion for summary judgment.

Leslie C. RogallAdministrative Law Judge