Annette M. Bosworth, M.D., DAB CR6233 (2023)

DECISION

Petitioner, Annette M. Bosworth, M.D., is a South Dakota physician who was once enrolled in the Medicare program but no longer is.  On May 27, 2015, she was convicted on six felony counts of offering a false or forged instrument for filing with the state.  She did not report those convictions to the Centers for Medicare & Medicaid Services (CMS).  Based on her convictions and her failing to report, the Medicare contractor, Noridian Healthcare Solutions, revoked her Medicare enrollment and billing privileges, followed by a three-year reenrollment bar, which expired on March 26, 2019.  She has not reenrolled. 

CMS subsequently added Petitioner’s name to the Medicare Preclusion List and determined that she would remain on the list for ten years.  Petitioner appeals that determination.  

I find that CMS is authorized to include Petitioner Bosworth on the Preclusion List because, within the preceding ten years, she was convicted of a felony offense that CMS reasonably determined is detrimental to the best interests of the Medicare program.  She remains on the Preclusion List for ten years.  However, because the Preclusion List did not exist until January 1, 2019, the effective date can be no earlier than that date.

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Background

By letter dated June 16, 2021, CMS advised Petitioner that she was being added to the CMS Preclusion List.  As the letter explains, CMS acted pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6), because, within the previous ten years, Petitioner was convicted of a felony offense that CMS deems detrimental to the best interests of the Medicare program.  CMS Ex. 4 at 3. 

Petitioner requested reconsideration.  CMS Ex. 4.  

In a reconsidered determination, dated February 1, 2022, a CMS hearing officer upheld the initial determination.  CMS Ex. 1.  The hearing officer agreed that including Petitioner on the Preclusion List was proper because, within the previous ten years, she was convicted of a felony offense detrimental to the Medicare program.  CMS Ex. 1 at 3-5.  The hearing officer also determined that the effective date of the reconsidered determination, February 1, 2022, became the date that Petitioner was added to the Preclusion List.  CMS Ex. 1; CMS Ex. 4 at 3.   

Petitioner timely appealed. 

Hearing on the written record.  CMS moves for summary judgment, which Petitioner opposes.  Petitioner argues that I should deny summary judgment because a material fact is in dispute:  whether Petitioner had a felony conviction at the time CMS placed her on the Preclusion List.  As discussed below, the underlying facts here are not in dispute.  Whether these facts mean that Petitioner was “convicted,” within the meaning of the Medicare statute and regulations is a question of law and does not preclude me from entering summary judgment. 

Nevertheless, I need not decide this case on summary judgment.  My initial order instructs the parties to list any proposed witnesses and to submit their written direct testimony.  Acknowledgment and Prehearing Order at 4, 5 (¶¶ 4(c)(iv), 8) (April 1, 2022).  Neither party lists any witnesses.  An in-person hearing would therefore serve no purpose, and I may decide this case based on the written record without considering whether the standards for summary judgment are met.  

Exhibits.  CMS submits its motion and brief (CMS Br.) with seven exhibits (CMS Exs. 1-7).  Petitioner submits her brief in opposition to CMS’s motion (P. Br.), along with two attachments and two exhibits (P. Exs. 101-102). 

In the absence of any objections, I admit into evidence CMS Exs. 1-7.

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CMS’s objections to Petitioner’s submissions are confusing.  CMS asserts that it objects to Petitioner’s attachments but its objections more closely apply to Petitioner’s exhibits.  In responding to CMS’s objections, Petitioner discusses the exhibits, not the attachments. 

CMS objects to my admitting the “attachments” because:  1) they are irrelevant; and 2) Petitioner did not submit them at the reconsideration level and has not shown good cause for its failing to do so.  While Petitioner did not submit either the exhibits or the attachments at the reconsideration level, only the exhibits are irrelevant.  As explained below, the attachments are relevant, and I am unwilling to disregard them. 

I decline to admit P. Exs. 101 and 102 because they are irrelevant and because they are submitted for the first time at this level of review, and no good cause justifies Petitioner’s failure to admit them at the reconsideration level. 

• P. Ex. 101 is a document that shows the results of Petitioner’s record search of the South Dakota State Courts’ database, looking for all records of her criminal convictions.  It shows just two convictions, both for speeding, and no felony conviction for offering a false or forged instrument.
• P. Ex. 102 is a copy of the South Dakota statute, which directs the court to seal records of people whose convictions have been discharged after they have completed a period of probation. 

These documents are irrelevant.  They address the question of whether Petitioner remains convicted of a felony under state law.  As I explain below, federal, not state, law determines whether Petitioner has been convicted of a felony. 

But even if they were relevant, I would not admit them.  I am required to examine any new documentary evidence to determine whether the provider has good cause for submitting it for the first time at the ALJ level of review.  If I find that good cause does not exist, I must exclude the evidence and may not consider it in reaching a decision.  42 C.F.R. § 498.56(e); see 42 C.F.R. § 405.803(e). 

As good cause, Petitioner points out that CMS initially sent its May 19, 2021 and June 16, 2021 notice letters to the wrong address and that she did not receive them until December 6, 2021.  For that reason, CMS found good cause for allowing reconsideration, even though her request was ostensibly “untimely.”  P. Br. in Opposition to Motion to Exclude New Evidence at 4-5.¹  Petitioner argues that I should accept the documents

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because the notices arrived late and because, despite her repeated requests, CMS did not give her any information on why it believed she had a felony conviction.²  When she submitted her request for reconsideration, she did not have in hand a copy of her criminal history or a copy of the state law.  P. Br. in Opposition at 5. 

I find disingenuous Petitioner’s claim that she had no idea how CMS concluded that she had been convicted of a felony.  Even without the notice letters, she could not have forgotten that she had once been convicted of felonies, notwithstanding the courts’ later actions.  Moreover, the notice letters answered any questions she had about why CMS determined that she had been convicted.  They are explicit:

CMS has been made aware of your May 27, 2015, felony conviction, as defined in 42 C.F.R. § 1001.2, for Offering a False or Forged Instrument for Filing[,] in violation of South Dakota Codified Laws 22-11-28.1 and Perjury[,] in violation of South Dakota Codified Laws 22-29-1, 22-29-8, and 22-29-10, in the South Dakota Sixth Judicial Circuit Court. 

CMS Ex. 4 at 3, 6. 

Petitioner also claims that she did not understand that her email requesting reconsideration “would be construed as her one and only opportunity to make an argument for reconsideration.”  P. Brief in Opposition at 5.  Obviously, her request for reconsideration was not her only opportunity to argue that she had not been convicted.  She is free to submit arguments (which she has) or testimony (which she has not).  The regulation applies only to documentary evidence.  42 C.F.R. § 498.56(e); see 42 C.F.R. § 405.803(e). 

In advising Petitioner of her right to request reconsideration, the notice letters also advised her that she could submit additional information that may have a bearing on the decision.  The contractor warned:

However, if you have additional information that you would like a Hearing Officer to consider during the reconsideration or, if necessary, an Administrative Law Judge (ALJ) to consider during a hearing, you must submit that information with your request for reconsideration.  This is your

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only opportunity to submit information during the administrative appeals process unless an ALJ allows additional information to be submitted. 

CMS Ex. 4 at 4, 7 (emphasis added). 

Petitioner also claims that she did not possess a copy of her criminal history (P. Ex. 101) on December 6, when she requested reconsideration.  P. Br. in Opposition at 5.  But Petitioner knew, or should have known, that her conviction was central to CMS’s determination to put her name on the Preclusion List.  Assuming she thought that the state’s view of her criminal history was significant (which it is not), she could have obtained a copy of the document.  It is public information and readily available.  Moreover, although the notice told her to submit her information with her request for reconsideration, she was not required to submit any documentary evidence on December 6.  She was required to submit her documentary evidence “before the contractor issue[d] its decision.”  42 C.F.R. § 405.803(e). 

I note also that the parties may cite to statutes without my admitting them as exhibits. 

Because no good cause justifies Petitioner’s failing to submit the documents at the reconsideration stage, I must exclude the evidence and may not consider it in reaching my decision.  Mohammad Nawaz, M.D., & Mohammad Zaim, M.D., PA, DAB No. 2687 at 12-13 (2016), aff’d, Nawaz v. Price, 2017 WL 2798230 (E.D. Tex. 2017) (finding that the ALJ did not abuse his discretion when he did not find good cause to admit documents not offered at reconsideration because the regulation itself provided notice of the requirement to provide all documents on reconsideration). 

I therefore decline to admit P. Exs. 101-102.  In any event, as the following discussion shows, the documents are irrelevant. 

Attachments.  Petitioner’s two attachments constitute documentary evidence and should have been submitted at the reconsideration level.  P. Attachment 2 is a state court opinion and order, reviewing and remanding the state medical board’s decision to revoke Petitioner’s medical license.  P. Attachment 1 is the state medical board’s subsequent decision, reversing its decision to revoke.  Petitioner has not shown good cause for submitting these documents for the first time at this level of review. 

Nevertheless, I cannot ignore these documents without distorting reality.  No one disputes that the court and medical board issued these decisions; they are “outside of reasonable controversy,” within the meaning of the federal rules of evidence.  See Rule 201, Fed. R. Evid.  I will therefore take administrative notice of the documents and their contents.

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Discussion

1. CMS acted within its authority when it added Petitioner to its Preclusion List because, within the preceding ten years, she was convicted of felonies that CMS reasonably determined are detrimental to the best interests of the Medicare program.³

The Medicare Program.  The Medicare program, Title XVIII of the Social Security Act (Act) is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease.  Medicare is divided into four parts: 

• Part A is the hospital insurance program.  It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, home health, outpatient rehabilitation, and other services.  Act § 1832 (42 U.S.C. § 1395k);
• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health maintenance organizations, that receive a fixed payment for each enrollee.  Act § 1851 (42 U.S.C. § 1395w-21); and
• Part D is the voluntary prescription drug benefit program.  Act § 1860D (42 U.S.C. § 1395w-101). 

The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services.  CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes.  Act § 1842 (42 U.S.C. § 1395u).  Contractors pay claims to “providers” (Part A) and “suppliers” (Part B).  

Physicians, such as Petitioner, may participate in the program as “suppliers” of services.  Act § 1861(d), (q), (r) (42 U.S.C. § 1395x(d), (q), (r)); 42 C.F.R. § 400.202. 

Revocation.  Among other bases, CMS may revoke a physician supplier’s Medicare billing privileges if:

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• within the preceding ten years, she was convicted of a felony offense that CMS “has determined to be detrimental to the best interests of the program and its beneficiaries.”  Offenses for which billing privileges may be terminated include, but are not limited to, financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and similar crimes for which the individual was convicted, including adjudicated pretrial diversions.  42 C.F.R. § 424.535(a)(3)(ii)(B).
• she fails to report, within 30 days, any adverse legal action.  42 C.F.R. § 424.535(a)(9); see 42 C.F.R. § 424.516(d)(1)(ii). 

See also Act §§ 1842 (h)(8), 1861(r), and 1866(b)(2)(D). 

Here, CMS revoked Petitioner’s Medicare billing privileges and imposed a three-year reenrollment bar.  By the time CMS added Petitioner to the Preclusion List, she was no longer under a reenrollment bar.  Nevertheless, she was not enrolled in the Medicare program.  CMS Ex. 1 at 2; CMS Ex. 7 at 3. 

The Preclusion List.  Effective January 1, 2019, CMS implemented a “Preclusion List” as part of its effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees,” particularly with respect to prescription drug abuse.⁴  Medicare will not reimburse individuals and entities on the Preclusion List for items and services they supply (Part C) nor for prescriptions they may write (Part D).  Pursuant to 42 C.F.R. § 422.2 (Part C) and 42 C.F.R. § 423.100 (Part D), CMS’s “Preclusion List” includes individuals and entities that: 

(3) regardless of whether they are or were enrolled in Medicare, [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 under this paragraph (3) are i) the severity of the offense; ii) when the offense occurred; and iii) any other information that CMS deems relevant to its determination.

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42 C.F.R. §§ 422.2; 423.100 (defining “Preclusion List”). 

An individual included on the Preclusion List because of a felony conviction remains on that list for ten years, beginning on the date of the conviction, unless CMS determines that a shorter length of time is warranted.  42 C.F.R. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C). 

Petitioner’s offense.  Petitioner Bosworth was a primary care physician, licensed and practicing in South Dakota.  CMS Ex. 5 at 2; CMS Ex. 7 at 1-2.  She decided to run for United States Senate.  In order to get her name on the ballot, she had to submit to the South Dakota Secretary of State nominating petitions, containing voters’ signatures.  CMS Ex. 3 at 1.  She signed, under oath, the election petition circulator’s verifications, asserting that she had circulated each petition and that “each signer personally signed this petition in [her] presence.”  The statements were untrue, as Petitioner well knew.  She did not circulate the petitions, and none of the voters signed in her presence.  In fact, she was not even in the United States at the time the petitions were circulated and signed.  She nevertheless filed them with the Secretary of State, falsely claiming that she had personally circulated them and witnessed the signatures.  CMS Ex. 3 at 1, 8.  

The conviction.  On May 27, 2015, a jury convicted Petitioner on six felony counts of offering false or forged instruments for filing, in violation of SDCL [South Dakota Codified Laws] 22-11-28.1, and six felony counts of perjury, in violation of SDCL 22-29-1, 22-29-8, and 22-29-10.  CMS Ex. 2 at 1.  The Court accepted the verdict and entered judgment against her on all twelve counts.  CMS Ex. 2 at 2.  The Court sentenced Petitioner to two years in the state penitentiary, which it suspended on four conditions:  1) that she be on probation for three years; 2) that she pay court costs of $104 on each count; 3) that she pay prosecution costs of $10,697.10; and 4) that she complete 500 hours of community service.  CMS Ex. 2 at 2-3. 

Petitioner appealed the convictions. 

In a decision dated July 19, 2017, the Supreme Court of South Dakota vacated Petitioner’s perjury convictions, finding that the statute under which she was convicted is limited to oaths taken before a “competent tribunal, officer, or person” in a “state or federal proceeding or action in which such an oath may by law be administered.”  The Court ruled that signing a nominating petition under a written oath before submitting it to a state authority is not “a statement made in a proceeding or action.”  CMS Ex. 3 at 3, 4, 8.  The Court affirmed Petitioner’s convictions for filing false or forged instruments, noting that the petitions were false because they contained a circulator’s verification that was signed by someone other than the circulator, and the evidence at trial was sufficient to sustain Petitioner’s convictions.  CMS Ex. 3 at 8.  The Supreme Court remanded the case to the Circuit Court for resentencing.

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In an order dated October 31, 2017 (which is not in the record), the Circuit Court suspended its sentence on the remaining felony charges, finding that Petitioner had successfully completed and been discharged from probation.  Under state law, the court’s action vacated its prior adjudication of guilt.  P. Attachment 1 at 6; P. Attachment 2 at 4; Request for Hearing at 2.⁵ 

State Licensing.  In the meantime, on September 10, 2015, the State Board of Medical and Osteopathic Examiners revoked Petitioner’s medical license.  CMS Ex. 5.  The State Medical Board cited her 12 felony convictions, which it characterized as “crimes of moral turpitude,” explaining that “everything done contrary to justice, honesty, modesty, or good morals is done with turpitude.”  CMS Ex. 5 at 3.  The State Medical Board also cited Petitioner’s previous conduct:  problems with her Medicaid billing and a payment dispute with an employee, concluding that “it becomes difficult to view these felony convictions as isolated.”  CMS Ex. 5 at 4; see CMS Ex. 5 at 1 (adopting the Hearing Examiner’s Findings of Fact and Conclusions of Law). 

Petitioner appealed.  In a decision dated April 10, 2018, a South Dakota Circuit Court remanded the matter to the State Medical Board “for a formal administrative determination as to what effect, if any, [Petitioner’s] ultimate dismissal of six counts of perjury and suspended imposition of sentence on the six counts of filing false or forged instruments will have on the Board’s decision to revoke [her] license.”  P. Attachment 2 at 19.  The Court commented that, because Petitioner’s felony convictions were vacated, “in the eyes of the law, she must be treated as if the offenses had never occurred.  This does not mean, however, that the underlying conduct itself cannot be considered conduct worthy of sanction in a licensing proceeding.”  Id. 

On remand, the State Medical Board reversed itself.  It noted that “under the eyes of the law,” Petitioner has not been convicted of a felony, and, because, under state law, she was no longer a convicted felon, she is not subject to license revocation.  P. Attachment 1 at 6, 9, 10. 

Although the State Medical Board ultimately did not revoke Petitioner’s medical license, it criticized her for evidencing “poor judgment” and for not accepting responsibility for her role in submitting the falsified nominating petitions.  P. Attachment 1 at 6, 9.  The State Medical Board also reported that Petitioner was no stranger to its disciplinary

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procedures.  “Several complaints” had been lodged against her and she had “previously been on probation for actions related to her practice of medicine.”  P. Attachment 1 at 3.⁶

Petitioner complains that the Medicare hearing officer considered her license revocation when she affirmed the contractor’s determination to place her on the Preclusion List for ten years.  P. Br. at 11-13.  Of course, the Medicare hearing officer was not aware that the State Medical Board had reversed itself because Petitioner did not submit its revised decision until this level of review.  See CMS Ex. 1 at 1-2.  And the State Medical Board hardly exonerated Petitioner; its revised decision criticized Petitioner’s conduct in submitting the false statements to state authorities, and it cited her past adverse experiences with the State Medical Board.  In any event, the license revocation was peripheral to the hearing officer’s determination.  As discussed below, CMS was authorized to place Petitioner on the Preclusion List based solely on her felonious conduct. 

CMS’s authority.  So long as CMS establishes a basis for placing Petitioner on the preclusion list, I must uphold its doing so.  Wendell Foo, M.D., DAB No 2904 at 25 (2018); Wassim Younes, M.D., DAB No. 2861 at 8 (2018) (citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016)). 

Here, in placing Petitioner on the Preclusion List, CMS acted within its authority.  CMS may rightfully consider that Petitioner’s crimes were serious and that she obstructed the administration of government.  CMS Ex. 1 at 3.  She made untrue statements to a government entity, and her willingness to do so calls into question her trustworthiness, integrity, and judgment.  I agree with the Medicare hearing officer: 

CMS relies on the honesty of our Medicare partners in providing medical care to beneficiaries and submitting accurate claims for billing.  Dr. Bosworth’s actions raise serious concerns regarding her ability and willingness to be reliable, truthful, and honest in her dealings with government entities, such as CMS. 

CMS Ex. 1 at 4. 

CMS justifiably finds detrimental to the Medicare program a wide variety of felonies involving lying or other fraudulent conduct, including those that do not involve crimes related to the practice of medicine or medical insurance programs.  See, e.g., Eva Orticio

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Villamor-Goubeaux, DAB No. 2997 (2020) (interference with child custody); Lilia Gorovits, M.D., P.C., DAB No. 2985 (2020) (obstructing criminal investigations); Pa. Physicians, P.C., DAB No. 2980 (2019) (personal income tax fraud); Michael Scott Edwards, OD, DAB No. 2975 (2019) (obstructing public justice by failing to disclose how he distributed campaign contributions).  

CMS thus had a valid basis for finding Petitioner’s crimes detrimental to the Medicare program, and I am not authorized to overturn a valid agency action. 

Petitioner’s argument:  no felony conviction.  Petitioner argues that CMS has no authority to place her on the Preclusion List because, by the time CMS added her name, she had no felony convictions.  P. Br. at 7.  In Petitioner’s view, because the state court reversed and vacated the convictions, they do not exist.  Id at 8.

In fact, under federal law, notwithstanding the state court’s actions, Petitioner was convicted of six felonies.  Section 424.535(a)(3) adopts the definition of “convicted” found at 42 C.F.R. § 1001.2.  That section and the statute itself provide that a person is “convicted” when:  1) “a judgment of conviction has been entered” regardless of whether that judgment has been (or could be) expunged; 2) there has been a finding of guilt; 3) a plea of guilty or nolo contendere has been accepted by the court; or 4) the individual has entered into participation in a first offender, deferred adjudication, or other arrangement or program where the judgment of conviction has been withheld.  Act § 1128(i); 42 C.F.R. § 1001.2(a).  Thus, even though her conviction was vacated – after she satisfied the terms of her sentence – Petitioner was still convicted within the meaning of the federal statute and regulations. 

By a long line of cases, the Departmental Appeals Board has confirmed that, under federal law, a “conviction” includes diverted, deferred, and expunged convictions, regardless of whether state law treats such actions as convictions.  Federal law, not state law, controls what constitutes a “conviction” for the purpose of federal laws designed to protect the Medicare program and its beneficiaries.  Sunsites Pearce Fire District, DAB No. 2926 (2019); Stephen White, M.D., DAB No. 2912 (2018); Dennis McGinty, PT, DAB No. 2838 (2017); Kimberly Shipper, P.A., DAB No. 2804 (2017); Lorrie Laurel, PT, DAB No. 2524 (2013); Henry L. Gupton, DAB No. 2058 at 8 (2007), aff’d sub nom. Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).  For sound reasons, Congress deliberately defined “conviction” broadly to assure that exclusions would not hinge on state criminal justice policies.  Funmilola Mary Taiwo, DAB No. 2995 at 6 (2020); Gupton, DAB No. 2058 at 7-8. 

The rationale for the different meanings of “conviction” for state criminal law versus federal exclusion law purposes follows from the distinct goals involved.  The goals of criminal law generally involve punishment and rehabilitation

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of the offender, possibly deterrence of future misconduct by the same or other persons, and various public policy goals.  [footnote omitted].  Exclusions imposed by the [Inspector General], by contrast, are civil sanctions, designed to protect the beneficiaries of health care programs and the federal fisc, and are thus remedial in nature rather than primarily punitive or deterrent . . . . In the effort to protect both beneficiaries and funds, Congress could logically conclude that it was better to exclude providers whose involvement in the criminal system raised serious concerns about their integrity and trustworthiness, even if they were not subjected to criminal sanctions for reasons of state policy.  

Gupton at 7-8. 

2. I have no authority to review the length of time Petitioner remains on the Preclusion List; however, because the list did not exist at the time of her conviction, the effective date for adding her to the list is January 1, 2019, when the list was created. 

As noted above, by regulation an individual included on the Preclusion List remains on that list for ten years from the date of her conviction, unless CMS determines that a shorter length of time is warranted.  42 C.F.R. §§ 422.222(a)(5)(iii); 423.120(c)(6)(vii)(C). 

Here, CMS placed Petitioner on the Preclusion List for the standard ten years.  Petitioner complains that this length of time is not justified.  I have no authority to review that determination, however.  My authority is limited to review of initial determinations, which are listed in 42 C.F.R. § 498.3(b).  Among those reviewable determinations are whether “[a]n individual or entity is to be included on the Preclusion List as defined in [section] 422.2 or [section] 423.100.”  42 C.F.R. § 498.3(b)(20).  The regulations confer no such right to appeal CMS’s determination concerning the length of time the individual or entity remains on the preclusion list.  For the same reasons that administrative law judges may not review CMS’s determination as to the length of a reenrollment bar, I may not review its determination as to how long an individual or entity remains on the Preclusion List.  See Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord, William Garner, M.D., DAB No. 3026 at 16 (2020), Lilia Gorovits, DAB No. 2985 at 15-16. 

Although for individuals under a reenrollment bar, the effective date for placing an individual or entity on the Preclusion List is the date the Medicare hearing officer denies her reconsideration request (42 C.F.R. §§ 422.222(a)(3)(i)(B), 423.120(c)(6)(v)(C)(1)(ii))), an individual placed on the preclusion list because of a

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felony conviction, regardless of whether she is enrolled in Medicare, will remain on the list for ten years, beginning on the date of the felony conviction, in this case, May 27, 2015.  However, inasmuch as the list did not exist until January 1, 2019, the effective date can be no earlier than that date. 

Conclusion

CMS is authorized to include Petitioner Bosworth on the preclusion list, effective January 1, 2019, because, within the preceding ten years, she was convicted of a felony offense that CMS reasonably determined is detrimental to the best interests of the Medicare program.

I have no authority to review CMS’s determination that Petitioner will remain on the Preclusion List for ten years.

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Endnotes

¹ In fact, Petitioner’s request was not untimely.  The request for reconsideration must be filed within 60 days from receipt of the notice.  Although the regulation presumes that the date of receipt is five days after the date on the notice, that is only a presumption and does not apply where (as here) Petitioner shows that she received the notice at a later date.  42 C.F.R. § 498.22(b)(3).

² Apparently, Petitioner learned that she had been place on the preclusion list two months before she received the notice letters.  During that interval, she corresponded with CMS.  P. Br. in Opposition at 4.

³ My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

⁴ Apparently, CMS considered requiring Medicare enrollment for all providers and suppliers of Medicare Advantage services and prescribers of Part D drugs but, ultimately, opted for a Preclusion List instead.  CMS concluded that the burden of requiring Medicare enrollment for hundreds of thousands of additional providers, suppliers, and prescribers would be too great and would threaten beneficiary access to prescriptions and services.  See 82 Fed. Reg. at 56,336, 56,448 (Nov. 28, 2017); 83 Fed. Reg. 16,440, 16,646 (Apr. 16, 2018).

⁵ October 31 may not be the correct date.  The Circuit Court reviewing Petitioner’s license revocation indicated that the sentencing court issued its revised sentence on October 23, 2017.  P. Attachment 2 at 4.  But, according to the subsequent decision of the State Board of Medical and Osteopathic Examiners, the order was issued on October 27, 2017.  P. Attachment 1 at 6.

⁶ The State Medical Board previously reprimanded Petitioner for a matter involving her employment of an unlicensed physician assistant (although the record includes no details).  P. Attachment 2 at 2.  She was also subject to a Medicaid investigation.  Without admitting guilt, she agreed to pay the State of South Dakota $14,790.32 to settle its civil action against her.  CMS Ex. 6.