George E. Fisher, M.D., DAB CR6166 (2022)

DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) to add the name of George E. Fisher, M.D. (Petitioner) to its Preclusion List and to keep his name on the list for ten years following the date of Petitioner’s felony conviction. 

I.    Background and Procedural History

Petitioner is a physician.  In a December 15, 2021 notice of initial determination, CMS added Petitioner’s name to its Preclusion List.  CMS Ex. 6 at 1.  CMS explained the effect of its determination as follows: 

During the time period that your name will be included on the Preclusion List as listed above, any claims you or an entity you are employed by submit for health care items or services that you furnished under a Medicare Advantage (MA) benefit shall be denied.  Additionally, any pharmacy claims submitted for Medicare Part D drugs that you prescribed shall be rejected or denied subject to the exception at 42 C.F.R.

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§ 423.120(c)(6)(iv).  This means that your patients may not be able to receive coverage of their prescriptions using their Part D benefit at the pharmacy. 

CMS Ex. 6 at 1. 

CMS also told Petitioner the reason why his name was added to the Preclusion List.  It was “because you have been convicted of a felony, as described below, under Federal or State law, within the previous 10 years, that CMS deems detrimental to the best interests of the Medicare program.”  CMS Ex. 6 at 1.  CMS specified the following facts: 

CMS has been made aware of your June 29, 2017, felony conviction, as defined in 42 C.F.R. § 1001.2, for distribution of controlled substances (aiding and abetting) in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2, and maintaining a place for illegal distribution of controlled substances in violation of 21 U.S.C. § 856(a)(1) in the United States District Court for the Eastern District of Pennsylvania. 

CMS Ex. 6 at 1. 

Petitioner requested that CMS reconsider its initial determination to add Petitioner to the Preclusion List.  CMS Ex. 7 at 1-2.  Petitioner attached eight documents to the request.  CMS Ex. 7 at 3-52. 

In an April 26, 2022 reconsidered determination, a CMS hearing officer upheld the inclusion of Petitioner’s name on CMS’s Preclusion List.  CMS Ex. 8.  The reconsidered determination indicated that the regulations permit CMS to include individuals on the Preclusion List if they were convicted, within the previous 10 years, of a felony that CMS determines is detrimental to the best interests of the Medicare program.  CMS Ex. 8 at 3.  The reconsidered determination indicated that Petitioner did not dispute that he was convicted of a federal felony offense within the previous 10 years.  CMS Ex. 8 at 3.  Further, the reconsidered determination explained that, based on the severity of the criminal offense, when the offense took place, and other relevant information, the felony is detrimental to the best interests of the Medicare program.  CMS Ex. 8 at 3-4. 

On June 25, 2022, Petitioner filed a request for hearing to challenge the inclusion of his name on the Preclusion List.  Along with the hearing request, Petitioner submitted a copy of his request for reconsideration and attached documents.  Petitioner also submitted additional documents dated April 19, 2022, concerning his medical license suspension case in Pennsylvania.  E-File Document Number 1c.

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On June 28, 2022, the Civil Remedies Division (CRD) acknowledged receipt of the hearing request and issued my Standing Prehearing Order (SPO), which provided instructions and dates for prehearing submissions.  On August 2, 2022, CMS filed a brief, which included a motion for summary judgment, and eight marked exhibits.  Petitioner did not file his prehearing exchange by the appointed date. 

On September 8, 2022, CRD emailed Petitioner at my direction and gave him until September 12, 2022, to respond and state:  1) whether Petitioner intended to file a prehearing exchange and, if so, what new due date Petitioner proposed; 2) whether Petitioner wanted me to render a decision based on the documents and arguments Petitioner submitted with his hearing request and those documents submitted by CMS; and 3) whether Petitioner wanted to withdraw his hearing request.  E-File Document No. 5.  In a September 12, 2022 email from CRD to Petitioner, CRD confirmed that Petitioner stated during a phone call that he wanted to file his prehearing exchange by September 15, 2022, and that I had agreed to the new date of filing.  E-File Document No. 6.  In a September 15, 2022 email to CRD, Petitioner stated that he preferred for me to render a decision based on the arguments and documents in his hearing request and those submitted by CMS.  E-File Document 7. 

II.    Admission of Evidence

Petitioner did not object to CMS’s proposed exhibits.  SPO ¶ 10; Civil Remedies Division Procedures (CRDP) § 14(e).  Therefore, I admit all of them into the record.

Petitioner submitted all of the documents included with his request for reconsideration.  E-File Document 1b.  However, because CMS also submitted Petitioner’s entire reconsideration request with attached documents as CMS Exhibit 7, I will cite to this admitted exhibit when referencing Petitioner’s documents.

I admit Petitioner’s documents into the record that were filed as E-File Document Number 1c.

III.    Decision on the Written Record

Petitioner requested a decision based on the written record.  Therefore, he waived his right to an oral hearing, and I decide this case based on the written record.  See 42 C.F.R. § 498.66. 

IV.    Issue

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

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V.    Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. § 498.3(b)(20), 498.5(n)(2).  

VI.    Findings of Fact

1) Petitioner was licensed to practice medicine in Pennsylvania in 1997.  CMS Ex. 1 at 1; CMS Ex. 4 at 7.

2) On May 6, 2016, an Information charging Petitioner with 20 counts of distribution of controlled substances (in violation of 21 U.S.C. § 841(a)(1)) and two counts of maintaining a place for illegal distribution of controlled substances (in violation of 21 U.S.C. § 856(a)(1)) was filed in the United States District Court for the Eastern District of Pennsylvania (District Court).  CMS Ex. 2 at 1; CMS Ex. 3 at 2.  The charges against Petitioner included felonies.  CMS Ex. 3 at 1.  The Information alleged the following facts: 

1. From at least about 2008 through at least about September 2015, Petitioner “intentionally distributed and dispensed, outside the usual course of professional practice and for no legitimate medical purpose, mixtures and substances containing detectable amounts of various controlled substances, including over 100,000 pills containing Oxycodone (a Schedule II controlled substance).”  CMS Ex. 2 at 5-6.
2. Individuals known to be drug dealers and customers who showed no signs of physical illness frequented Petitioner’s medical practice to pay cash in exchange for prescriptions for pills containing controlled substances, including Oxycodone.  CMS Ex. 2 at 6.
3. Customers often received from Petitioner prescriptions with the same amount and type of medications, typically for Percocet 10mg or Oxycodone 30mg.  CMS Ex. 2 at 6.
4. Drug dealers paid Petitioner $50 for each prescription.  During the approximately seven years Petitioner sold prescriptions, he obtained more than $80,000 in cash payments.  CMS Ex. 2 at 6-7.
5. The drug dealers obtained pills from pharmacies using Petitioner’s prescriptions and would sell the pills on the street for cash.  CMS Ex. 2 at 7.

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3) On June 29, 2017, Petitioner signed a plea agreement and entered a guilty plea to Counts 1 through 22 in the Information.  CMS Ex. 3 at 2-3; CMS Ex. 7 at 27.

4) On July 24, 2018, a Pennsylvania State Prosecuting Attorney filed with the Pennsylvania State Board of Medicine (Board of Medicine) a Petition for Immediate Temporary Suspension (Petition) of Petitioner’s medical license.  CMS Ex. 4 at 7-12.  The Petition detailed the Information filed against Petitioner in the District Court.  It also alleged that, in December 2016, Petitioner filed for a renewal of his medical license and responded in the negative to a question as to whether any criminal charges were pending against him.  CMS Ex. 4 at 11.  The Petition also alleged that Petitioner pleaded guilty to the charges in the Information on June 29, 2017.  CMS Ex. 4 at 11.

5) Also, on July 24, 2018, the Board of Medicine issued a Suspension Order in which it temporarily suspended Petitioner’s medical license because, assuming the facts alleged in the Petition were true, Petitioner was an immediate and clear danger to the public health and safety.  CMS Ex. 4 at 1-2; see CMS Ex. 1 at 4; CMS Ex. 5.

6) On June 29, 2021, the District Court sentenced Petitioner to serve 22 concurrent terms of four years of probation.  CMS Ex. 7 at 4, 27.

7) On November 8, 2021, a Board of Medicine hearing examiner held a hearing related to Petitioner’s suspension.  CMS Ex. 7 at 6.  At the hearing, Petitioner apologized and took full responsibility for his conduct.  CMS Ex. 7 at 12.  Petitioner testified that he had been convicted of felonies, but his “cooperation with federal authorities resulted in a substantially reduced sentence.”  CMS Ex. 7 at 18, 20.  Petitioner also stated that he helped law enforcement in recent years in the detection of drug crimes.  CMS Ex. 7 at 13.  Petitioner testified that he had not been charged with any criminal offenses since his criminal conviction and that he had no history of other disciplinary actions against him.  CMS Ex. 7 at 30-31.

8) On March 31, 2022, the Board of Medicine’s hearing examiner issued an Adjudication and Order that included findings of fact, conclusions of law, and/or the proposed sanction.  E-File Document No. 1c at 2.

9) On April 18, 2022, the Chairperson of the Board of Medicine gave notice that it would review the hearing examiner’s Adjudication and Order.  E-File Document No. 1c at 2-3.

10) As of April 19, 2022, Petitioner’s medical license in Pennsylvania was suspended.  CMS Ex. 5.

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VII.    Conclusions of Law and Analysis

1. CMS had a legitimate basis to add Petitioner to the CMS Preclusion List.

The regulations established a single list of individuals and entities for whom Medicare Advantage plans (i.e., Medicare Part C) cannot provide reimbursement for the items and services they provide to Medicare Advantage plan participants, and for whom Medicare Part D plans cannot provide reimbursement for any prescriptions those individuals write.  42 C.F.R. §§ 422.222, 423.120(c)(6).

There are three separate standards and scenarios under which CMS may add an individual or entity to the Preclusion List.  One of the bases involves an individual or entity whose enrollment as a Medicare provider or supplier was revoked for a reason other than in 42 C.F.R. § 424.535(a)(3) (i.e., a felony conviction that is detrimental to the best interests of the Medicare program) and the individual or entity is still under a re-enrollment bar.  42 C.F.R. §§ 422.2 (definition of Preclusion list paragraph (1)) and 423.100 (definition of Preclusion list paragraph (1)).  The second basis involves an individual or entity that was not enrolled in the Medicare program but engaged in conduct that could have resulted in revocation of enrollment (other than in 42 C.F.R. § 424.535(a)(3)).  42 C.F.R. §§ 422.2 (definition of Preclusion list paragraph (2)) and 423.100 (definition of Preclusion list paragraph (2)).

In this case, Petitioner appears to have been enrolled as a physician in the Medicare program in the past, but CMS revoked his enrollment in 2018 because Petitioner failed to inform CMS of his license suspension.  CMS Ex. 1 at 1-2.  However, CMS established a one-year re-enrollment bar, which ended in 2019.  CMS Ex. 1 at 2.  CMS still considers Petitioner’s enrollment status as “REVOKED.”  CMS Ex. 1 at 1.

Because CMS added Petitioner to the Preclusion List based on his felony conviction, Petitioner’s Medicare revocation and his enrollment status are not relevant to this case.  Therefore, it is the final of the three bases/standards for adding a name to the Preclusion List that applies in this case.  That standard is as follows: 

(3) The individual or entity, 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 under this paragraph (3) are -
(i) The severity of the offense;
(ii) When the offense occurred; and

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

42 C.F.R. §§ 422.2 (definition of Preclusion list paragraph (3)) and 423.100 (definition of Preclusion list paragraph (3)).

There is no dispute in this case that Petitioner was convicted of felonies under federal law within the 10 years preceding the initial determination in this case.  CMS Ex. 3 at 1-3; CMS Ex. 7 at 1-2, 4, 20, 27.  In determining whether the felonies for which Petitioner was convicted were detrimental to the Medicare program, CMS discussed all three factors from the regulations.

Concerning the severity of Petitioner’s offenses, CMS considered the felony offenses of Distribution of Controlled Substances and Maintaining a Place for Illegal Distribution of Controlled Substances to be very severe in nature.  CMS pointed out that Petitioner had knowingly and intentionally distributed and dispensed, with no legitimate medical purpose, over 100,000 pills containing Oxycodone.  CMS recounted that Petitioner sold the prescriptions to drug dealers and customers for cash.  CMS concluded that:

The specific facts underlying [Petitioner’s] criminal behavior, which led to his felony offenses call into question his trustworthiness, integrity, and judgment, as well as demonstrates a strong lack of concern for the safety and wellbeing of the individuals for whom he issued these prescriptions for controlled substances with no legitimate medical purpose.  CMS finds that [Petitioner’s] offenses are very severe, irresponsible, and represent a serious risk to the health and safety of those seeking prescriptions from [Petitioner].

CMS Ex. 8 at 3.  Petitioner did not dispute this assessment in his hearing request.

CMS’s assessment reflects the factual and legal allegations in the Information to which Petitioner pleaded guilty.  I have no difficulty concurring with CMS’s view that Petitioner’s felonious conduct was severe in the extreme because it manifested a complete lack of concern as to the safety and wellbeing of the individuals who would, without medical need or supervision, take the controlled substances he was prescribing.  Further, Petitioner wantonly assisted drug dealers in their destructive and illicit trade.  This factor weighs heavily in support of concluding that Petitioner’s felonies were detrimental to the best interests of the Medicare program.

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Concerning the factor as to when the offense occurred, CMS stated that Petitioner engaged in the felonious conduct from 2008 to September 2015.  CMS acknowledged that the conduct ceased some years ago; however, CMS also found it relevant that the conduct was seven years in duration.  CMS Ex. 8 at 3.  Again, Petitioner did not dispute this assessment.  Although, Petitioner testified at the medical licensing hearing that he has spent time since he ceased his criminal activity cooperating with law enforcement. 

CMS took the dates of Petitioner’s criminal activity from the Information.  Again, I concur with CMS that, while Petitioner’s conduct ended a little over six years before the issuance of the initial determination, the length of Petitioner’s conduct, approximately seven years, weighs in favor of finding Petitioner’s felonies to be detrimental to the best interests of the Medicare program.  Petitioner’s subsequent cooperation with law enforcement, which Petitioner said resulted in a reduced criminal sentence, is insufficient to offset CMS’s well-founded concerns as to the length of time Petitioner improperly provided prescriptions for opioids to drug dealers and individuals with no medical need for those opioids. 

Concerning the final factor, which is other relevant evidence, CMS considered three different matters. CMS first noted that, for purposes of revoking the Medicare enrollment of a physician under the regulations promulgated to implement 42 U.S.C. § 1395u(h)(8), a felony is considered per se detrimental to the best interests of the Medicare program if it is one for which an exclusion from participation in federal health care programs is required under 42 U.S.C. § 1320a-7(a).  42 C.F.R. §§ 424.530(a)(3)(i)(D), 424.535(a)(3)(ii)(D).  CMS concluded that Petitioner’s felony convictions require a mandatory exclusion because such an exclusion must be imposed when an individual has been convicted of a felony related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  42 U.S.C. § 1320a-7(a)(4).  A second matter CMS considered was the fact that Petitioner’s medical license had been suspended since 2018.  Finally, CMS considered that one of the purposes of the Preclusion List was to prevent prescription drug abuse as well as the misconduct that Petitioner admitted to committing.  CMS Ex. 8 at 3-4.  In support of this factor, the reconsidered determination stated the following: 

In addition, we also find relevant that the CMS Preclusion List was established to conform with a Congressional mandate (see Comprehensive Addiction and Recovery Act of 2016, P.L. 114- 198).  This mandate intended to establish a program to prevent prescription drug abuse under Medicare Parts C and D for Medicare beneficiaries.  [Petitioner’s] prescription of controlled substances outside the usual course of medical practice is the precise type of conduct that the CMS Preclusion List intended to deter within the Medicare

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program.  CMS “note[d] also that our proposal is of particular importance when considering the current nationwide opioid crisis” and that “the inclusion of problematic prescribers on the [P]reclusion [L]ist could reduce the amount of opioids that are improperly or unnecessarily prescribed by persons who pose a heightened risk to the Part D program and Medicare beneficiaries” (see 82 Fed. Reg. 56,336 at 56,444). 

CMS Ex. 8 at 4. 

I concur with CMS’s consideration of the three additional factors summarized above.  There is no doubt that Petitioner is subject to a mandatory statutory exclusion due to his felonious conduct and that such conduct is (for purposes of §§ 424.530(a)(3) and 424.535(a)(3)) per se detrimental to the best interests of the Medicare program.  This is strong evidence that his Petitioner’s name is properly in the Preclusion List.  Further, CMS properly considered the length of Petitioner’s medical license suspension and the purpose behind the creation of the Preclusion List. 

CMS concluded, based on the three factors it analyzed, the following:

[Petitioner’s] unlawful conduct calls into question his trustworthiness and good judgment.  This indicates to CMS that Medicare beneficiaries may be at risk if [Petitioner] is allowed to participate in the Medicare program.  Given the serious nature of [Petitioner’s] felony offenses, CMS maintains its determination to include [Petitioner] on the CMS Preclusion List.  Therefore, CMS finds that [Petitioner’s] felony convictions are detrimental to the best interests of the Medicare program and upholds his placement on the CMS Preclusion List.

CMS Ex. 8 at 4.  This assessment is soundly reasoned.  Therefore, I conclude that Petitioner’s felonies are detrimental to the best interests of the Medicare program and CMS properly placed Petitioner on the Preclusion List.

2. CMS had a legitimate basis to place Petitioner on the Preclusion List for ten years following his criminal conviction. 

The regulations provide varying lengths of time that an individual’s name will remain on the Preclusion List.  The relevant provision for this case states:

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Except as provided in paragraph (a)(5)(iv) of this section, an individual or entity, regardless of whether they are or were enrolled in Medicare, that is included on the preclusion list because of a felony conviction will remain on the preclusion list for a 10-year period, beginning on the date of the felony conviction, unless CMS determines that a shorter length of time is warranted.  Factors that CMS considers in making such a determination are as follows: -
(A) The severity of the offense.
(B) When the offense occurred.
(C) Any other information that CMS deems relevant to its determination.

42 C.F.R. § 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).

In his reconsideration request, Petitioner stated that he has not been able to participate in the Medicare program as a physician since his guilty plea on July 29, 2017, which was approximately five years ago.  CMS Ex. 7 at 1.  Petitioner sought a reduced length of time on the Preclusion List since he has already been unable to participate in the Medicare program for five years.  CMS Ex. 7 at 2.  Petitioner submitted character references, the transcript of his medical license hearing, as well as his sentence to probation in support of a reduced length of time on the Preclusion List.  CMS Ex. 7 at 2.

I briefly summarize Petitioner’s character references here.  One is a July 15, 2020 letter from a long-time friend, who is also a physician, who spoke to Petitioner’s positive qualities; however, she also indicated that she did not know or care about the trouble Petitioner had been in.  CMS Ex. 7 at 45.  Another is a September 17, 2020, letter from an attorney who represented Petitioner in a custody matter and who has known him for many years.  She attested to Petitioner’s community involvement as a volunteer.  CMS Ex. 7 at 46.  A September 14, 2020 letter from a retired United States Air Force colonel indicated that he has known Petitioner for more than 40 years and that Petitioner had been a dedicated physician who helped many people, even if they did not have health insurance.  CMS Ex. 7 at 47.  In an undated letter, an individual who appears to be a physician or other health care provider, explained that Petitioner was a compassionate practitioner and community advocate.  CMS Ex. 7 at 48.  In a September 13, 2020 letter, an individual who had known him for 15 years attested that Petitioner was both a supportive father to his children and a role model for the community.  CMS Ex. 7 at 49.  A September 12, 2020 email from a retired police officer stated that Petitioner was a dependable person.  CMS Ex. 7 at 50.  A February 17, 2022 email from a medical director of a medical center indicated that he was looking forward to Petitioner returning to work once his license is activated and meets the medical center’s credentialling process.  CMS Ex. 7 at 52.

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In the reconsidered determination, CMS noted that the same three factors for determining when a felony is detrimental to the best interests of the Medicare program must be considered when determining the length of time that an individual’s name will appear on the Preclusion List.  CMS Ex. 8 at 4.  As a result, CMS concluded, based on its analysis of those factors earlier in the reconsidered determination, that Petitioner’s name should be on the Preclusion List for a full ten years following his conviction.  CMS Ex. 8 at 4.

I concur with CMS’s assessment of the evidence in this case.  I acknowledge that the hearing transcript of the medical licensing hearing includes testimony from Petitioner that he has provided assistance to law enforcement and received a significantly reduced sentence because of it.  Further, Petitioner certainly has friends and colleagues who think highly of him, both professionally and personally.  However, these individuals knew Petitioner while he was selling prescription opioids to drug dealers and customers who had no medical need for those drugs.  It is, therefore, possible for Petitioner to be otherwise good and decent to his friends, family, and patients, while also engaging in behavior that is antithetical to his oath as a physician and in violation of federal law.  Their testimonials simply cannot ensure that Petitioner will not be a threat to those participating in the Medicare program.  Further, while I commend Petitioner for his cooperation with law enforcement, he also received a considerable benefit from that cooperation in the form of a reduced sentence that kept him from prison.  Therefore, I uphold CMS’s determination to include Petitioner’s name on the Preclusion List for the maximum time permitted.

VIII.    Conclusion

I affirm CMS’s inclusion of Petitioner’s name on the Preclusion List for ten years following the date of his conviction.