Ranvir Ahlawat, MD, DAB CR6037 (2022)

DECISION

The Centers for Medicare & Medicaid Services (CMS) upheld the denial of a July 1, 2021 enrollment application submitted by Petitioner, Ranvir Ahlawat, MD, based on his October 2016 conviction for obstruction of the administration of law or other governmental function within the preceding 10 years.  CMS also upheld Petitioner's placement on its Preclusion List.  I affirm CMS's determinations.

I.  Background and Procedural History

Petitioner is a physician who practices in New Jersey.  CMS Ex. 9 at 1.  In June 2009, a federal district court imposed judgment following Petitioner's entry of a guilty plea to the offenses of conspiracy to distribute controlled substances and money laundering.  CMS Exs. 2 at 5; 3.  Thereafter, the New Jersey Board of Medical Examiners revoked Petitioner's medical license, effective February 10, 2010.  CMS Ex. 4 at 12-14.

In June 2014, the Medicaid Fraud Section of the New Jersey Office of the Attorney General filed a criminal complaint charging that, beginning on or about February 10,

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2010, Petitioner "did knowingly commit the offense of unauthorized practice of medicine . . . [and] represent himself as being eligible to practice medicine and occupied or shared office space with a healthcare services licensee."  Request for Hearing at 58 (capitalization omitted).

On October 21, 2016, Petitioner, with the assistance of counsel, waived his right to indictment and jury trial for a newly-filed charge of "fourth-degree obstructing the administration of law or other governmental function." Pursuant to a plea agreement, the charge of unauthorized practice of medicine would be dismissed.  See Request for Hearing at 110; CMS Ex. 5.  Request for Hearing at 59-61 (capitalization omitted). In a written plea agreement, Petitioner acknowledged that he was pleading guilty to a fourth-degree offense that carried a maximum term of incarceration of 18 months.  Request for Hearing at 63.  When Petitioner entered his plea in court, he again acknowledged that the offense is a "fourth-degree offense which could carry up to 18 months in New Jersey State[] prison."  Request for Hearing at 111.  At the time of his guilty plea, Petitioner admitted that he obstructed the investigation of his alleged unauthorized practice of medicine when he "knowingly spoke" to three patients who were potential witnesses and "tr[ied] to affect, neutralize or alter the information they may have provided already to the State."  Request for Hearing at 116-17.  The presiding judge determined that Petitioner "purposely obstructed [an] investigation or prosecution by contacting potential witnesses, which he did, and he knowingly engaged in conduct which a reasonable person would believe would cause a witness to testify or inform falsely."  Request for Hearing at 119.  The Court imposed judgment on January 6, 2017, at which time it ordered, inter alia, an 18-month term of probation, 120 hours of community service, and a $10,000 fine.  Request for Hearing at 68-69.

On February 12, 2021, the New Jersey Board of Medical Examiners conditionally reinstated Petitioner's medical license.  CMS Ex. 8 at 4-5.  On July 1, 2021, Petitioner submitted an application to enroll as a supplier in the Medicare program.  Petitioner reported, inter alia, a "felony conviction within 10 years" and a "Guilty Plea, Probation 18 months, NJ Me[d]ical License Suspension 2 years" on January 6, 2017.  CMS Ex. 9 at 2 (capitalization omitted).

On July 14, 2021, Novitas Solutions, a Medicare administrative contractor, denied Petitioner's enrollment application pursuant to 42 C.F.R. § 424.530(a)(3).  CMS Ex. 10 at 1.  Novitas reported that CMS "has been made aware of [Petitioner's] . . . felony conviction, as defined in 42 C.F.R. § 1001.2, for obstructing administration of law- obstruction criminal investigation in violation of New Jersey Revised Statutes § 2C:29-1A in the Superior Court of New Jersey, Ocean County."  CMS Ex. 10 at 1.  Novitas stated that "[a]fter reviewing the specific facts and circumstances surrounding [Petitioner's] felony conviction, CMS has determined that [his] felony conviction is

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detrimental to the best interests of the Medicare program and its beneficiaries."  CMS Ex. 10 at 1.  Novitas also placed Petitioner "on the CMS Preclusion List because he has been convicted of a felony . . . within the previous 10 years [] that CMS deems detrimental to the best interests of the Medicare program."  CMS Ex. 10 at 1.

Petitioner submitted a request for reconsideration dated July 17, 2021.  Petitioner seemingly challenged the validity of his most recent conviction, arguing that an investigator "simply fabricated and manufactured witness statements as evidence that did not exist."  CMS Ex. 11 at 1, 11.  Petitioner nonetheless acknowledged that he had a "felony conviction of Obstructing administration of law—obstruction criminal investigation" but claimed that this conviction "had nothing to do with obstruction of any criminal investigation or administration of law."  CMS Ex. 11 at 9.  Petitioner denied that the offense conduct involved "witness tampering," but conceded that "the factual basis of [his] plea . . . was that [he] spoke to three patients while the investigation was ongoing."  CMS Ex. 11 at 11.

On September 1, 2021, CMS's Provider Enrollment & Oversight Group issued a reconsidered determination in which it upheld both the denial of Petitioner's enrollment application and his placement on the Preclusion List.  DAB E-File Docket Entry # 1a.  CMS determined that Petitioner had been "convicted of a felony, as defined in § 1001.2 within the preceding 10 years that CMS has determined is detrimental to the best interests of the Medicare program and its beneficiaries."  Reconsidered Determination at 6.  CMS provided the following discussion of its reasons for determining that Petitioner's offense is detrimental to the best interest of the Medicare program and its beneficiaries:

[Petitioner] was convicted of Obstructing Administration of Law or Other Governmental Function . . . .  Pursuant to N.J.S.A. 2C:29-1, a person commits this offense when "he purposely obstructs, impairs or perverts the administration of law […] or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference[…]"  Here, [Petitioner] attempted to influence witnesses' testimonies, and therefore, he attempted to prevent law enforcement from conducting an investigation to determine if [Petitioner] was operating his practice without a medical license.  [Petitioner's] felony conviction calls into question his trustworthiness and his character.  Under the Medicare program, payment is made for claims submitted in a manner that relies on the trustworthiness and integrity of our Medicare partners.  [Petitioner's] criminal conduct indicates to CMS that the Medicare Trust Funds may be at risk if [Petitioner] is allowed to participate in the Medicare program.  It necessarily follows that risk to the Trust Funds is a detriment to the beneficiaries.  Therefore, CMS finds that [Petitioner's] January 6, 2017

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felony offense to be detrimental to the best interests of the Medicare program and its beneficiaries under § 424.530(a)(3).

Reconsidered Determination at 5.  CMS also upheld Petitioner's placement on its Preclusion List.  Reconsidered Determination at 6-7.  CMS discussed that it "considered Obstruction Administration of Law or Other Government Function to be a very serious offense," and that Petitioner "interfered" with the investigation "by contacting witnesses and attempting to influence their statements to law enforcement."  Reconsidered Determination at 6.  CMS explained, "[t]his conduct is incredibly severe because [Petitioner] impeded a state investigation into his practice of medicine."  Reconsidered Determination at 6.  CMS further noted that Petitioner's "lack of integrity presents a serious risk to the Medicare Trust Funds and to beneficiaries," and he "could easily continue similar conduct in the Medicare program, and this presents ser[i]ous risks to the integrity of the program."  Reconsidered Determination at 6.  CMS also observed that the sentence included 18 months of probation, 120 hours of community service, and a monetary penalty and "further demonstrates the severity of [the] offense."  Reconsidered Determination at 6.  CMS determined that the offense occurred over a significant period of time, and that Petitioner's conduct "negatively affects the integrity of the Medicare program because his actions reflect poorly on the medical profession as a whole and could jeopardize public confidence in Medicare providers and suppliers."  Reconsidered Determination at 6-7.

Petitioner requested an administrative law judge (ALJ) hearing on October 26, 2021.  CMS filed a combined brief and motion for summary judgment (CMS Br.), along with 13 proposed exhibits (CMS Exs. 1-13).  Petitioner submitted a pre-hearing brief in response to CMS's motion for summary judgment (P. Br.) and 13 exhibits (P. Exs. 1-13).Petitioner requested leave to file a 76-page brief.  Although I reserve judgment on whether this request has merit, I have accepted Petitioner's brief for filing.  See Pre-Hearing Order § 8 (imposing a 25-page limit for briefs).  In the absence of any objections, I admit CMS Exs. 1-13 and P. Exs. 1-13 into the evidentiary record.

Neither party has submitted any written direct testimony.  Therefore, a hearing is unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order §§ 12-14.  The record is closed, and I issue this decision on the merits.

II.  Issues

Whether CMS had a legitimate basis to uphold the denial of Petitioner's Medicare enrollment application pursuant to 42 C.F.R. § 424.530(a)(3)

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based on his felony conviction for obstructing the administration of law or other governmental function.

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

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and AnalysisMy findings of fact and conclusions of law are in bold and italics.

As a physician, Petitioner is a supplier of health care services for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.20(b)(1).  In order to participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may deny a supplier's enrollment for any reason stated in, inter alia, 42 C.F.R. § 424.530.

A supplier's enrollment application for Medicare billing privileges can be denied based on the existence of a felony conviction:

(3)  Felonies.  The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 [C.F.R. §] 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.

42 C.F.R. § 424.530(a)(3); see 42 U.S.C. § 1395u(h)(8) (authorizing the Secretary to deny enrollment when a prospective supplier has been convicted of a felony offense that the Secretary has determined is detrimental to the best interests of the Medicare program or its beneficiaries).

Additionally, 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,

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423.120(c)(6).  As relevant here, CMS may place an individual, entity, or prescriber on its Preclusion List under the following circumstances:

(3) The [individual, entity, or prescriber], regardless of whether they are or were enrolled in Medicare, has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.  Factors that CMS considers in making such a determination . . . are –

(i) The severity of the offense;
(ii) When the offense occurred; and
(iii) Any other information that CMS deems relevant to its determination.

42 C.F.R. §§ 422.2, 423.100.

When CMS denies a supplier's enrollment application or places a supplier on its Preclusion List, the supplier has a right to an ALJ hearing and Departmental Appeals Board (DAB) review.  See 42 C.F.R. §§ 498.3(b)(17), (20) and 498.5(l)(2)-(3), (n)(2)-(3); see 42 U.S.C. § 1395cc(j)(8).  Although the Secretary's regulations afford CMS discretion with respect to its determinations, the regulations do not afford an ALJ the same discretion.  The DAB has unambiguously stated, "[w]e may not review CMS's exercise of discretion."  Pennsylvania Physicians, P.C., DAB No. 2980 at 13 (2019); see John A. Hartman, D.O., DAB No. 2911 at 17 ("CMS exercised its discretion here to deny re-enrollment upon a qualifying felony conviction; we may not look behind that exercise of discretion."); Stephen White, DAB No. 2912 at 14 (2018) ("Where CMS is legally authorized to deny an enrollment application, an ALJ cannot substitute his or her discretion for that of CMS (or CMS's contractor) in determining whether, under the circumstances, denial is appropriate.").  Thus, the scope of my review is whether CMS had a legitimate basis to deny Petitioner's enrollment application and add him to its Preclusion List, and not whether I would make the same determination in the first instance.

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1. On October 21, 2016, Petitioner pleaded guilty to the offense of obstructing the administration of law or other governmental function, a fourth-degree offense, in violation of N.J. Rev. Stat. § 2C-29-1(a).
2. Pursuant to N.J. Rev. Stat. § 2C-29-1(a), a person commits the offense of obstructing the administration of law or other governmental function "if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act."
3. Pursuant to N.J. Rev. Stat. § 2C-46(a)(4), a fourth-degree offense is punishable by up to 18 months of incarceration.
4. A fourth-degree offense is punishable by more than one year of incarceration and is a felony offense for purposes of Medicare enrollment.
5. Applying a case-specific analysis, Petitioner's offense involving obstructing the administration of law or governmental function is detrimental to the best interests of the Medicare program and its beneficiaries.
6. CMS properly upheld the denial of Petitioner's enrollment application pursuant to 42 C.F.R. § 424.530(a)(3) because he has a felony conviction that is detrimental to the best interests of the Medicare program and its beneficiaries within the preceding 10 years.
7. Because Petitioner has a felony conviction within the preceding 10 years, and that offense is detrimental to the best interests of the Medicare program, CMS had a legitimate basis to place him on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.

In explaining how it would determine whether an offense is detrimental to the best interests of the Medicare program and its beneficiaries, CMS noted, in the Final Rule modifying section 424.530(a)(3), that "[t]he determination of whether a particular conviction will or will not result in the revocation or denial of Medicare enrollment will depend upon the specific facts of each individual situation."  79 Fed. Reg. 72,500, 72,510 (Dec. 5, 2014).  CMS explained:

We believe that the term "determines" makes clearer that the lists of felonies in these two provisions are not exhaustive and include other felonies that CMS may deem as meeting the "detrimental" standard based on the particular facts of the

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case.  Second, and to further emphasize CMS' discretion to use felonies other than those specified in §§ 424.530(a)(3) and 424.535(a)(3) as grounds for denial or revocation, we have included the phrase "but are not limited in scope or severity" within both provisions.

However, notwithstanding these changes, we again stress that we will only exercise our authority under §§ 424.530(a)(3) and 424.535(a)(3) after very careful consideration of the relative seriousness of the underlying offense and all of the circumstances surrounding the conviction.  It should in no way be assumed that every felony conviction will automatically result in a denial or revocation.

Id. at 72,511-12.  In stating such, CMS indicated that if a felony offense was not specifically enumerated in the list at 42 C.F.R. § 424.530(a)(3)(i)(A)-(D), it would make a case-specific determination whether the offense was detrimental to the best interests of the Medicare program and its beneficiaries.  Id.

Obstructing the administration of law or other governmental function is a fourth-degree offense under New Jersey law that is defined as follows:

A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.

N.J. Rev. Stat. § 2C:29-1.  A fourth-degree offense is punishable by up to 18 months of incarceration.  N.J. Rev. Stat. § 2C-46(a)(4).

Although Petitioner disputes the circumstances of his conviction and the underlying investigation of the charge that he practiced medicine without a license, he does not dispute that he entered a guilty plea to the charge of obstructing the administration of law or other governmental function and that his offense involved his contact with three patients who were potential witnesses to his alleged unauthorized practice of medicine.  P. Br. at 51; see Request for Hearing at 116-20.  Petitioner also does not dispute that the court imposed judgment of his conviction.  Request for Hearing at 68.  Petitioner has not offered any basis to challenge his criminal conviction for obstructing the administration of law or other governmental function.  See 42 C.F.R. § 1001.2.  Petitioner argues that "just because [he] succumbed to health issues and [a] corrupt system of justice in NJ prior to pleading guilty to a defective legal opinion and advice of defense counsel i.e., misdemeanor vs a felony conviction, does not automatically mean [he] is guilty of the

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alleged crime."  P. Br. at 52.  My review is whether CMS had a legal basis to deny Petitioner's enrollment application, and Petitioner points to no legal authority requiring CMS to weigh his reasons for entering a guilty plea and waiving a jury trial.  Pursuant to 42 C.F.R. § 424.530(a)(3), CMS may deny an enrollment application when a prospective supplier has a felony conviction that is detrimental to the best interests of the Medicare program and its beneficiaries.

Petitioner also argues that he did not intend to enter a guilty plea to a felony offense and that he pleaded guilty "solely based on legal advice of defense counsel that [he] was pleading guilty to a misdemeanor charge only."  P. Br. at 71.  However, Petitioner does not dispute that CMS could properly consider his offense to be a felony-level offense for purposes of Medicare enrollment.New Jersey does not classify crimes as felonies and misdemeanors.  Rather, indictable crimes are classified as one of four degrees, with fourth-degree crimes carrying exposure to up to 18 months of incarceration.  N.J. Rev. Stat. § 2C-43-1.  P. Br. at 18 (acknowledging that under New Jersey law, a "4th degree offense can either [be] a misdemeanor or felony"); 21 (claiming that "counsel misinformed and mislead [sic] [him] into believing to be [sic] pleading guilty to a misdemeanor charge and not a felony charge").  In fact, Petitioner submitted email communications with his attorney in which he requested a misdemeanor notation in the plea agreement, to which his attorney responded, "[t]he state will not agree to caption the charges as anything other than a 4th degree because that is how it is defined in [New Jersey's] statutes."Email correspondence also documents that Petitioner's criminal defense attorney proposed a "disorderly persons (misdemeanor) obstruction of government function" charge as the basis for the guilty plea, "but that offer was rejected by the state."  Request for Hearing at 70, 72.  After Petitioner informed his attorney that his Medicare enrollment application had been denied because of a felony conviction, the attorney explained, "You pleaded guilty to the 4th degree charge, which is a 'felony' for purposes of jurisdictions other than NJ."  Request for Hearing at 72.  Request for Hearing at 71.  Regardless of whether Petitioner believed he was entering a guilty plea to a misdemeanor or felony offense, the evidence undeniably shows that he had been repeatedly advised that he faced a maximum period of incarceration of 18 months, which is a felony-level term of incarceration.  Request for Hearing at 63 (guilty plea form); 111 (transcript of guilty plea hearing); see, e.g., 18 U.S.C. § 3559(a) (classifying felonies as offenses punishable by more than one year of incarceration).

CMS had a reasonable basis to deny Petitioner's enrollment application pursuant to 42 C.F.R. § 424.530(a)(3) based on its determination that he has a felony offense that is detrimental to the best interests of the Medicare program and its beneficiaries.  Petitioner knowingly spoke to three patients who were potential witnesses to a criminal

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investigation of which he was the subject, and he "tr[ied] to affect, neutralize or alter the information" these patients "may have provided already to the State."  See Request for Hearing at 116-17.  Further, Petitioner "purposely obstructed [the] investigation or prosecution" and "knowingly engaged in conduct which a reasonable person would believe would cause a witness to testify or inform falsely."  See Request for Hearing at 119.  In its reconsidered determination, CMS addressed the offense conduct and correctly determined that Petitioner's efforts to influence witnesses and prevent law enforcement from investigating whether he practiced medicine without a license "call[] in to question his trustworthiness and character."  Reconsidered Determination at 5.  CMS determined that such conduct poses a risk to the Medicare Trust Fund, and is therefore a detriment to beneficiaries.  Reconsidered Determination at 5.  CMS correctly explained that it considers whether the offense for which Petitioner was convicted is detrimental to the best interests of the Medicare program and its beneficiaries, and that such an offense of obstructing the administration of law and governmental function calls into question both trustworthiness and character.  Reconsidered Determination at 5-6.  Inasmuch as Petitioner's criminal conduct centers on a lack of integrity and trustworthiness, CMS had a legitimate basis to determine that Petitioner's efforts to obstruct the investigation of his own alleged unauthorized practice of medicine is a detriment to the Medicare program and its beneficiaries and warrants denial of enrollment.

CMS also had a legitimate basis to place Petitioner on its Preclusion List.  Reconsidered Determination at 6-7.  Addressing the first factor at 42 C.F.R. §§ 422.2, 423.100 pertaining to the severity of the offense, CMS correctly determined that Petitioner committed "a very serious offense" by "contacting witnesses and attempting to influence their statements to law enforcement."  Reconsidered Determination at 6.  CMS further observed that Petitioner "impeded a state investigation into his practice of medicine."  Reconsidered Determination at 6.  CMS determined that such an offense demonstrates a "lack of integrity" and calls into question his trustworthiness.  CMS further noted that the sentence imposed reflected the seriousness of the offense.  Reconsidered Determination at 6.  In fact, the $10,000 fine is a very significant monetary penalty and corresponds to the severity of the criminal conduct.  See Request for Hearing at 68.  Although CMS acknowledged that the offense conduct dated back to 2014, it determined that the passage of time, in and of itself, did not weigh against Petitioner's placement on the Preclusion List.  Reconsidered Determination at 6; see 42 C.F.R. §§ 422.2, 423.100.  I observe that Petitioner committed the instant felony offense several years after his criminal convictions for conspiracy to distribute controlled substances and money laundering, thus showing that his prior involvement with the criminal justice system did not deter him from once again engaging in criminal activity.  See CMS Ex. 4 at 1; Request for Hearing at 58.

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Not only did CMS correctly consider the relevant regulatory criteria set forth in 42 C.F.R. §§ 422.2 and 423.100, but it correctly determined that these factors were met.  Petitioner was convicted of a felony crime, as contemplated by 42 C.F.R. § 424.530(a)(3), within the preceding 10 years that warrants his placement on the Preclusion List pursuant to 42 C.F.R. §§ 422.2, 423.100.

V.  Conclusion

I affirm the denial of Petitioner's Medicare enrollment application and his placement on CMS's Preclusion List.