John O. Dimowo, MD, DAB CR5994 (2021)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, revoked the Medicare enrollment and billing privileges of John O. Dimowo, MD (Dr. Dimowo or Petitioner) based on the revocation of Dr. Dimowo's Drug Enforcement Administration (DEA) Certificate of Registration.  CMS also added him to the preclusion list related to Medicare Parts C and D.  Petitioner sought review of CMS's actions.  For the reasons stated below, I affirm CMS's determinations.

I.  Background and Procedural History

Petitioner is a physician who was enrolled in the Medicare program as a supplier.  On March 15, 2021, a CMS contractor issued an initial determination revoking Petitioner's Medicare enrollment and billing privileges based on the following reason:

42 CFR § 424.535(a)(13)- Prescribing Authority

On April 20, 2020 your Drug Enforcement Administration (DEA) Certificate of Registration was revoked.

Page 2

CMS Ex. 2 at 1.  The CMS contractor also set a five-year bar to reenrollment.  CMS Ex. 2 at 3.  Finally, the CMS contractor added Petitioner's name to CMS's preclusion list, which prohibited Petitioner from receiving reimbursement for services provided through a Medicare Part C Medicare Advantage Plan and prohibited Petitioner's patients from receiving reimbursement through Medicare Part D for drugs prescribed by Petitioner.  CMS Ex. 2 at 1.

On April 9, 2021, Petitioner requested that CMS reconsider the initial determination.  In the request, Petitioner acknowledged that CMS had the discretion to revoke his enrollment and that his DEA Certificate of Registration had been revoked.  The bases for Petitioner's request were:  1) he submitted an application to obtain a new DEA Certificate of Registration; 2) he had already been excluded from participation in federal health care programs based on the same convictions on which the DEA based its revocation; 3) Petitioner had completed the term of exclusion from federal health care programs and had been reinstated, and it was not fair to prohibit Petitioner again from the Medicare program simply because the DEA revocation process took a long time to complete; 4) Petitioner was in compliance with the terms of the probation concerning his medical license; and 5) a court had expunged his criminal conviction.  Petitioner submitted seven exhibits with his reconsideration request.  CMS Ex. 3.

On May 27, 2021, a CMS hearing officer issued an unfavorable reconsidered determination.  The first eight exhibits in the hearing officer's record were Petitioner's reconsideration request and the seven exhibits Petitioner submitted with that request.  The CMS hearing officer found that Petitioner had been found guilty of seven felony counts of unlawful issuance of controlled substances in violation of California law, which were later reduced to misdemeanor violations.  The CMS hearing officer rejected Petitioner's arguments in his reconsideration request, noting that it was undisputed that the DEA revoked Petitioner's Certificate of Registration, effective April 20, 2020, and that it was irrelevant that Petitioner was obtaining a new Certificate of Registration following the issuance of CMS's initial determination because the basis for CMS's revocation was met at the time it issued the initial determination to revoke Petitioner's Medicare enrollment.  The CMS hearing officer also upheld the length of the reenrollment bar based on the circumstances surrounding Petitioner's criminal convictions and revocation of the Certificate of Registration.  Finally, the CMS hearing officer upheld the addition of Petitioner's name to CMS's preclusion list because Petitioner's Medicare enrollment had been revoked, he was under a reenrollment bar, and CMS properly determined that Petitioner's underlying conduct that led to the revocation of Medicare enrollment is detrimental to the best interests of the Medicare program.  CMS Ex. 1.

On July 26, 2021, Petitioner filed a request for hearing (RFH) to dispute the reconsidered determination along with documents marked as Attachments A through M.  On July 27, 2021, the Civil Remedies Division (CRD) acknowledged the hearing request and issued

Page 3

my Standing Prehearing Order (SPO).  In accordance with the SPO, CMS filed its prehearing exchange, which included a motion for summary judgment and brief and ten exhibits.  Petitioner filed an exchange composed of a prehearing brief (P. Br.) and one exhibit marked as Attachment N.

CMS filed an objection to the exhibits that Petitioner relied on in his brief, i.e., the attached documents to his hearing request and Attachment N.

II.  Admission of Evidence

Petitioner did not object to CMS's proposed exhibits.  Therefore, I admit CMS Exhibits 1 through 10 into the record.

CMS objected to Petitioner's proposed exhibits, which include the documents submitted with the RFH and marked as Attachments A through M, and Attachment N, which Petitioner identifies as new evidence for which there is good cause to submit at this time.  CMS argued that Petitioner did not properly mark the proposed exhibits as required by the SPO.  Further, CMS objected to Attachment N because it is not a complete and accurate document.

CMS is correct that Petitioner failed to comply with the SPO's requirements for marking exhibits.  However, I also note that CMS failed to submit the entire record before its hearing officer.

As an initial matter, it is unnecessary for me to admit RFH Attachments A, B, D, E into the record because CMS submitted those documents as CMS Exhibits 1, 2, 4, and 7.

I admit Attachments C, F, G, J into the record because these documents were part of the record on reconsideration (see CMS Ex. 1 at 2) and are rightly part of the record in this case.  Therefore, I overrule CMS's objections to those exhibits.

I exclude Attachments H, I, and K through N because they were not properly marked under the SPO as exhibits, are generally not relevant and material to the issues I must resolve in this case (see 42 C.F.R. § 498.60(b)), and/or there is no good cause to admit them now because they were not submitted with the reconsideration request.  42 C.F.R. §§ 405.803(c), (e), 498.56(e); SPO ¶ 9; CMS Ex. 2.  Therefore, I sustain CMS's objections to those exhibits.

III.  Decision on the Written Record

In the SPO, I directed the parties to submit the written direct testimony for any witnesses they wanted to offer and explained that an evidentiary hearing would only be necessary if

Page 4

a party requested to cross-examine a witness for which written direct testimony had been submitted.  SPO ¶¶ 11-14; CRD Procedures §§ 16(b), 19(b).  Because neither party submitted written direct testimony, I issue this decision based on the written record.  CRD Procedures § 19(d).

IV.  Issues

1. Whether CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(13).
2. Whether CMS had a legitimate basis to place Petitioner on CMS's preclusion list under 42 C.F.R. §§ 422.2 and 423.100.

V.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), (20), 498.5(l)(2), (n)(2); see also 42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 424.545(a), 498.1(g).

VI.  Findings of Fact

1) Petitioner was licensed to practice Medicine in California on October 27, 1993.  CMS Ex. 8 at 3, 17.

Criminal Convictions

2) Based on multiple complaints that Petitioner was overprescribing controlled substances, the Medical Board of California (Medical Board) and the Los Angeles County Sherriff's Department conducted an operation in 2012 in which Petitioner prescribed controlled substances to undercover investigators without conducting a physical examination of those investigators.  CMS Ex. 8 at 22-23; see CMS Ex. 7 at 4, 7.

3)  Petitioner was arrested and charged with seven criminal counts.  CMS Ex. 8 at 23.  On May 14, 2015, a jury found Petitioner guilty of "seven separate felony counts of [California's] Health and Safety Code Section 11153(A), unlawful issuance of controlled substance, to wit:  Adderall, Hydrocodone, Alprazolam, and Oxycodone."  CMS Ex. 8 at 23; see CMS Ex. 7 at 7.

4)  On March 28, 2016, the Superior Court of California, Los Angeles County, reduced Petitioner's felony convictions to misdemeanors, sentenced Petitioner to "time served" (i.e., approximately 40 to 50 days in jail) and placed Petitioner on

Page 5

probation for 36 months.  CMS Ex. 7 at 7; CMS Ex. 8 at 23-24; CMS Ex. 9 at 1; see RFH Attachment G.

5)  On August 26, 2019, the Superior Court of California, Los Angeles County, dismissed the criminal conviction related to improper prescribing of controlled substances.  RFH Attachments C, G.

Professional Discipline

6)  On May 31, 2016, the Medical Board's Executive Director filed an ex parte petition for an interim order suspending Petitioner's medical license, which the Medical Board granted on June 10, 2016.  CMS Ex. 8 at 17-18.

7)  On July 7, 2016, the Medical Board's Executive Director filed a First Amended Accusation seeking the revocation or suspension of Petitioner's medical license, based largely on Petitioner's criminal conduct and conviction.  CMS Ex. 8 at 17-24.

8)  On September 8, 2016, Petitioner entered into a Stipulated Settlement and Disciplinary Order (Disciplinary Order) to resolve the Executive Director's accusations against him.  CMS Ex. 8 at 2-15.  Petitioner agreed that his medical license was subject to discipline and agreed to be bound by the terms in the Disciplinary Order.  CMS Ex. 8 at 4.  The Disciplinary Order revoked Petitioner's medical license but stayed the revocation and placed Petitioner on probation for seven years.  CMS Ex. 8 at 5.  Significantly, the Disciplinary Order prohibited Petitioner from prescribing any controlled substances listed as Schedule II and III under the California Uniform Substances Act, except for administering drugs while practicing anesthesiology in a hospital or licensed surgery center.  CMS Ex. 8 at 5; see CMS Ex. 7 at 8; CMS Ex. 9 at 1.

9)  The Medical Board adopted the Disciplinary Order on December 20, 2016, and the Disciplinary Order became effective on January 19, 2017.  CMS Ex. 8 at 1; see CMS Ex. 9 at 1.

10)  Petitioner's medical license in Texas was also suspended due to his criminal conviction.  RFH Attachment G.

Revocation of DEA Certificate of Registration

11)  On July 21, 2016, the DEA issued an Order to Show Cause why Petitioner's DEA Certificate of Registration should not be revoked.  Petitioner disputed revocation.  CMS Ex. 7 at 1.

Page 6

12)  A DEA administrative law judge held a hearing, and, on August 28, 2017, the administrative law judge issued a decision recommending that the DEA Administrator revoke Petitioner's Certificate of Registration.  CMS Ex. 7 at 1-2.

13)  The recommended decision provided 83 enumerated stipulated facts and 66 enumerated findings of fact.  CMS Ex. 7 at 4-8.

14)  In addition to findings related to Petitioner's criminal convictions and discipline imposed by the Medical Board, the recommended decision also found that Petitioner went to Texas in 2017 and practiced medicine there.  While there, he prescribed controlled substances even though his DEA Certificate of Registration was limited to prescribing controlled substances in California.  CMS Ex. 7 at 8.

15)  The recommended decision indicated that, under 21 U.S.C. § 824(a)(4), the DEA may revoke a Certificate of Registration if the registrant acted in a manner inconsistent with the public interest, and that 21 U.S.C. § 823(f) provides that the DEA must consider the following five factors when determining if a registrant's actions are inconsistent with the public interest:  a) The recommendation of the appropriate state licensing board or professional disciplinary authority; b) The registrant's experience in dispensing or conducting research regarding controlled substances; c) The registrant's conviction record regarding the manufacture, distribution, or dispensing of controlled substances; d) The registrant's compliance with applicable laws relating to controlled substances; and e) Such other conduct which may threaten the public health and safety.  CMS Ex. 7 at 8-9.

16)  Regarding the first factor, the recommended decision noted that, while the Medical Board only provided for a partial restriction of Petitioner's ability to prescribe controlled substances, his license was still severely limited, indicating a lack of trust in Petitioner.  CMS Ex. 7 at 11.  The recommended decision also noted that, in 2017, after the Medical Board had issued its decision to place Petitioner on probation, Petitioner wrote prescriptions without a valid DEA Certificate of Registration from his office in Texas.  Therefore, the recommended decision only marginally favored allowing Petitioner to maintain his DEA Certificate of Registration.  CMS Ex. 7 at 11.

17)  Regarding the second and fourth factors, the recommended decision indicated that the improper prescriptions to undercover investigators in California was proven and that Petitioner had improperly prescribed controlled substances from his office in Texas without a valid DEA Certificate of Registration.  CMS Ex. 7 at 12-13.

Page 7

18)  Regarding the third factor, the recommended decision stated that Petitioner's criminal convictions for seven violations of state law, related to prescribing controlled substances, weighed in favor of revocation.  CMS Ex. 7 at 13-14.

19)  The recommended decision indicated that the fifth factor neither supported nor detracted from revocation.  CMS Ex. 7 at 14.

20)  The recommended decision's Discussion and Conclusions of Law section stated that the DEA had established, by a preponderance of the evidence, that Petitioner had unlawfully prescribed controlled substances to three undercover agents on five separate occasions, was convicted in state court of seven misdemeanors for issuing unlawful prescriptions for controlled substances, and wrote three prescriptions in Texas without a valid DEA Certificate of Registration for a Texas location.  CMS Ex. 7 at 14.  Therefore, Petitioner had the burden to establish he accepted responsibility for that conduct and that he will not engage in future misconduct.  However, the recommended decision found Petitioner failed to meet his burden because Petitioner's limited acceptance of responsibility was outweighed by his prescribing violations.  The recommended decision concluded that, "[i]n this case, [Petitioner's] numerous transgressions are sufficiently egregious to warrant revocation."  CMS Ex. 7 at 14-15.

21)  On March 2, 2020, the DEA Acting Administrator adopted the recommended decision with minor modifications and ordered the revocation of Petitioner's DEA Certificate of Registration.  CMS Ex. 7 at 1; see CMS Ex. 4.

22)  On or about April 4, 2021, Petitioner filed an application with the DEA to register under the Controlled Substances Act.  RFH Attachments F, G.

Exclusion from Participating in Federal Health Care Programs

23)  On June 30, 2017, the Inspector General (IG) of the United States Department of Health and Human Services notified Petitioner that he was being excluded under 42 U.S.C. § 1320a-7(b)(3) for three years from participating in all federal health care programs due to Petitioner's misdemeanor conviction in the Superior Court of California, Los Angeles County, for a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  CMS Ex. 5 at 2.

24)  On July 27, 2020, the IG notified Petitioner that he was reinstated to participate in the Medicare program.  CMS Ex. 6.

Page 8

VII.  Conclusions of Law and Analysis

1. CMS had a legitimate basis to revoke Petitioner's enrollment and billing privileges in the Medicare program because the DEA revoked his Certificate of Registration.

A physician who participates in the Medicare program is a "supplier."  42 U.S.C. § 1395x(d), (r)(1).  The Social Security Act authorizes the Secretary of Health and Human Services (Secretary) to create regulations governing the enrollment of suppliers in the Medicare program.  42 U.S.C. § 1395cc(j).

Under the Secretary's regulations, a supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  Once enrolled, CMS may revoke a supplier's Medicare enrollment and billing privileges for any of the reasons stated in 42 C.F.R. § 424.535(a).

In the present case, CMS revoked Petitioner's enrollment based on 42 C.F.R. § 424.535(a)(13), which provides that CMS may revoke a supplier if:

(i) The physician or eligible professional's Drug Enforcement Administration (DEA) Certificate of Registration is suspended or revoked; or

(ii) The applicable licensing or administrative body for any state in which the physician or eligible professional practices suspends or revokes the physician or eligible professional's ability to prescribe drugs.

There is no dispute that the DEA revoked Petitioner's Certificate of Registration in 2020.  Therefore, CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges.

Although Petitioner does not dispute the revocation of his Certificate of Registration, Petitioner believes that revocation of Medicare enrollment is inappropriate because the DEA hearing and appeals process took years to complete.  The DEA's case was pending adjudication during the time that Petitioner served his entire three-year exclusion from participation in federal health care programs.  Further, the DEA only prohibited Petitioner from re-applying for his Certificate of Registration for one year, and Petitioner has applied for a new Certificate of Registration.  P. Br. at 5-6; RFH at 4-5.

Petitioner's arguments are unavailing.  The IG's exercise of authority to exclude Petitioner from all federal health care programs is distinct from CMS's authority to

Page 9

revoke Medicare enrollment.  Ahmed v. Sebelius, 710 F. Supp. 2d. 167, 175 (D. Mass. 2010).  Further, while the IG excluded Petitioner based on his criminal convictions, CMS revoked Petitioner based on the DEA's revocation of his Certificate of Registration.  Although the revocation of the Certificate of Registration was based in part on Petitioner's convictions, it was also based on additional misconduct, i.e., Petitioner prescribed controlled substances in Texas when he was not authorized under the Certificate of Registration to do so.

CMS, in its discretion, could consider all of the reasons the DEA imposed revocation. Further, the Secretary made it clear when promulgating 42 C.F.R. § 424.535(a)(13) that the DEA's decision to revoke a Certificate of Registration was a cause for concern.  The Secretary stated that "the loss of the ability to prescribe drugs via a suspension or revocation of a DEA Certificate or by state action is a clear indicator that a physician or eligible professional may be misusing or abusing his or her authority to prescribe such substances" and that "we are concerned that a physician or eligible professional's improper prescribing practices may be duplicated in the Medicare program."  79 Fed. Reg. 29,844, 29,896 (May 23, 2014).

Finally, Petitioner's efforts to obtain a new Certificate of Registration do not affect CMS's authority to revoke Petitioner's Medicare enrollment.  When promulgating 42 C.F.R. § 424.535(a)(13), a member of the public asked whether a physician could reenroll in the Medicare program once the DEA lifted its revocation of a Certificate of Registration.  The Secretary responded that the physician could seek enrollment again "upon the expiration of his or her reenrollment bar."  79 Fed. Reg. at 29,897.  Therefore, Petitioner's efforts to obtain a new Certificate of Registration will only impact his ability to reenroll once he is eligible to reapply for enrollment under the regulations.

2. I have no authority to review the length of the reenrollment bar imposed on Petitioner.

When CMS revokes the Medicare enrollment of a supplier, it must impose a reenrollment bar from one to ten years in length.  42 C.F.R. § 424.535(c)(1)(i).  In this case, CMS imposed a five-year reenrollment bar on Petitioner.  Petitioner argues that this length is inappropriate.  P. Br. at 6-9; RFH at 5-6.

The imposition of a reenrollment bar is not subject to administrative law judge review.  Vijendra Dave, M.D., DAB No. 2672 at 9 (2016); see also 42 C.F.R. § 424.535(c)(2)(ii)(B).  Therefore, I cannot modify the length of the reenrollment bar, as requested by Petitioner.

Page 10

3. CMS had a legitimate basis to add Petitioner to the CMS 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, for CMS to include an individual, entity, or prescriber on its preclusion list, 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.

CMS added Petitioner to its preclusion list.  In the reconsidered determination, the CMS hearing officer found that Petitioner had been revoked and was under a reenrollment bar.  CMS Ex. 1 at 5.  Those facts are not in dispute.

As to whether Petitioner's conduct underlying the revocation is detrimental to the best interests of the Medicare program, the CMS hearing officer provided a detailed analysis for each of the three factors in the regulations.

The CMS hearing officer found that the conduct underlying the revocation, i.e., the DEA's revocation of Petitioner's Certificate of Registration, to be extremely serious in

Page 11

nature in part because of CMS's concern that Petitioner may misuse or abuse prescription authority in the future.  CMS Ex. 1 at 5.

Regarding the second and third factors, the CMS hearing Officer stated the following:

With regard to the second factor, CMS considers the degree to which the individual's conduct could affect the integrity of the Medicare program.  Dr. Dimowo's controlled substance license was revoked because he engaged in the prescribing of controlled substances without properly examining the patients and failing to provide a diagnosis warranting prescribing controlled substances.  Furthermore, this pattern of overprescribing encompassed at least a period of three years from 2012 through 2015.  Dr. Dimowo's inappropriate prescribing of controlled substances represents a serious threat to the health and safety of Medicare beneficiaries.  CMS finds that Dr. Dimowo's actions demonstrate a propensity for dangerous and noncompliant behavior, as well as a complete disregard for federal government rules and regulations.  Further, Dr. Dimowo's conduct also calls into question his ability to be a trustworthy Medicare partner. CMS is responsible for protecting Medicare beneficiaries and the Medicare Trust Funds, and the integrity of the Medicare program is dependent on the reliability, integrity, and good judgement of its partners.  Dr. Dimowo's participation in the Medicare program would significantly and negatively affect the integrity of the program.

With regard to the third factor, CMS considers any other evidence relevant to its determination.  CMS finds it relevant that on June 10, 2016, the Medical Board of California suspended Dr. Dimowo's medical license for overprescribing controlled substances on or about December 11, 2011 through May 31, 2012.  On January 19, 2017, the Medical Board of California revoked, stayed and placed on probation Dr. Dimowo's medical license for seven years for his overprescribing practices.  The Medical Board of California restricted his medical license by not allowing him to prescribe any controlled substances listed in Schedules II and II [sic] as defined in the California Uniform Controlled Substances Act.  Additionally, for his improper prescribing habits, the [IG] excluded Dr. Dimowo from Medicare, Medicaid and all other

Page 12

Federal health care programs for a period of three years commencing on July 20, 2017.  Furthermore, in 2017, Dr. Dimowo prescribed controlled substances from his Texas practice location using his California DEA [Certificate of Registration] because he did not have a DEA [Certificate of Registration] for a registered Texas location.  Thus, Dr. Dimowo violated the separate registration requirement of 21 U.S.C. § 822(e) and 21 C.F.R. § 1301.12(a) and (b)(3).  Dr. Dimowo's Texas Medicare enrollment was also revoked in 2017 based on the [IG] exclusion.  As indicated by the Medical Board of California, Court, [IG] and [DEA], Dr. Dimowo has a history of overprescribing controlled substances over the years.  His prescribing of controlled substances over the years exhibits perilous behavior and complete indifference for beneficiaries' safety and Federal and State laws.  Therefore, with consideration of the factors discussed above, CMS finds that that [sic] Dr. Dimowo's conduct, which led to the revocation of his DEA [Certificate of Registration] and Medicare enrollment is detrimental to the best interests of the Medicare program, and forms an appropriate basis to include him on the CMS Preclusion List.

CMS Ex. 1 at 5-6 (citation omitted).

Petitioner appears to dispute CMS's determination to add his name to the preclusion list; however, Petitioner provided little or no argument to seek reversal of CMS's action.  See P. Br. at 4; RFH at 3 (simply stating that a review of the factors in the regulations does not support a finding that Petitioner's conduct underlying the revocation is detrimental to the best interests of the Medicare program.).

I uphold CMS's inclusion of Petitioner's name on the preclusion list.  I agree with the CMS Hearing Officer's evaluation of the record and agree that the underlying conduct for the revocation in this case shows that it is detrimental to the best interests of the Medicare program.

Page 13

VI.  Conclusion

I affirm CMS's revocation of Petitioner's Medicare enrollment and billing privileges and the inclusion of Petitioner on CMS's preclusion list.