-  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 & Externships 

                      -   
                      -   
                      -   
                      -   
                      -   

# Victor Valentin, M.D., DAB CR5183 (2018)

----

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

## Victor Valentin, M.D.,	(PTANs: K9779, 03557Y/NPIs: 1083896161, 1740219203),	Petitioner	v.	Centers for Medicare & Medicaid Services.

### Docket No. C-16-778Decision No. CR5183September 6, 2018

### DECISION

Petitioner, Victor Valentin, M.D., is a physician, specializing in internal medicine, who practices in Tampa, Florida.  He participated in the Medicare program until July 31, 2016, when the Centers for Medicare & Medicaid Services (CMS) revoked his enrollment, citing 42 C.F.R. § 424.535(a)(12).  CMS took this action because the Florida Medicaid Agency terminated Petitioner’s Medicaid participation, effective February 24, 2013; Petitioner did not appeal the termination.

Petitioner Valentin appeals the revocation.

I find that CMS appropriately revoked Petitioner Valentin’s Medicare enrollment under section 424.535(a)(12) because the Florida Medicaid Agency terminated his Medicaid participation, and the state’s action has become final.  I therefore affirm CMS’s determination.

Page 2

### Background

In a revised revocation notice, dated July 1, 2016, the Medicare contractor, First Coast Service Options, Inc., revoked Petitioner Valentin’s Medicare enrollment.  CMS Ex. 10.1  As the notice letter explains, the contractor acted pursuant to 42 C.F.R. § 424.535(a)(12) because the Florida Medicaid Agency terminated Petitioner’s Medicaid participation.  CMS Ex. 10 at 1.

Petitioner requested further review.  CMS Ex. 11 at 2.  In a letter dated August 2, 2016, the contractor referred to its earlier reconsidered determination and advised Petitioner that he could appeal to an administrative law judge.  CMS Ex. 12; *see* CMS Ex. 8.  Petitioner appealed and that appeal is now before me.

**Exhibits**.  With its pre-hearing brief and motion for summary judgment (CMS Br.), CMS filed thirteen exhibits (CMS Exs. 1-13).

Petitioner submitted a one-page argument (P. Br.).  He submitted a written statement/argument, which he signed, marked as P. Ex. 1.  I will consider this a witness declaration.  He also submitted, marked as P. Ex. 2, what appears to be an email message, dated September 9 (no year), from James Gaddis of the state Medicaid agency.  He also submitted email communications, dated September 6 and 9, 2016, between himself and James Gaddis.  They are unmarked and I will consider them P. Ex. 3.

In the absence of any objections, I admit into evidence CMS Exs. 1-13 and P. Exs. 1-3.

**Witnesses**.  Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed each party to submit the written direct testimony of any proposed witnesses and, if it wished to cross-examine an opposing witness, to state so affirmatively.  Acknowledgment and Pre-hearing Order at 5 (¶¶ 8, 9) (August 5, 2016).  CMS has no witnesses.  Petitioner submits his own written declaration, but CMS does not ask to cross-examine him.  An in-person hearing would therefore serve no purpose.  *See* Acknowledgment at 5 (¶ 10).

Page 3

### Discussion

***CMS properly revoked Petitioner Valentin’s Medicare enrollment under***section424***.535(a)(12) because the Florida State Medicaid agency terminated his Medicaid billing privileges, and the state agency’s actions are final***.2

**Statute and regulations**.  CMS regulates the Medicare enrollment of providers and suppliers.  Social Security Act (Act) § 1866(j)(1)(A).  It may revoke a supplier’s enrollment in the Medicare program if a state Medicaid agency has terminated his Medicaid billing privileges and he has exhausted all applicable appeal rights.  42 C.F.R. § 424.535(a)(12).  So long as I find that these two criteria are met, I must sustain the revocation.  *Douglas Bradley, M.D.*, DAB No. 2663 at 13 (2015), *citing Letantia Bussell, M.D.*, DAB No. 2196 at 10 (2008).

**Termination of Petitioner’s Medicaid agreement**.  In a letter dated January 25, 2013, the Florida Medicaid Agency (Florida Agency for Healthcare Administration) advised Petitioner that his Medicaid provider agreement would be terminated effective 30 days from the date of the letter (which would have been February 24, 2013).  CMS Ex. 1.  The state agency acted pursuant to a provision in Petitioner’s Medicaid provider agreement, which allowed either party to terminate upon 30 days notice.  CMS Ex. 1.

Years later, the state agency authorized Petitioner’s limited participation in the Medicaid program.  In a communication dated September 9, 2016, it advised Petitioner that he could participate in one of the state’s Medicaid-contracted health plans.  The state would issue him a “no-fee-for service (or registered) Medicaid Provider ID.”  One of the health plans would have to accept him and file registration forms on his behalf.  His prior termination was not rescinded, and he remained ineligible to participate in Medicaid on a fee-for-service basis.  P. Exs. 2, 3.

Petitioner concedes that the state agency terminated his Medicaid participation and that he did not appeal or otherwise challenge the termination.  He complains that the state agency did not advise him of any appeal rights.  In fact, as the state’s notice letter explains, in Florida, a Medicaid provider agreement is voluntary, and a provider is not entitled to enrollment in that program.  Fla. Stat. § 409.907(2) (2013); *see* CMS Ex. 1 at 1; CMS Ex. 2 at 2.  Under Florida law, when the state agency terminated Petitioner’s Medicaid participation, its action was final, and Petitioner had no right to further administrative review.  Like any party to a voluntary contract, his recourse would have been to bring an action in state court.  *Diaz v. State, Agency for Health Care Admin.*, 65 So. 3d 78, 80-81 (Fla. Dist. Ct. App. 2011).

Page 4

Petitioner also attacks the state agency’s actions as unwarranted.  He admits that he was not always compliant with certain requirements of the state’s managed care program for Medicaid beneficiaries (Medipass), and that he was implicated in an investigation of fraud associated with home health agencies.  But, he asserts, his association with the home health agencies has always been reasonable and not abusive.

My authority here is limited.  I must determine whether the state Medicaid agency terminated Petitioner’s Medicaid billing privileges and, if so, whether that action has become unappealable or otherwise final under state law. * Bradley*, DAB No. 2663 at 16.  Here, no one disputes that the state agency terminated his billing privileges and that its action is final.  Petitioner may not attack collaterally, and I may not review the state’s underlying actions.  *Id*.  That the state agency eventually allowed Petitioner’s limited participation in the Medicaid program does not alter the fact that his participation was terminated, which gave CMS the authority to revoke his Medicare enrollment.

### Conclusion

I affirm CMS’s determination.  I find that CMS may revoke Petitioner Valentin’s Medicare enrollment because the Florida Medicaid Agency terminated his Medicaid participation, and that action is final.  CMS may therefore revoke his Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(12).

Carolyn Cozad HughesAdministrative Law Judge

                                              1. An earlier letter included an incorrect effective date. CMS Ex. 5. Following reconsideration, the contractor revised the effective date of the revocation from January 17, 2013, to July 31, 2016. CMS Exs. 8, 10. 
                            - back to note 1
                                                  2. I make this one finding of fact/conclusion of law to support my decision. 
                            - back to note 2