Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

David L. Tolliver, D.O.,
(PTAN: 005018D28),

Petitioner
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-737
Decision No. CR2281

Date: November 23, 2010

DECISION

For the reasons set forth below, I grant the Centers for Medicare & Medicaid Services
(CMS) motion for summary judgment. The undisputed evidence establishes that
Petitioner, David L. Tolliver, D.O., pled guilty to a felony offense that CMS has
determined to be detrimental to the best interests of the program and its beneficiaries and
failed to report the criminal conviction and associated loss of his medical licenses. CMS
therefore had the authority to revoke Petitioner’s enrollment and billing privileges in the
Medicare program under 42 C.F.R. §§ 424.535(a)(3) and 424.535(a)(9). I sustain the
CMS revocation of Petitioner’s enrollment effective September 18, 2008, and associated
three-year bar on re-enrollment.

I. The Regulations
Section 424.535(a) of 42 C.F.R. authorizes CMS to “revoke a currently enrolled provider

or supplier’s Medicare billing privileges and any corresponding provider agreement or
supplier agreement” for reasons including, as relevant here:
(3) Felonies. The provider, supplier, or any owner of the provider or
supplier, within the 10 years preceding enrollment or revalidation of
enrollment, was convicted of a Federal or State felony offense that CMS
has determined to be detrimental to the best interests of the [Medicare]
program and its beneficiaries.

(i) Offenses include—
* * * *
(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.

Additionally, 42 C.F.R. § 424.535(a)(9) authorizes CMS to revoke billing privileges
where a provider or supplier failed to comply with the reporting requirements including
the requirement that “[p]hysicians . . . must report . . . to their Medicare contractor . . .
[w]ithin 30 days . . . [a]ny adverse legal action.” 42 C.F.R. § 424.516(d)(1)(ii). A
“{flinal adverse action” is defined to include “[s]uspension or a revocation of a license to
provide health care by any State licensing authority.” 42 C.F.R. § 424.502.

When a revocation is based on a “felony conviction, license suspension or revocation . . .
the revocation is effective with the date of . . . felony conviction, license suspension or
revocation....” 42 C.F.R. § 424.535(g).

Providers or suppliers who have had their billing privileges revoked “are barred from
participating in the Medicare program from the effective date of the revocation until the
end of the re-enrollment bar,” which is “a minimum of | year, but not greater than 3
years depending on the severity of the basis for revocation.” 42 C.F.R. § 424.535(c).

II. Background - Undisputed Facts

Petitioner, Dr. Tolliver, is a doctor of osteopathy licensed by the Virginia Board of
Medicine, West Virginia Board of Osteopathy, and State Medical Board of Ohio.
Petitioner practices dermatology and is the founder of dermatology practices operating at
various locations in Virginia and West Virginia. P. Br. On September 4, 2007, Petitioner
pled guilty to the felony of filing a false tax return under 26 U.S.C. § 7206(1). P. Ex. 8,
9. On September 18, 2008 Petitioner was sentenced to one-month imprisonment,
followed by one-year supervised release including a five-month term of electronically
monitored home confinement, and ordered to pay the total of $30,100.00 in criminal
monetary penalties. P. Ex. 9.

On October 17, 2008, after the conviction, the West Virginia Board of Osteopathy
suspended Petitioner’s medical license. P. Ex. 14. On November 3, 2008, the Virginia
Board of Medicine suspended Petitioner’s medical license. P. Ex. 12. Then, on February
1, 2009, the State Medical Board of Ohio also revoked Petitioner’s license to practice
medicine. P. Ex. 16. According to Petitioner, “[a]t no time did Dr. Tolliver see Medicare
patients when he was not fully licensed.” P. Br. at 5. Petitioner also asserts that he
reported his conviction to “medical boards and other insurers; however, he inadvertently
ailed to notify TrailBlazer,” the Medicare contractor, of his conviction, license
suspension, or revocation. RH at 5, P. Br. at 5.

By letter dated July 13, 2009, the Medicare contractor revoked Petitioner’s Virginia
Medicare provider transaction access number (PTAN) based on his conviction, “within
the 10 years preceding enrollment or revalidation of enrollment . . . of a Federal or State
elony offense that CMS has determined to be detrimental to the best interests of the
program and its beneficiaries to continue enrollment” citing 42 C.F.R. § 424.535(a)(3),
and his failure “to report any adverse legal action to [the] Medicare contractor within 30
days” as required by 42 C.F.R. § 424.516(d)(ii). P. Ex. 1. The contractor revoked
Petitioner’s enrollment effective September 18, 2008,! the date of his conviction, and
instituted a three-year bar on re-enrollment under 42 C.F.R. § 424.535(c). P. Exs. 1, 11;
see P. Br. at 1.

The initial notice also informed Petitioner that he could appeal the decision by requesting
reconsideration within 60 days of the date of postmark, he could submit a corrective
action plan (CAP) within 30 days, or both. P. Ex. 1. As I will discuss in detail later in
this decision, Petitioner timely submitted a letter dated August 10, 2009, which I view as
both a CAP and a reconsideration, stating that Petitioner was “currently in compliance”
with all Medicare requirements (the CAP) and that his enrollment should not have been
revoked because his conviction was not detrimental to Medicare and for other reasons
(argument for reconsideration). P. Ex. 3. The contractor rejected the CAP by notice
letter dated October 15, 2009 and, rather than automatically referring Petitioner’s request
for reconsideration, the contractor again instructed Petitioner that he had 60 days to seek
reconsideration. P. Ex. 4. On December 16, 2009, Petitioner submitted another request
for reconsideration, referencing the October 15, 2009 decision upholding the revocation
(and noting that Petitioner had now obtained legal representation). On March 26, 2010,
the contractor issued an unfavorable reconsideration decision, upholding the revocation
and the three-year bar on re-enrollment. P. Ex. 6.

By letter dated May 28, 2010, Petitioner timely requested an Administrative Law Judge
(ALJ) hearing pursuant to the instructions in the reconsideration decision. This case was
assigned to me for hearing and decision pursuant to 42 C.F.R. § 498.44, which permits
designation of a Member of the Departmental Appeals Board (Board) to hear appeals
taken under Part 498.

' Petitioner’s revocation was initially to take effect November 3, 2008 but was
subsequently revised to be effective September 18, 2008. P. Exs. 1, 11.
Pursuant to my Acknowledgement and Prehearing Order, CMS submitted a motion for
summary judgment (CMS Br.) and its exhibits 1 - 12. On July 9, 2010 I conducted a
telephone conference. I summarized the maters discussed in that conference and set forth
further directives and information in my Order Following Telephone Conference (OFTC)
issued July 20, 2010, as modified August 2, 2010. In response to questions raised in the
OFTC, Petitioner submitted a letter on July 30, 2010, and CMS submitted a letter on
August 16, 2010. Petitioner then filed his response to the CMS motion for summary
judgment (P. Br.) on August 23, 2010, and his proposed exhibits 1 — 16 on September 3,
2010.

In his July 30, 2010 submission, Petitioner requested that I broaden the scope of my
review to also consider the revocation of one of his practice groups, Derm One, PLLC,
(Derm One) for which no contractor reconsideration had yet been issued. On August 10,
2010, I ordered CMS to indicate whether it consented to removing the group practice
revocation directly to the Administrative Law Judge level without waiting for a
contractor reconsideration. CMS did not consent, and I denied the request on August 10,
2010 restricting briefing to the issue of Dr. Tolliver’s individual revocation.

On October 12, 2010, Petitioner filed a motion to consolidate the Derm One group
practice revocation with the individual revocation of Dr. Tolliver, noting that the Derm
One revocation had now been upheld by the contractor after reconsideration. On October
22, 2010, I denied Petitioner’s motion to consolidate on the grounds that the issues
presented were significantly different and required full briefing which should not delay
the resolution of the present matter on which their resolution would not have material
impact. The Derm One appeal was separately docketed as C-11-29 and is not addressed
in this decision.

IIL. Issue, Findings of Fact, Conclusions of Law
A. Issues
The issues in this case are:
1. Whether I have jurisdiction to hear this case;

2. Whether, as a matter of law, CMS properly revoked Petitioners’ Medicare
enrollment and billing privileges on one or both of the asserted bases; and

3. Whether I have authority to review the imposition and length of a three-year
bar on re-enrollment in the Medicare program.
B. Applicable Standard
The Board stated the standard for summary judgment as follows:

Summary judgment is appropriate when the record shows that there is no
genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. . .. The party moving for summary judgment
bears the initial burden of showing that there are no genuine issues of
material fact for trial and that it is entitled to judgment as a matter of

law. ... To defeat an adequately supported summary judgment motion, the
non-moving party may not rely on the denials in its pleadings or briefs, but
must furnish evidence of a dispute concerning a material fact — a fact that, if
proven, would affect the outcome of the case under governing 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.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations omitted).
The role of an ALJ in deciding a summary judgment motion differs from the ALJ’s role
in resolving a case after a hearing. The ALJ should not assess credibility or evaluate the
weight of conflicting evidence. Holy Cross Vill. at Notre Dame, Inc, DAB No. 2291, at
4-5 (2009).

C. Analysis

CMS has moved for summary judgment. Although Petitioner argues against summary
judgment, he does not point to any genuine issue of material fact in controversy. The
issues before me are entirely legal in nature and consist of whether I have jurisdiction to
hear this appeal, whether the undisputed facts authorize the revocation under the
applicable regulations, and whether I may review the application or length of the re-
enrollment bar.

My findings and conclusions are in the italicized headings followed by discussions
below.

1. Ihave jurisdiction to review the CMS revocation action.

In the telephone conference, I explained to the parties that the basis of my jurisdiction
over this matter was not entirely clear to me based on the record at that point. Both
parties agreed to address the issue in writing and subsequently did so. My question arose
from the fact that Petitioner had filed a request for reconsideration of the denial of his
CAP, but I was uncertain whether Petitioner requested, within the required timeframe, a
reconsideration of the revocation notice itself, or that the contractor had issued a
reconsideration of revocation. OFTC at 3 (July 20, 2010). After considering the
arguments and reviewing the record as a whole, I conclude that I do have jurisdiction to
resolve this dispute as to whether the revocation was imposed properly as a matter of law.

The Board has explained how a CAP is distinct from the contractor reconsideration
process:

After the initial notice of revocation, the supplier has two tracks to seek to
avoid revocation and may elect to pursue either or both concurrently.
[Medicare Program Integrity Manual (MPIM)], Ch. 10, § 19.A. The
supplier, within 60 days, may request “reconsideration” of whether the
basis for revocation is erroneous or, within 30 days, it may submit a CAP to
demonstrate that it has corrected that basis. If the contractor accepts the
CAP, it notifies the supplier, and any reconsideration request is withdrawn.
If the contractor denies the CAP, the reconsideration process may proceed
to a hearing before a hearing officer, who reviews “the Medicare
contractor’s reason for imposing a. . . revocation at the time it issued the
action....” Jd. An unfavorable hearing officer decision is appealable to
an ALJ, who reviews the basis for the revocation. Jd. No provision is
made for an appeal of the contractor’s decision not to reinstate based on the
CAP. Id. The hearing officer [HO] conducting the reconsideration (and the
ALJ on appeal of the hearing officer decision) are limited to reviewing the
basis for revocation set out in the initial notice, not the merits of any
contractor decision that corrective action under a CAP was unacceptable.

DMS Imaging, Inc., DAB No. 2313, at 7-8 (2010) (footnote omitted). *

Thus, the contractor’s CAP evaluation is (1) a review of whether the supplier is currently
in compliance; (2) not an initial determination; and (3) not appealable. On the other
hand, the contractor’s reconsideration of a revocation is a determination of whether the
contractor was in error at the time the supplier was found deficient. The reconsideration
arises from the contractor’s initial determination to revoke and is appealable through the
administrative process, including the present review.

In the event that a provider or supplier requests both a CAP and a reconsideration
simultaneously, the Medicare contractor is directed to “first process and make a
determination on the CAP.” MPIM Ch. 15, § 15.25. If the contractor does not accept the
CAP, a contractor HO who was not involved in the initial determination and CAP review
is then to process the reconsideration and determine whether the initial revocation was

> Effective September 28, 2010, CMS reorganized the manual cited in the quoted text
and moved Ch. 10 to Ch 15. In the current version of the MPIM, the relevant language is
at MPIM, Ch. 15, § 15.25. http://www.cms.gov/transmittals/downloads/R354PL.pdf
justified. MPIM Ch. 15, § 15.25. “In reviewing an initial enrollment decision or a
revocation, the HO should limit the scope of its review to the Medicare contractor‘s
reason for imposing a denial or revocation at the time it issued the action and whether the
Medicare contractor made the correct decision (i.e., denial/revocation).” MPIM Ch. 15,
§ 15.25.

Upon thorough review, Petitioner’s August 10, 2009 letter, even though its subject line
includes a reference to a “CAP,” is best construed as a combined CAP and request for
reconsideration. P. Ex. 3. Specifically, in his August 10, 2009 letter, Petitioner presents
the argument that his conviction was not detrimental to the Medicare program. This
contention goes to the issue of whether the revocation was erroneous and could
reasonably be construed as a request for contractor reconsideration of whether the
revocation was imposed improperly. This argument is distinct from the claims made in
the letter as to current compliance. The contractor processed the CAP but failed to follow
the procedure set out in the manual requiring it to proceed to reconsideration once the
CAP was rejected.

In light of the contractor’s failure to provide a reconsideration that was timely requested,
I view the reconsideration decision issued March 26, 2010, after Petitioner again
requested reconsideration upon being notified of the CAP rejection (and advised in
writing, incorrectly, that he could seek reconsideration of that decision) as amounting to a
belated adverse reconsideration of Petitioner’s revocation by the contractor. It
furthermore appears that the contractor similarly construed the course of events given its
express provision of appeal rights in its reconsideration decision. P. Ex. 6. Nevertheless,
even finding favorably for Petitioner on this threshold jurisdictional issue, I can provide
him no relief based on my finding that his enrollment was properly revoked for the
reasons I explain next.

2. CMS was authorized to revoke Petitioner’s enrollment under 42 C.F.R.
§ 424.535(a)(3), based on his felony conviction.

CMS argues that the revocation is authorized because Petitioner’s conviction of a felony
charge of filing a false tax return falls within the regulatory description of “[fJinancial
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” which the Secretary has found to be categorically
detrimental to the Medicare program. CMS Br. at 8; 42 C.F.R. § 424.535(a)(3)(i)(B).
Petitioner disagrees on the ground that the felony charge of which he was convicted
“does not speak to his ability to treat patients or his ability to participate honorably in the
Medicare Program.” P. Br. at 4.

Petitioner notes that the overarching language at section 424.535(a)(3) authorizes
revocation only for conviction of a felony offense “that CMS has determined to be
etrimental to the best interests of the program and its beneficiaries.” P. Br. at 4.
Petitioner argues that CMS has not shown that it made that determination with respect to
the conduct underlying Petitioner’s conviction. He seeks to distinguish it from the
financial crimes mentioned in the regulation because he claims his crime did not include
“an element of deception” common to the detrimental financial crimes listed. Jd. He also
points out that his conviction was not program related. Jd. Further, Petitioner contends
that in filing the false tax return he “at no time . . . place[ed] the Medicare Program or any
Medicare beneficiary at financial risk.” P. Br. at 3.

I find Petitioner’s arguments unavailing for two main reasons. First, filing a false tax
return is indeed the sort of financial crime that the regulation categorizes as detrimental to
the best interest of the Medicare program in dealing with a supplier who will be
submitting claims for payment. Second, the Board has made clear that CMS may make a
determination that a particular offense is detrimental on a case-by-case basis even if it
does not fall within the categorical groups in the regulation about which the Secretary has
made blanket determinations. I discuss my reasons for each of these conclusions next.

The Board has held that the presence of an offense among those listed in section
424.535(a)(3)(i)(B) means that CMS has already determined that the offense “is
detrimental per se to the best interests of the Medicare program and its beneficiaries.”
Letantia Bussell, M.D., DAB No. 2196, at 9 (2008). The felony at issue falls squarely
under the “financial crimes” umbrella. 42 C.F.R. § 424.535(a)(3)(i)(B). An offense is a
financial crime under section 424.535(a)(3)(i)(B) if it is one of the crimes named in that
regulation (extortion, embezzlement, income tax evasion, or insurance fraud) or it is
“similar” to one or more of the named crimes. Abdul Razzaque Ahmed, M.D., DAB. No.
2261, at 7 (2009), aff'd sub nom. Ahmed v. Sebelius, 710 F.Supp.2d 167 (D.Mass. 2010).
Filing a false tax return is in the nature of or similar to income tax evasion which is
specifically listed in section 424.535(a)(3)(i)(B). The statute which he violated prohibits
“Fraud or False Statements.” 26 U.S.C. § 7206(1). The one-count to which Petitioner
pled guilty states that Petitioner “[w]illfully [made] and subscribe[d] any return,
statement, or other document, which contains or is verified by a written declaration that it
is made under the penalties of perjury, and which he does not believe to be true and
correct as to every material matter.” P. Ex. 9. Petitioner’s false statement to the federal
government resulted in his paying less than the legally required amount of income tax.
This is supported by Petitioner’s admission that he had to repay back taxes. HR at 7.
Just as the Court in Ahmed found that, under the circumstances of Dr. Ahmed’s crime,
obstruction of justice bore “the DNA” of insurance fraud, I conclude that Petitioner’s
crime partakes of the same nature as income tax evasion.

Even if I did not consider Petitioner’s crime to be tantamount to income tax evasion, I
would still conclude that it was a “financial crime” within the meaning of the regulation.
The Board explained in Ahmed that —
even if Petitioner's felony offense was not similar to one of the crimes
named in the regulation, CMS would not necessarily be precluded from
finding that it was a financial crime. Financial crimes, the regulation states,
are crimes “such as extortion, embezzlement, income tax fraud, insurance
fraud and other similar crimes” (emphasis added). The words “such as”
imply that the subsequent list of illustrative crimes, including crimes
similar to those named in the list, are not the only set of crimes that may be
considered “financial.”

DAB No. 2261, at 8-10. In upholding the Board’s decision, the Court agreed that the
regulations use “nonexclusive, illustrative language to enumerate the various felony
convictions” and should be read broadly. 710 F.Supp.2d at 174.

I also note the statement in the preamble to the revocation regulation that “[f]elonies that
we determine to be detrimental to the best interests of the Medicare program or its
beneficiaries include the following . . . financial crimes, such as... making false
statements, insurance fraud, and other similar crimes ... .” 71 Fed. Reg. at 20,768
(emphasis added). This language indicates that CMS intended the term “financial crime”
in the regulation to be read broadly to include false statements resulting in financial
benefit or loss. Petitioner’s filing of fraudulent or false tax forms as part of his criminal
conduct also constitutes the making of false statements that CMS has determined is
detrimental to the best interests of the Medicare program or its beneficiaries. On its face,
this crime calls into question whether government can rely on Petitioner’s integrity. I
therefore reject Petitioner’s contention that only financial crimes that require proof of
intentional fraudulent deception as an element may be the basis for revocation under
section 535(a)(3)(i)(B).

Finally, even if filing false tax return did not amount to a “financial crime” as identified
in the regulation, the Board has held that CMS is not limited to the list of felonies
specifically identified as detrimental to the Medicare program under section 535(a)(3)(i),
but may make a case-by-case determination that a particular crime is detrimental to the
program. Thus, the Board analyzed the regulatory language as follows:

The regulation . . . indicates that crimes detrimental to Medicare “include”
those specified in subparagraphs (A) through (D) of section
424.535(a)(3)(i). The words “include” or “including” are not terms of
limitation or exhaustion. When followed by a list of items, those words are
reasonably read as signifying that the list contains merely illustrative
examples of a general proposition or category that precedes the word and is
not intended to preclude unmentioned items from being considered
supportive or part of the general proposition or category. Puerto Rico
Maritime Shipping Auth. v. ICC, 645 F.2d 1102, 1112 n. 26 (D.C. Cir.
1981) (“It is hornbook law that the use of the word ‘including’ indicates

10

that the specified list . . . that follows is illustrative, not exclusive.”).
Hence, section 424.535(a)(3)(i) is reasonably read as setting out a non-
exhaustive list of crimes that may constitute a basis for revocation.

Fady Fayed, M.D., DAB No. 2266, at 8 (2009). Petitioner has provided no persuasive
reason to find CMS’s determination that this crime is detrimental unreasonable or
arbitrary.

Petitioner’s argument that “[t]he purpose of 42 C.F.R. § 424.535(a)(3) is not to exclude
people like Dr. Tolliver who simply relied on bad advice from professional advisors”
merely amounts to a collateral attack on the felony for which Petitioner was convicted.
HR at 7. Petitioner cites no authority to show that he may collaterally attack his criminal
conviction in this forum. As I have said in a similar case, “CMS's revocation authority
here springs from Petitioner having been ‘convicted, including guilty pleas and
adjudicated pretrial diversions,’ and I see nothing in any regulation that authorizes me to
ignore or look behind the fact of a conviction or guilty plea and entertain arguments that
essentially amount to collateral attacks on the conviction.” Ravindra Patel, M.D, DAB
CR2171 (2010). Petitioner pled guilty in exchange for the benefits of a plea agreement. I
find no authority for me to review in this forum whether the basis of the underlying
conviction to which Petitioner pled guilty can be challenged.

I also conclude that it is irrelevant that Petitioner’s crime was not committed against the
Medicare program.’ Bussell at 9. Petitioner confuses “exclusions” imposed by the
Inspector General under section 1128(a)(1) of the Act on any individual who “has been
convicted of a criminal offense related to the delivery of an item or service under title
XVIII [Medicare] or under any State health care program” with CMS’s authority to
revoke the enrollment of a Medicare supplier. See DAB No. 2261, at 13; DAB No. 2266,
at 12, 15. Petitioner identifies, and I find, nothing in the statute or regulations limiting
CMS’s authority to revoke under 42 C.F.R. § 424.535(a)(3) to felonies related to or
directly harming Medicare.

For these reasons, I conclude that CMS was authorized to revoke Petitioner’s enrollment
under 42 C.F.R. § 424.535(a)(3) based on his felony conviction.

3. CMS had the authority to revoke Petitioner’s enrollment and billing privileges
in the Medicare program under 42 C.F.R. § 424.535(a)(9) for failing to report
his criminal conviction and adverse actions against his medical license in
multiple states as required by 42 C.F.R. § 424.516(d)(1)(ii).

> CMS does not contend that Petitioner’s conviction of filing a false tax return falls under
subsection 535(a)(3)(C), a “felony that placed the Medicare program or its beneficiaries
at immediate risk, such as a malpractice suit that results in a conviction of criminal
neglect or misconduct.”
11

As previously noted, it is undisputed that Petitioner was convicted of the felony offense
of filing false tax returns, had his licenses suspended or revoked in several states and
failed to report these adverse actions to the Medicare contractor. HR at 4-5; P. Br. at 5;
see OFTC at 1. Petitioner argues that, at the time he was sentenced, the regulation
requiring him to report all adverse actions against him within thirty days was not yet in
place since it became effective only January 1, 2009.* He acknowledges, however, that
at the time of his conviction, “he was subject to a ninety day reporting period.” RH at 4;
P. Br. at 5. Since it is undisputed that he failed to report within either time frame and
both versions of the reporting requirement put Petitioner on notice that failure to report
could result in revocation, the change in the regulations is irrelevant and presents no
problem of retroactive enforcement, contrary to Petitioner’s arguments.

Petitioner next suggests that the failure to report was not intentional and he should not
therefore be bound by the resulting exclusion. Petitioner states that he “did not
intentionally conceal the tax offense” or “intentionally mislead” the contractor, rather his
“failure to notify TrailBlazer was inadvertent.” HR at 4-5; P. Br. at 5. Petitioner’s also
intimates that because he didn’t see Medicare patients while he was not fully licensed,
presumably the exclusion should be waived. /d. Petitioner’s arguments are also
irrelevant, since he cannot show that the regulations now or ever included exceptions
rom the reporting requirements on such bases.

Section 424.516(d) states that “‘[p]hysicians and nonphysician practitioners . . . must
report. . . to their Medicare contractor . . . [w]ithin 30 days . . . [a]ny adverse legal
action.” A “[f]inal adverse action” is defined to include “[s]uspension or revocation of a
license to provide health care by any State licensing authority” and 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.” 42 C.F.R. § 424.502. The
regulation does not include an intentionality requirement or provide an exception for
inadvertent failures to report. While seeing Medicare patients while he did not posses a
valid medical license would raise many additional problems, refraining from doing so
does not excuse Petitioner from complying with the reporting requirement.

In addition to his criminal conviction, Petitioner was required to report the suspensions of
his licenses in Virginia and West Virginia and the revocation of his license in Ohio, all
adverse actions. P. Exs. 9; 12-16. Petitioner failed to report these adverse actions as
required. Thus, under 42 C.F.R. § 424.535(a)(9), CMS had the authority to revoke
Petitioner’s enrollment and billing privileges in the Medicare program for failure to
report the adverse actions within thirty days even if I had not concluded, as I did above,
that Petitioner’s revocation was proper based on the felony conviction.

* The original regulation was 42 C.F.R. § 424.520(b)(2008), which was replaced by 42
C.F.R. § 424.516(d)(1)(ii), effective January 1, 2009.
12

Therefore, CMS is entitled to summary judgment based on Petitioner’s failure to report as
required under 42 C.F.R. § 424.535(a)(9) as well.

4. Petitioner does not have the right to challenge the imposition or duration of
the re-enrollment bar.

Whenever CMS has properly imposed revocation, it has the authority to determine a
length of time between one and three years during which that provider or supplier is
barred from re-enrolling. Thus, section 424.535(c) provides:

After a provider, supplier . . . has had their billing privileges revoked, they
are barred from participating in the Medicare program from the effective
date of the revocation until the end of the re-enrollment bar. The re-
enrollment bar is a minimum of | year but not greater than 3 years
depending on the severity of the basis for revocation.

Here, CMS imposed a three-year bar on Petitioner. P. Ex. 1, at 2. Petitioner takes
exception to both the application and duration of the re-enrollment bar. HR at 4-6.

In its submissions, CMS moved for dismissal on this issue, arguing that the regulations
do not permit providers or suppliers to challenge either the establishment or duration of a
re-enrollment bar. CMS Br. at 5. Petitioner, on the other hand, argues that “42 C.F.R.

§ 498.3(d) sets forth an exhaustive list of fifteen decisions that are not appealable” and
that the list “does not include the imposition of a re-enrollment bar.” P. Br. at 6.
Petitioner argues that if CMS held that the “imposition or length of a re-enrollment [bar]
was not subject to appeal, it would have included it in this exhaustive list... .” Jd.

Although Petitioner repeatedly refers to the list of actions not subject to appeal as
“exhaustive,” the regulation specifically provides that this list is not exclusive. Section
498.3(d) states “[a]dministrative actions that are not initial determination (and therefore
not subject to appeal under this part) include but are not limited to the following”
(emphasis added).

Petitioner points to no source of authority in the statute or regulation for me to review the
decision to impose a re-enrollment bar. On its face, the regulation requires CMS to
impose at least a one-year re-enrollment bar whenever billing privileges are revoked. In
light of the mandatory language, I find no basis for me to review the application of a re-
enrollment.

As far as Petitioner’s challenge to the duration of the re-enrollment bar beyond the one-
year minimum, the regulation uses discretionary language allowing CMS to impose a bar
of up to three years depending on “the severity of the basis for revocation.” 42 C.F.R.
13

§ 424.535(c). Petitioner again fails to identify authority for me to review CMS’s
assessment of the severity of the conduct and consequent selection of a re-enrollment bar
period. Section 498.3(b)(17) provides Petitioner a right to challenge whether CMS had
authority to revoke Petitioner’s enrollment as a supplier in the Medicare program, but I
do not find any similar basis for challenging CMS’s judgment as to the duration of the
resulting re-enrollment bar. In any case, as CMS pointed out, the re-enrollment bar
duration may be academic in Petitioner’s situation where the revocation was based on a
felony conviction, since a separate regulation provides CMS with authority to deny
enrollment by a supplier who has been convicted of a felony within the preceding 10
years. 42 C.F.R. § 424.530(a)(3); CMS Letter of August 16, 2010, at 6, citing 42 C.F.R.
§ 424.535(a)(3) and MPIM, § 13.2.

For the reasons explained, I conclude that I have no authority to alter the three-year re-
enrollment bar.

IV. Conclusion

The undisputed facts entitle CMS to summary judgment as a matter of law. I therefore
grant summary judgment in favor of CMS and sustain the revocation of Petitioner’s
enrollment, effective September 18, 2008.

/s/
Leslie A. Sussan
Board Member