Sara A. Collier, M.D., DAB CR6214 (2023)

DECISION

Sara A. Collier, M.D., (Dr. Collier or Petitioner) appeals the reconsidered determination revoking her Medicare enrollment and billing privileges and placement on the Centers for Medicare & Medicaid Services (CMS) preclusion list.  For the reasons explained below, I find that there was a legitimate basis for CMS to revoke Petitioner’s Medicare enrollment and billing privileges, based on 42 C.F.R. § 424.535(a)(3) and (9), and for inclusion on the CMS preclusion list, based on 42 C.F.R. §§ 422.2 and 422.222.

1.  Background and Procedural History

Petitioner was enrolled in the Medicare program as a physician - general surgery.  CMS Exhibit (Ex.) 6 at 1.  A physician is considered a “supplier of services” or a “supplier” in the Medicare program.  42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202.  In an initial determination dated September 2, 2021, Dr. Collier was notified that her Medicare privileges were being revoked effective April 24, 2019 because of her felony conviction for Obtaining Controlled Dangerous Substance (CDS) by Fraud on that date, pursuant to the provisions of 42 C.F.R. § 424.535(a)(3).  CMS Ex. 2 at 1.  She was also notified at

Page 2

that time that she was being added to the CMS preclusion list because of the felony conviction.  Id.  On September 7, 2021, Dr. Collier was additionally notified that her Medicare privileges were being revoked effective April 24, 2019 for failure to disclose the felony conviction on her June 7, 2019 enrollment application and failure to report the felony conviction within 30 days, pursuant to the provisions of 42 C.F.R. §§ 424.535(a)(4) and (9).  CMS Ex. 2 at 5.

On September 13, 2021, Petitioner filed a request for reconsideration, asserting that she had sent a letter with all the necessary information to the hospital that was recredentialing her and believed that the required information had been disclosed at the time of the application.  Petitioner (P.) Ex. 2.  She further indicated in a letter dated October 3, 2021 that she believed the information she had provided in the letter had been provided to Medicare and she accepted responsibility for the failure to report within 30 days and was unaware of that requirement.  P. Ex. 3.  However, in a reconsidered determination dated December 17, 2021, CMS upheld the revocation of Petitioner’s Medicare enrollment and billing privileges under the provisions of 42 C.F.R. § 424.535(a)(3), (4), and (9).  CMS Ex. 1 at 11.  CMS also upheld the 10-year reenrollment bar and the determination to include Petitioner on the preclusion list, effective the date of that determination.  Id.

Dr. Collier timely filed a request for hearing (RFH) on February 15, 2022.  The case was assigned to Judge Tannisha Bell, who issued a Standing Prehearing Order (Order) on February 16, 2022¹ .  In its prehearing exchange, CMS filed Respondent’s Motion for Summary Judgment or Pre-Hearing Brief (CMS Br.) and nine proposed exhibits.  Petitioner filed Petitioner’s Response To Respondent’s Motion for Summary Judgment and Petitioner’s Pre-Hearing Brief (P. Br.) and 14 proposed exhibits.  There were no objections to either party’s proposed exhibits² .  CMS Exhibits (Exs.) 1-9 and P. Exs. 1-14 are, therefore, admitted into the record.

According to the Order, an in-person hearing to cross-examine witnesses is necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross examine.  Order at 6 ¶ 12.  Neither party has offered the written direct testimony of

Page 3

any witness as part of its prehearing exchange.  As a result, an in-person hearing is not necessary, and I issue this decision based on the written record.³   Order at 7 ¶ 13.

2. Issues

Whether CMS had a legitimate basis for revoking Petitioner’s enrollment and billing privileges, pursuant to the provisions of 42 C.F.R. § 424.535(a)(3),(4) and (9); and

Whether CMS had a legitimate basis for including Petitioner on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 422.222.

3. Jurisdiction

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

4. Findings of Fact, Conclusions of Law, and Analysis⁴ 

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to establish regulations for enrolling providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  Suppliers must enroll in the Medicare program and receive a billing number in order to obtain payment for services rendered to Medicare beneficiaries.  42 C.F.R. § 424.505.  The regulations delegate CMS the authority to revoke the enrollment and billing privileges of suppliers.  42 C.F.R. § 424.535(a).  CMS or a Medicare contractor may revoke a supplier’s Medicare enrollment and billing privileges for a number of specified reasons, including, as relevant here, conviction of a felony or failure to comply with reporting requirements.  42 C.F.R. § 424.535(a)(3), (4), (9).  After CMS revokes a supplier’s enrollment and billing privileges, CMS bars the supplier from reenrolling in the Medicare program for a minimum of one year but not greater than 10 years.  42 C.F.R. § 424.535(c)(1)(i).  CMS may also include a supplier on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 422.222.

Page 4

1. The evidence establishes that there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(3).

42 C.F.R § 424.535(a)(3) provides, in relevant part, that CMS may revoke a currently enrolled supplier’s Medicare enrollment and any corresponding supplier agreement if the supplier was, within the preceding 10 years, convicted (as the 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. Offenses include any felonies that would result in mandatory exclusion under section 1128(a) of the Act. 42 C.F.R. § 424.535(a)(3)(ii)(D). Section 1128(a)(4) of the Act requires mandatory exclusion from participation in any Federal health care program of any individual who has been convicted of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

The facts in this matter are not in dispute.  Dr. Collier is a licensed physician enrolled in the Medicare program.  CMS Ex. 6.  On October 17, 2018, she was charged in Oklahoma County District Court with Attempting to Obtain CDS by a Forged Prescription on February 7, 2018 and Obtaining a CDS by Fraud on January 15, 2018 and January 23, 2018, in violation of Section 2-407 of Title 63 of the Oklahoma Statutes.  CMS Ex. 4 at 1.  The charges were initiated as the result of her arrest on February 7, 2018 while she was in possession of a fraudulent Oxycodone prescription depicting her name, appearing to have been written by Dr. Stephen Gauthier, and two blank prescriptions from lntegris Baptist Medical Center.  CMS Ex. 7 at 1.  During a subsequent investigation by the Oklahoma State Board of Medical Licensure and Supervision (State Board), she confessed to a Medical Board Investigator that she did forge Oxycodone prescriptions for herself, in addition to writing Oxycodone, Xanax and Adderall prescriptions to her husband, for her own personal use.  CMS Ex. 7 at 2.  She admitted that she had written 55 prescriptions for controlled dangerous substances for her husband over the past three years and did not keep a patient record for him.  Id.  Petitioner confirmed that, at the time of her arrest, she was 30 weeks pregnant and admitted to abusing Marijuana, Oxycodone, Adderall, and Xanax during her pregnancy.  Id.

On April 24, 2019, Dr. Collier entered a guilty plea to all charges.  CMS Ex. 3 at 8.  She received a deferred sentence until April 23, 2024 and was placed on Supervised Probation.  Id. at 9, 14.  On March 21, 2022, The District Court of Cleveland County, State of Oklahoma, issued an Order terminating the deferred judgment previously entered, dismissing the matter, and expunging/sealing the record.  P. Ex. 14.

Page 5

Following its investigation, the State Board issued an Order finding Petitioner guilty of unprofessional conduct, including dishonorable or immoral conduct which is likely to deceive, defraud, or harm the public, confession of a crime involving violation of the antinarcotic laws of the federal government or the state, and writing false or fictitious prescriptions for narcotics.  CMS Exs. 7 at 3; CMS Ex. 8.  Dr. Collier was placed on probation for 5 years with restrictions on her license to practice and requirements for treatment.  CMS Ex. 8 at 5-8.

Petitioner does not dispute the underlying facts.  Instead, she initially asserts that she was never “convicted” of a felony offense.  She cites a letter from her attorney dated January 22, 2019 in which he stated that, under Oklahoma law, a Deferred Judgment “is not a conviction” and, upon completion of all conditions, she will “be discharged without a court judgment of guilt.”  P. Ex. 5 at 1.  Petitioner also makes many references in her brief to the “Deferred Sentence”, rather than the felony, i.e., P. Br. at 7, 10, 11, 12.  However, the question of what constitutes a “conviction” for the purposes of Federal laws designed to protect the Medicare program and its beneficiaries is clearly defined in the regulations and has been settled by the Board.

The relevant regulation broadly defines the term “convicted”.  Under the provisions of 42 C.F.R. § 1001.2, convicted is defined as: 

(a) A judgment of conviction has been entered against an individual or entity by a Federal, State or local court, regardless of whether:

(1) There is a post-trial motion or an appeal pending, or

(2) The judgment of conviction or other record relating to the criminal conduct has been expunged or otherwise removed;

(b) A Federal, State or local court has made a finding of guilt against an individual or entity;

(c) A Federal, State or local court has accepted a plea of guilty or nolo contendere by an individual or entity; or

(d) An individual or entity has entered into participation in a first offender, deferred adjudication or other program or arrangement where judgment of conviction has been withheld.

Under the regulatory provisions, “convicted” would include situations in which the judgement of conviction has been expunged or otherwise removed.  The Board has rejected the argument that a deferred adjudication under Texas law was not a “conviction” for purposes of the revocation statute.  Kimberly Shipper, P.A., DAB No.

Page 6

2804 at 7 (2017), citing Lorrie Laurel, PT, DAB No. 2524 at 4-6 (2013) (holding that a Florida court’s acceptance of a guilty plea constituted a “conviction” for purposes of revocation of Laurel’s Medicare participation even though the court withheld adjudication of guilt); see also Henry L. Gupton, DAB No. 2058 at 4-12 (2007) (finding court’s acceptance of guilty plea a “conviction” for purposes of Office of Inspector General exclusion, notwithstanding state court’s deferral of judgment and ultimate expungement of record), aff’d sub nom. Gupton v. Leavitt, 575 F. Supp. 2d 874, 880 (E.D. Tenn. 2008) (“This court agrees with the Secretary’s interpretation of the statute and the conclusion that Dr. Gupton was ‘convicted.’”).  The Board also noted that the United States Court of Appeals for the Fifth Circuit held that a Texas deferred adjudication constituted a “conviction” or “the functional equivalent of a final conviction” within the meaning of the term as it appears in section 4B1.5(a) of the United States Sentencing Guidelines, even though the Guidelines did not expressly define “conviction.”  United States v. Mills, 843 F.3d 210, 213-217 (5th Cir. 2016), cert. denied, 137 S. Ct. 1601 (2017); Shipper, DAB No. 2804 at 7.

Petitioner entered a Plea of Guilty to charges of Obtaining CDS by Fraud, in violation of 63 O.S. 2-407, which was accepted by the District Court on April 24, 2019.  CMS Ex. 3.  Under the above provisions, the deferred sentence that was imposed and subsequent dismissal of the matter and expungement of the record does not change the finding that there was a “conviction” of a felony under the governing regulation and Board interpretations.

Petitioner then argues that “the offenses listed at 42 C.F.R. § 424.535(a)(3)(ii)(A)-(D) are examples of offenses that Respondent could determine are detrimental to the best interests of the Medicare program and its beneficiaries after a case-by-case analysis of the offense.  Respondent still must make a case-by-case determination that the offenses are detrimental to the best interests of the Medicare program and its beneficiaries.  Thus, to classify these offenses are per se detrimental is a misstatement of the law.”  P. Br. at 6-7.  However, Petitioner is mistaken on this point.

The Secretary, by regulation, has determined that crimes that would result in a mandatory exclusion, such as a felony related to the unlawful prescription of a controlled substance to which Petitioner pled guilty, are not merely examples but, in fact, are felony offenses that are detrimental to the best interests of the Medicare program and its beneficiaries.  The Board has previously held that subparagraphs (A) – (D) of section 424.535(a)(3)(ii) specify certain felonies, including those criminal offenses that would result in a mandatory exclusion under section 1128(a)(1) of the Act, that the Secretary has determined are per se detrimental to the best interests of the Medicare program and its beneficiaries.  Fady Fayad, M.D., DAB No. 2266 at 4 (2009), aff’d, 803 F. Supp. 2d 699 (E.D. Mich. 2011) at 4, citing Letantia Bussell, M.D., DAB No 2196 at 9-10 (2008). Thus, there is no regulatory requirement to make a “case-by-case” analysis of the felony in this case in order to find that it is detrimental to the best interests of the Medicare

Page 7

program and its beneficiaries.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, 710 F. Supp. 2d 167 (D. Mass. 2010).

Petitioner next argues that the “Deferred Sentence” would not necessarily result in mandatory exclusion under section 1128(a) for two reasons.  She initially asserts that “OIG has not determined that Petitioner’s conviction is subject to mandatory exclusion under Section 1128(a).”  P. Br. at 8.  However, the regulation does not require any such action for CMS to revoke enrollment under those provisions.  42 C.F.R. § 424.535(a)(3)(ii)(D) indicates that CMS may revoke the enrollment of a supplier for “felonies that would result in mandatory exclusion under section1128(a) of the Act.”  (emphasis added).  The regulation does not use the past tense, such as “have resulted in mandatory exclusion” or “did result in mandatory exclusion,” which would tend to support Petitioner’s argument.  The fact that the OIG has not yet excluded Petitioner provides no basis to conclude that her conviction falls outside the scope of the requirements for a mandatory exclusion under section 1128(a), under the provisions of 42 C.F.R. § 424.535(a)(3)(ii)(D).

Petitioner then asserts that CMS failed to consider “the presence of the statutorily recognized mitigating factors applicable to Section 1128(a) and the regulations governing the length of exclusion in section 1001.102.”  P. Br. at 8-9.  However, the regulations governing revocations by CMS do not require consideration of the factors in section 1001.102, which govern the length of the exclusion by OIG.  Moreover, mitigating factors are considered under the provisions of 42 CFR § 1001.102(c) only after aggravating factors have been used to justify an exclusion longer than 5 years.  There is nothing in 42 C.F.R. § 1001.102 that indicates that aggravating and mitigating factors are to be considered in the determination to exclude under section 1001.101, which is the sole relevant consideration under 42 C.F.R. § 424.535(a)(3)(ii)(D).

Based on the above, I find that the record establishes that Petitioner was, within the preceding 10 years, convicted of a State felony offense that would result in mandatory exclusion under section 1128(a) of the Act, which CMS has determined is detrimental to the best interests of the Medicare program and its beneficiaries.  As a result, there was a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under the provisions of 42 C.F.R. § 424.535(a)(3).

2. The evidence does not establish that there was a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(4).

42 C.F.R. § 424.535(a)(4) provides that CMS may revoke a currently enrolled supplier’s Medicare enrollment if the supplier certified as “true” misleading or false information on

Page 8

the application to be enrolled or maintain enrollment in the Medicare program.  In the reconsidered determination, CMS stated that

[o]n June 7, 2019, Dr. Collier submitted a Medicare enrollment application via PECOS.  On Section 3:  Final Adverse Legal Actions, Dr. Collier answered “yes” to the question “[h]as a final adverse legal action ever been imposed against an applicant under any current or former name or business entity?”  However, Dr. Collier only disclosed her adverse legal history related to her Oklahoma medical license and failed to disclose her felony conviction for Obtaining CDS by Fraud.

CMS Ex. 1 at 6.  CMS further stated that “Dr. Collier signed the Certification Statement on her Medicare enrollment application thereby attesting the information provided was true and correct,” concluding that her “incomplete answer” to the question about final adverse legal action was “misleading.”  Id.  It cites as support for these conclusions a Medicare enrollment application submitted by Petitioner on June 7, 2019.  Id.

Petitioner asserts that she did provide details of her adverse legal history in a letter submitted to the McCurtain Memorial Hospital’s credentialing team and has reason to believe that this information was received by Medicare because of the subsequent reference to “Adverse Legal Action/Conviction” document cited in CMS Ex. 6 at 4.  P. Br. at 12-13.

The difficulty here is that there is little, if any, direct evidence to substantiate CMS’s position.  It cites CMS Ex. 6 as evidence of the failure to disclose the complete adverse legal history.  However, CMS Ex. 6 is only a report of Petitioner’s application history.  That report does reference a CMS-460 Form and an “Adverse Legal Action/Conviction” document, both uploaded on June 7, 2019.  CMS Ex. 6 at 4.  The problem is that neither of those original documents was submitted for the record.  As a result, it is impossible to determine what Petitioner did or did not disclose in Section 3 of the referenced application.  In the reconsidered determination, CMS also referred to instructions for completing the required forms that would have put Petitioner on notice of the need to report the felony and the language in the Certification Section that she allegedly signed.  CMS Ex. 1 at 6.  However, none of these references were corroborated by the evidence of record.  CMS Ex. 6 does not contain any of that specific information.

The Board applies to provider and supplier enrollment appeals the same burden of proof that it applies to other cases subject to the appeal procedures in Part 498.  See Promptcare New England Respiratory, LLC, DAB No. 2673 at 7-8 (2016); see also Ronald J.

Page 9

Grason, M.D., DAB No. 2592 at 5 (2014).  Applying that standard to appeals of enrollment revocations, CMS has the burden of coming forward with evidence that establishes a prima facie case that the cited basis for the revocation exists.  Only when CMS meets this burden does the burden shift to the petitioning supplier to prove its case, that is, to rebut the basis for the revocation, by a preponderance of the evidence.  In this case, CMS was required to make a prima facie case, with evidence, that Petitioner certified as “true” misleading or false information on the application to maintain enrollment in the Medicare program.  In this case, it has not.  Mere statements that there was a misleading statement about Final Adverse Legal Actions are not enough to establish a prima facie case.  As a result, I cannot find that CMS has established a prima facie case for revocation under 42 C.F.R. § 424.535(a)(4).

3. The evidence establishes that there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(9).

42 C.F.R. § 424.535(a)(9) provides, as relevant herein, that CMS may revoke a currently enrolled supplier’s Medicare billing privileges if the supplier did not comply with the reporting requirements specified in § 424.516(d)(1)(ii) of this subpart.  That section of the regulations requires physicians to report any “adverse legal action” within 30 days.

CMS asserts that Petitioner was convicted of a state felony on April 24, 2019 and this was not reported to CMS within 30 days.  CMS Ex. 1 at 7.  Petitioner does not assert that she reported this adverse legal action within the specified time period.  Instead, she raises two arguments.  Dr. Collier first asserts that the felony conviction was reported “within approximately 44 days of the Deferred Sentence, which is only 14 days past the deadline.  It is an abuse of CMS’s discretion to revoke Petitioner’s Medicare enrollment for missing the deadline by two weeks.”  P. Br. at 16.  A review of 42 C.F.R. § 424.516(d)(1)(ii) gives no indication that there is a grace period for reporting the specified occurrences.  That section of the regulations simply indicates a physician “must” report the specified event within 30 days.  Moreover, I am unaware of any authority for finding that applying a validly promulgated regulation is an abuse of discretion by CMS nor does Petitioner cite any such authority.  As a result, I do not find this argument to be persuasive on this issue.

Petitioner then argues that CMS “failed to give adequate weight to the fact that Petitioner was not aware of the reporting obligation” and she had placed “good faith reliance upon her criminal counsel’s advice and the counsel’s letter of support, that Petitioner had not been convicted of any criminal offense.”  P. Br. at 16.  Dr. Collier has submitted

Page 10

statements attesting to her lack of awareness of the reporting requirements and the absence of any intention to deceive.  P. Ex. 3 at 2, P. Ex. 2.  There is absolutely no reason to doubt the sincerity of her statements.  However, genuine lack of awareness does not excuse the obligation to report the events specified in 42 C.F.R. § 424.516(d)(1)(ii).  Courts and the Board have consistently held that “Medicare providers and suppliers, as participants in the program, have a duty to familiarize themselves with Medicare requirements.”  Francis J. Cinelli, Sr., D.O., DAB No. 2834 at 10 (2017) (citing Gulf South Medical, DAB No. 2400 at 9 (2011)); John Hartman, D.O., DAB No. 2564 at 3 (2014) (quoting Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 63 (1984) (“those who deal with the government are expected to know the law[.]”))

Finally, Petitioner has argued that revocation would render her unable to: 

[C]ontinue to care for a large percentage of the people of southeastern Oklahoma.  This will not only impact my ability to care for my current patients, but also my career as a whole as it will be very difficult to keep my current job and/or get a new job since I would be unable to care for a large portion of the population.  Not only will this devastate my career but also my family because I am the sole provider for my husband and 2 small children with whom he stays home to care for.

P. Ex. 3 at 1-2.  I fully recognize that the revocation has likely resulted in harsh consequences for Petitioner and her family.  However, to the extent that this request for relief is based on principles of equity, I have no authority to grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  The DAB has consistently held that neither it nor the ALJ has authority to reverse an authorized revocation for reasons of equity.  See, e.g., Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016) (the ALJ and the DAB may not “restore a supplier’s billing privileges on equitable grounds.”); Horace Bledsoe, M.D., and Bledsoe Family Medicine, DAB No. 2753 at 11 (2016) (declining to rule on petitioners’ estoppel claim and stating that the DAB may not overturn CMS’s lawful revocation of petitioners’ billing privileges on equitable grounds).  As such, I cannot grant Petitioner’s request for relief on the basis of equity.

The ultimate question before me is not whether I would have taken the action imposed by CMS in this case or whether I agree with this action.  Rather, my inquiry in this matter is limited to whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges.  As the Board noted, the right to review of CMS’s determination by an

Page 11

ALJ serves to determine whether CMS had the authority to revoke a physician’s Medicare billing privileges, not to substitute the ALJ’s discretion about whether to revoke.  Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (citing Michael J. Rosen, M.D., DAB No. 2096 at 14 (2007)); see also Fayad, M.D., DAB No. 2266 at 16 (if CMS establishes a qualifying felony conviction as the basis for revocation, the Board must uphold revocation without regard to factors, such as the scope or seriousness of the supplier’s criminal conduct, that CMS might reasonably have weighed in determining whether to revoke), aff’d, Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011). In this case, two of the stated bases for revocation⁵ , that of Petitioner’s conviction of a felony that would result in mandatory exclusion under section 1128(a) of the Act and her failure to comply with the reporting requirements specified in 42 C.F.R. § 424.516(d)(1)(ii), are grounded in law and fact.  Accordingly, I find that CMS had a legitimate basis for revoking Petitioner’s Medicare enrollment and billing privileges, pursuant to the provisions of 42 C.F.R. § 424.535(a)(3) and (9).

4. I have no jurisdiction to adjudicate the 10-year reenrollment bar.

In the reconsidered determination dated December 17, 2021, CMS upheld the duration of the re-enrollment bar established under § 424.535(c).  CMS Ex. 1 at 11.  Petitioner has argued that CMS did not have a legal basis for imposing a re-enrollment bar for any length of time because it did not have a legal basis for revoking Petitioner’s billing privileges.  P. Br. at 17.  Having determined above that there was a legal basis to revoke Petitioner’s billing privileges, this argument is not further addressed.  However, Petitioner further asserts that CMS abused its discretion by imposing a 10-year re-enrollment bar when another physician in similar circumstances only faced a 3 year bar, citing Blair Allen Nelson, M.D., DAB No. 3024 (2020).  P. Br. at 19⁶ .

While Petitioner cites Nelson for the argument that it was an abuse of discretion to impose a 10 year re-enrollment bar in this case when the physician in Nelson only

Page 12

received a 3 year bar, the Board in that case made clear “the ALJ and the Board have no authority to review CMS’s exercise of its discretion to revoke Petitioner’s billing privileges” and, therefore, “no authority to determine whether that exercise [of discretion] was arbitrary and capricious based on the mitigating circumstances alleged by Petitioner.”  Nelson at 11, citing Saeed A. Bajwa, M.D., DAB No. 2799 at 16 (2017); see also Lilia Gorovits, M.D.,P.C., DAB No. 2985 at 17 (2020); Douglas Bradley, M.D., DAB No. 2663 at 13 (2015). 

Moreover, the only CMS actions subject to appeal under 42 C.F.R. part 498 are the initial determinations specified in 42 C.F.R. § 498.3(b). The DAB has held that CMS’s determination of the length of the reenrollment bar under section 498.535(c) is not subject to review, explaining:

[a]lthough the re-enrollment bar is a direct and legally mandated consequence of an appealable revocation determination, nothing in Part 498 authorizes the Board to review the length of the bar despite that relationship between a revocation and a reenrollment bar.  Given section 498.3(b)’s precise and exclusive enumeration of appealable determinations, we cannot find a CMS action to be appealable under Part 498 unless section 498.3(b) describes the subject matter of that action.  See North Ridge Care Ctr., DAB No. 1857 at 8 (2002) (stating that “[b]y its very terms, Part 498 provides appeal rights only for these listed actions” (italics added)).  On its face, section 498.3(b) does not describe any matter related to a post-revocation re-enrollment bar.

Vijendra Dave, M.D., DAB No. 2672 at 10 (2016).

Petitioner cites no contrary authority. Given this holding by the DAB, I have no regulatory authority to review the length of the reenrollment bar.

5. The evidence establishes that CMS had a legitimate basis to include Petitioner on the CMS preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 422.222.

In the reconsidered determination dated December 17, 2021, CMS upheld the earlier determination to include Petitioner on the CMS preclusion list, effective the date of that determination, pursuant to the provisions of 42 C.F.R. §§ 422.2(1) and (3).  CMS Ex. 1 at 11.  Under the provisions of 42 C.F.R. § 422.2(3), included on the list are individuals

Page 13

who have 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) and other information that CMS deems relevant to its determination.  As held above, I have found that Petitioner was convicted of a felony under Federal or State law within the previous 10 years that CMS deemed detrimental to the best interests of the Medicare program.  In the reconsidered determination, CMS concluded that the felony of Obtaining CDS by Fraud was a very severe offense, was fairly recent, went on for nearly a year, and threatened the integrity of the Medicare program because Petitioner’s actions demonstrated a propensity to be dishonest and misuse private or personal information.  CMS Ex. 1 at 8-9.

Petitioner does not directly argue that the factors specified in the regulation were not considered by CMS.  Instead, she asserts that she “presented mitigating factors to Respondent that, if properly considered by Respondent, should result in finding a shorter length of time is warranted” and because “Respondent disregarded the mitigating factors”, it “did not have a legal basis for including [her] on the CMS Preclusion List for a period of 10-years.”  P. Br. at 21. 

In considering this argument, it is initially noted that 42 C.F.R. § 422.2 does not require, or even make reference to, consideration of mitigating factors.  Moreover, I lack authority to review the length of time Petitioner is included on the preclusion list.  42 C.F.R. § 422.222(a)(5)(i) states that, “[e]xcept as provided in paragraphs (a)(5)(iii) and (iv) of this section, an individual or entity that is revoked under § 424.535 of this chapter shall be included on the preclusion list for the same length of time as the individual’s or entity’s reenrollment bar.”  Petitioner’s Medicare billing privileges were revoked, as discussed above, under sections 424.535(a)(3) and (9).  CMS determined that Petitioner would remain on the preclusion list for 10 years, based on her reenrollment bar.  CMS Ex. 1 at 11.  I cannot disturb that determination because I cannot review the length of the re-enrollment bar, as discussed above.  42 C.F.R. § 422.222(a)(5)(iii) does indicate that an individual included on the preclusion list because of the 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.  Because CMS did not make that determination, I have no authority to modify the length of the preclusion list.

Finally, I have considered Petitioner’s statement that CMS disregarded “mitigating circumstances” in its findings on the revocation, reenrollment bar, and placement on the preclusion list as an argument for equitable relief.  P. Br. at 21.  Petitioner cites, as mitigating circumstances, her compliance with all treatment requirements and the need for her medical services in rural Oklahoma.  P. Br. at 21-25.  I have no doubt about the

Page 14

accuracy of these statements.  However, as compelling as these arguments may be, I have no authority to grant any relief based on equity, as discussed in detail above.  US Ultrasound, DAB No. 2302 at 8; Brueggeman, DAB No. 2725 at 15; Bledsoe, DAB No. 2753 at 11.  As such, I cannot grant Petitioner’s request for relief on that basis.

5. Conclusion

For the foregoing reasons, I affirm CMS’s revocation of Petitioner’s enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(3) and (9), and affirm CMS’s placement of Petitioner on the preclusion list, pursuant to 42 C.F.R. §§ 422.2 and 422.222.

---

Endnotes

¹   This case was reassigned to me on October 25, 2022.

²   Petitioner acknowledges that P. Ex. 14 is new documentary evidence submitted for the first time at the ALJ level but asserts that good cause for the submission is established because this document did not exist until March 21, 2022 and the district court’s actions “are at the heart of this matter.”  P. Br. at 3.  CMS has filed no objection to the admission of this document.  As a result, I find there is good cause for its admission, under the provisions of 42 C.F.R. § 498.56(e)(2)(i).

³  Because a hearing is not necessary, I need not decide whether summary judgment is appropriate.

⁴   My findings of fact and conclusions of law are set forth in bold italics below.

⁵  Concluding that CMS had established one of the bases for revocation enumerated in the regulations is all that is necessary to uphold revocation.  Donna Maneice, M.D., DAB No. 2826 at 8 (2017) (“CMS needs to establish only one ground for revocation”).

⁶   Nelson is an interesting decision to cite, for many reasons.  It reinforces the conclusion set forth above that because the conviction of a felony related to the unlawful prescription of a controlled substance “would result in a mandatory exclusion under section 1128(a)(4), CMS determined it to be per se detrimental to the best interests of the Medicare program and its beneficiaries.”  Nelson, DAB No. 3024at 8.