Ronald Yunis, MD, CR6307 (2023)

DECISION

The Medicare enrollment and billing privileges of Petitioner, Ronald Yunis, MD, are revoked pursuant to 42 C.F.R. § 424.535(a)(3) and (9).¹  The effective date of revocation is October 6, 2021.  Petitioner is barred from reenrollment in Medicare through October 6, 2031.  Petitioner’s name will appear on the Centers for Medicare & Medicaid Services (CMS) preclusion list effective March 23, 2022 through October 6, 2031.

I. Background and Procedural History

On November 19, 2021, Noridian Healthcare Solutions, a Medicare Administrative Contractor (MAC), notified Petitioner that his Medicare enrollment and billing privileges were revoked effective October 6, 2021, pursuant to 42 C.F.R. § 424.535(a)(3) and (9).  The MAC also notified Petitioner that he²  was subject to a reenrollment bar from December 19, 2021 (30 days from the notice of revocation) through October 6, 2031,

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pursuant to 42 C.F.R. § 424.535(c).  The MAC also advised Petitioner that his name would be placed on the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Exhibit (Ex.) 1 at 14‑16.

On January 18, 2022, Petitioner requested reconsideration of the initial determination to revoke his Medicare enrollment and billing privileges.  CMS Ex. 1 at 11‑13.  On March 23, 2022, a CMS hearing officer issued a reconsidered determination upholding revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) and (9), inclusion on CMS’s preclusion list effective the date of the reconsidered determination through October 6, 2031, and establishment of a reenrollment bar through October 6, 2031.  CMS Ex. 1 at 1‑10.

On May 23, 2022, Petitioner requested a hearing (RFH) before an administrative law judge (ALJ).  On May 24, 2022, the case was assigned to me for hearing and decision, and an Acknowledgment Letter and my Standing Order (Standing Order) were issued at my direction.

On June 22, 2022, CMS filed a combined prehearing brief and motion for summary judgment (CMS Br.) with CMS Exs. 1 and 2.  On July 25, 2022, Petitioner filed a combined prehearing brief and opposition to CMS’s motion for summary judgment (P. Br.) and Petitioner’s exhibit (P. Ex.) 1.  On August 8, 2022, CMS filed a notice that it waived filing a reply brief.

Neither party has objected to my consideration of the proposed exhibits.  Therefore, CMS Exs. 1 and 2 and P. Ex. 1 are admitted as evidence.  P. Ex. 1 is Petitioner’s affidavit which is properly executed and accepted as Petitioner’s testimony as requested by Petitioner.  P. Br. at 2.

II. Discussion

A.  Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.³  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)). 

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The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations. Act § 1866(h) and (j) (42 U.S.C. § 1395cc(h) and (j)).  Pursuant to 42 C.F.R. § 424.505, a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or its MAC may revoke an enrolled supplier’s Medicare enrollment and billing privileges and supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535.  The effective date of the revocation is controlled by 42 C.F.R. § 424.535(g).  After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is generally barred from reenrolling in the Medicare program for a period of one to ten years.  42 C.F.R. § 424.535(c)(1).

Effective June 15, 2018, CMS was required to establish a preclusion list as defined by 42 C.F.R. §§ 422.2 and 423.100.  There is only one preclusion list.  83 Fed. Reg. 16,440, 16,641-67 (Apr. 16, 2018).

CMS adds to the preclusion list individuals and entities as provided by the definition of the preclusion list:

Preclusion list means a CMS compiled list of individuals and entities that—

(1) Meet all of the following requirements:

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in § 424.535(a)(3) of this chapter.

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(ii) The individual or entity is currently under a reenrollment bar under § 424.535(c).

(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph (1)(iii), CMS considers the following factors:

(A) The seriousness of the conduct underlying the individual's or entity's revocation.

(B) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program.

(C) Any other evidence that CMS deems relevant to its determination; or

(2) Meet both of the following requirements:

(i) The individual or entity has engaged in behavior, other than that described in § 424.535(a)(3) of this chapter, for which CMS could have revoked the individual or entity to the extent applicable had they been enrolled in Medicare.

(ii) CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph (2)(ii), CMS considers the following factors:

(A) The seriousness of the conduct involved.

(B) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program; and

(C) Any other evidence that CMS deems relevant to its determination; or

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(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 seriousness of the offense.

(ii) When the offense occurred; and

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

42 C.F.R. § 422.2 (emphasis added).  This definition of the preclusion list is from the regulations applicable to the Medicare Part C (Medicare Advantage) program.  A similar definition applicable to the Medicare Part D program is found in 42 C.F.R. § 423.100.

No payment under Medicare Parts C and D may be made to anyone on the preclusion list.  42 C.F.R. §§ 422.222-.224, 422.504(h)(2)(i)(2)(v), 423.120(c)(6).  CMS must notify a supplier in writing that the supplier is being added to the preclusion list, include the basis for the action, and inform the supplier of the right to ALJ review and appeal pursuant to 42 C.F.R. pt. 498.  42 C.F.R. §§ 422.222(a)(2), 423.120(c)(6)(v).

An individual or entity is placed on the preclusion list no sooner than 60 days from the date of the notice of the initial determination to place the individual’s or entity’s name on the preclusion list or when a reconsidered determination is issued.  42 C.F.R. §§ 422.222(a)(3)(i), 423.120(c)(6)(v)(C).  Generally, an individual or entity placed on the preclusion list due to a felony conviction remains on the preclusion list until the date 10 years from the date of the felony conviction.  42 C.F.R. §§ 422.222(a)(5)(iii) and 423.120(c)(6)(vii)(C) as amended effective January 1, 2020, 84 Fed. Reg. 15,680, 15,832, 15,840-41 (Apr. 16, 2019).  However, CMS has discretion to determine that a shorter period on the preclusion list is warranted based on consideration of the severity of the offense, when the offense occurred, and any other information CMS deems relevant.  42 C.F.R. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).  CMS also has discretion to not place the name of an individual or entity on the preclusion list or remove the name from the preclusion list if CMS determines exceptional circumstances exist related to Medicare beneficiary access to items, services, or drugs considering the degree to which access is impaired and other evidence CMS determines is relevant.  42 C.F.R. §§ 422.222(a)(6), 423.102(c)(6)(vi).
  A supplier whose enrollment and billing privileges have been revoked may request reconsideration and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. §§ 424.545(a), 498.22(a).  A supplier who has been added to the preclusion list may request

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reconsideration and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. §§ 422.222(a)(2), 423.120(c)(6)(v)(A), 498.5(n)(1)(i).  A supplier submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a).  CMS or its contractor must give notice of its reconsidered determination to the supplier, giving the reasons for its determination, and if the determination is adverse, specifying the conditions or requirements the supplier failed to meet, and advising the supplier of the right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the supplier, the supplier has the right to request a hearing by an ALJ and further review by the Departmental Appeals Board (the Board).  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), (20), 498.5.  A hearing on the record, also known as an oral hearing, is required under the Act unless waived.  Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  The supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c).  Preclusion list review is strictly limited to whether there is a basis for adding the individual or entity to the preclusion list.  83 Fed. Reg. 16,642-43; 42 C.F.R. §§ 498.3(b)(20) (CMS determination to place on preclusion list is reviewable); 498.5(n) (right to review of determination to add to preclusion list).

B.  Issues

The issues in this case are:

Whether there is a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges; and

Whether there is a basis for adding Petitioner’s name to the CMS preclusion list.

C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the undisputed findings of fact and analysis.

1. Petitioner has waived an oral hearing and a decision may be made on the parties’ documentary evidence and briefs.

CMS filed a motion for summary judgment.  However, Petitioner advised me in his brief that he waived an oral hearing if his affidavit (P. Ex. 1) is accepted as evidence.  P. Br. at 2.  The affidavit (P. Ex. 1) is admitted as evidence and treated as Petitioner’s testimony.

A supplier whose enrollment has been revoked or who has been placed on the preclusion list has a right to a hearing and judicial review pursuant to section 1866(h)(1) and (j) of

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the Act and 42 C.F.R. §§ 498.3(b)(17), (20); 498.5.  A hearing on the record, also known as an oral hearing, is required under the Act.  Act §§ 205(b), 1866(h)(1) and (j)(8); Crestview, 373 F.3d at 748-51.  However, a party may waive appearance at an oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.

I conclude that there has been a valid and informed waiver of the right to an oral hearing.  CMS’s motion for summary judgment is moot.  This case can be decided on the parties’ documentary evidence and briefs because Petitioner has waived an oral hearing to present testimony.

2. Petitioner was convicted on October 6, 2021, of the felony offense of disorderly conduct in the Superior Court of Arizona.
3. The Secretary has determined and provided by regulation that felony crimes against persons, such as murder, rape, assault, and similar crimes, are detrimental to the Medicare program and its beneficiaries.  42 C.F.R. § 424.535(a)(3)(ii)(A).
4. Petitioner’s conviction of disorderly conduct is a felony crime that CMS also determined, based on a case-specific analysis, is detrimental to the best interests of the Medicare program and its beneficiaries.
5. Petitioner’s conviction occurred within the ten years preceding the initial determination to revoke Petitioner’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(3)(i).
6. There is a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3).
7. Petitioner did not report his conviction, which was an adverse legal action, within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii).
8. There is a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).
9. There is a basis for adding Petitioner’s name to the CMS preclusion list from March 23, 2022, the date of the reconsidered determination, through October 6, 2031, the end of the 10-year period following the date of Petitioner’s conviction on October 6, 2021.

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a.  Facts

Petitioner is an obstetrician/gynecologist licensed by the State of Arizona.  He has been enrolled in Medicare since at least January 2012.  CMS Ex. 2 at 1‑2.

On June 11, 2020, the grand jury of Maricopa County, Arizona charged Petitioner with one count of disorderly conduct, a class 6 dangerous felony citing Ariz. Rev. Stat. §§ 13‑2904, 13-701, 13-702, and 13-801.⁴  The charge alleged that on about October 10, 2019, Petitioner intentionally or knowingly disturbed the peace or quiet of a neighborhood, family, or person by recklessly handling, displaying, or discharging a handgun.  The charge further alleged that the offense was a dangerous felony because a handgun is a deadly weapon.  CMS Ex. 1 at 26-27.

On July 7, 2021, Petitioner signed a plea agreement in which he agreed to plead guilty to an amended count 1 of disorderly conduct, a class 6 felony under Arizona law, that was committed on October 10, 2019.  The amended charge provided that the offense was non-dangerous and non-repetitive.  CMS Ex. 1 at 28, 32.

Petitioner provides in his affidavit details of the events on October 10, 2019, that led to the charge of which he was convicted.  On October 10, 2019, Petitioner was confronted by protestors as he was leaving the clinic where he worked.  Petitioner testified that as he was attempting to leave the clinic parking lot, protestors prevented him for leaving in his car though the main exit.  When he attempted to use a secondary exit, protestors rushed at his car in an aggressive fashion.  P. Ex. 1 ¶ 7.  Petitioner had a properly permitted handgun that he had been trained to use.  P. Ex. 1 ¶ 9.  Petitioner testified that one protestor who rushed at his car wore a “chest rig” that “looked like a bomb vest and [the rushing protester] held a black object in his outstretched hand.” P. Ex. 1 ¶ 10.  Petitioner testified he was certain the rushing protester was armed and out of concern for his safety he drew his firearm with the intent to defend himself from the perceived threat.  He testified that he did not lower his car window but admitted he “trained his weapon” on the protestor.  P. Ex. 1 ¶¶ 10-11.  Petitioner testified that he did not intend to threaten anyone (P. Ex. 1 ¶ 11) which I find not credible as there would be no other purpose for displaying a weapon, except to possibly fire the weapon if threating by brandishing alone was insufficient to stop the threat.  He testified that he did not lower his car window but testified that he “trained his weapon” on the protestor.  P. Ex. 1 ¶ 12.  Petitioner testified that the protestors hesitated, and Petitioner then left the clinic in his car.  P. Ex. 1 ¶ 13.  Petitioner testified he pleaded guilty to disorderly conduct with a handgun even though he knew he acted in self-defense, to avoid the cost of defending himself in court.  P. Ex. 1 ¶ 14.  Except for the assertion he did not intend to threaten anyone by displaying his

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weapon, Petitioner’s testimony is credible.  Petitioner states he knew conviction of a felony would jeopardize his medical license and ability to participate in government health care programs, but his criminal attorney assured him that conviction pursuant to the plea agreement would not be considered a felony because it was an undesignated offense and would not be reported to any regulatory body.⁵  P. Ex. 1 ¶ 15.

On October 6, 2021, a judge of the Superior Court of Arizona, Maricopa County (state court) entered a judgment finding Petitioner guilty of the class six undesignated felony offense of disorderly conduct citing Ariz. Rev. Stat. § 13-2904A6.  CMS Ex. 1 at 33-35.  Ariz. Rev. Stat. § 13-2904A provides in relevant part:

1. A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person:

* * * *

6. Recklessly handles, displays or discharges a deadly weapon or dangerous instrument

Ariz. Rev. Stat. § 13-2904(B) provides that disorderly conduct under Ariz. Rev. Stat. § 13-2904A6 is a class 6 felony.

Ariz. Rev. Stat. § 13-604 provides in relevant part:

1. Notwithstanding any other provision of this title, if a person is convicted of any class 6 felony not involving a dangerous offense and if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is terminated.  The offense shall be treated as a felony for all

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purposes until such time as the court may actually enter an order designating the offense a misdemeanor.  This subsection does not apply to any person who stands convicted of a class 6 felony and who has previously been convicted of two or more felonies. 

2. If a crime or public offense is punishable in the discretion of the court by a sentence as a class 6 felony or a class 1 misdemeanor, the offense shall be deemed a misdemeanor if the prosecuting attorney files any of the following:
   1. An information in superior court designating the offense as a misdemeanor.
   2. A complaint in justice court or municipal court designating the offense as a misdemeanor within the jurisdiction of the respective court.
   3. A complaint, with the consent of the defendant, before or during the preliminary hearing amending the complaint to charge a misdemeanor.

Ariz. Rev. Stat. § 13-604 (Jan. 1, 2009)⁶  (emphasis added).

The state court’s judgment states Petitioner was convicted of a class 6 undesignated felony and did not characterize the offense as a misdemeanor.  CMS Ex. 1 at 33-34.  Therefore, the state court deferred designation as a felony or misdemeanor pending Petitioner’s completion of probation as permitted by Ariz. Rev. Stat. § 13-604.  There is no evidence that the prosecutor took any of the actions specified by Ariz. Rev. Stat 13-604B.  Therefore, pursuant to Ariz. Rev. Stat. § 13-604A, Petitioner was convicted of a felony for all purposes until such time as the state court designates the offense a misdemeanor.

The state court suspended imposition or execution of sentence and placed Petitioner on probation for two years beginning October 6, 2021.  CMS Ex. 1 at 34.

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On November 19, 2021, the MAC notified Petitioner that his Medicare enrollment and billing privileges were revoked effective October 6, 2021 (the date of his conviction), pursuant to 42 C.F.R. § 424.535(a)(3) and (9).  The notice advised that the revocation was based on Petitioner’s October 6, 2021 felony conviction for disorderly conduct.  CMS Ex. 1 at 14.  The MAC imposed a reenrollment bar effective 30 days after the notice of revocation through October 6, 2031 (the end of the 10-year period that began the date of Petitioner’s conviction), pursuant to 42 C.F.R. § 424.535(c).  Petitioner was also informed that his name would be added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2 and 422.222.  CMS Ex. 1 at 14‑16.

Petitioner timely requested reconsideration.  On March 23, 2022, a CMS hearing officer issued a reconsidered determination upholding the MAC’s initial determination to revoke Petitioner’s Medicare enrollment and billing privileges and to place his name on the CMS preclusion list.  The hearing officer concluded that Petitioner was convicted of a felony.  CMS Ex. 1 at 2-3.  With respect to revocation based on 42 C.F.R. § 424.535(a)(3), the hearing officer concluded that Petitioner’s felony offense was per se detrimental to the Medicare program because it was committed in the presence of others making it a crime against a person as described in 42 C.F.R. § 424.535(a)(3)(ii)(A), an offense that is considered by CMS to be per se detrimental to the best interests of the Medicare program and its beneficiaries.  The hearing officer also made an individualized determination based on the facts and circumstances of the conduct for which Petitioner was convicted.  The hearing officer concluded that Petitioner’s felony disorderly conduct offense is detrimental to the best interests of the Medicare program and its beneficiaries.

The hearing officer stated:

[Petitioner] admits that he brandished his handgun inside of his vehicle because he felt threatened by protestors outside of an abortion clinic . . . . CMS finds [Petitioner’s] behavior to be extremely concerning.  His actions indicate a reckless disregard for the safety of those around him and calls into question his ability to exercise good judgment.  His offense raises concerns that Medicare beneficiaries may be at risk if he is allowed to remain in the Medicare program.  CMS relies on Medicare suppliers to hold the well-being of others in the highest regard.  In addition, payment under the Medicare program is made in a manner that relies upon the trustworthiness and best judgment of our Medicare partners.

CMS Ex. 1 at 4.

Regarding revocation under 42 C.F.R. § 424.535(a)(9), the hearing officer determined that Petitioner’s conviction was an adverse legal action that was required to be reported to

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CMS within 30 days under 42 CFR § 424.516(d)(1)(ii).  CMS Ex. 1 at 4-5.  Failure to report adverse action as required by 42 C.F.R. § 424.516(d) is a basis for revocation of enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9).  There is no dispute that Petitioner failed to report his October 6, 2021 conviction by the state court to the MAC.  P. Br. at 9; CMS Ex. 1 at 12-13.

The CMS hearing officer also upheld listing Petitioner’s name on the CMS preclusion list beginning on the date of the reconsidered determination and continuing until October 6, 2031, the end of the 10-year period following Petitioner’s felony conviction on October 6, 2021.  CMS Ex. 1 at 6.  The hearing officer found that Petitioner’s offense of disorderly conduct with a weapon occurred within the previous 10 years and is detrimental to the best interests of the Medicare program and could have resulted in bodily injury or death.  CMS Ex. 1 at 6.  The hearing officer further explained that:

[Petitioner’s] conduct negatively affects the integrity of the Medicare program.  [Petitioner’s] actions reflect poorly on the medical profession as a whole and jeopardizes public confidence in Medicare providers and suppliers.  CMS is committed to maintaining quality service to beneficiaries enrolled in the Medicare program, including the quality of care provided by its partners.  Public confidence is vital to the success of the Medicare program, and allowing [Petitioner] to continue to participate as a Medicare supplier jeopardizes the program’s integrity. 

CMS Ex. 1 at 6.  Regarding failure to report the adverse state court judgment the hearing officer found

CMS finds that [Petitioner’s] failure to report his felony conviction in a timely manner, or at all, as required under § 424.516(d) to be very serious. . . . CMS relies on updated information included in supplier disclosures to screen them for continued enrollment in the Medicare program.  [Petitioner’s] failure to timely report his felony conviction represents a significant negative effect on the integrity of the Medicare program.  CMS has long held that the “submission of false information or the withholding of information relevant to the provider’s or supplier’s enrollment eligibility represents a significant program integrity risk.”

* * * *

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[Petitioner] has demonstrated, by way of the conduct which led to his felony conviction and his failure to report the felony conviction to CMS, that he cannot be relied upon to follow Medicare program rules or provide accurate information to CMS as required.  Payment under the Medicare program is made for claims submitted in a timely manner that relies on the trustworthiness and best judgment of our Medicare partners.  CMS relies on its partners to provide complete and accurate data to help confirm that the provider or supplier still meets all Medicare requirements and that Medicare payments are made correctly.  Inaccurate or withheld information puts the Medicare Trust Funds at risk.

CMS Ex. 1 at 7.

b.  Analysis

(i.)  There is a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3).

Congress granted the Secretary authority to revoke the enrollment of a provider or supplier convicted under federal or state law of a felony offense that the Secretary determines is detrimental to the program or its beneficiaries.  Act § 1866(b)(2)(D).  The Secretary delegated to CMS the authority to revoke a supplier’s billing privileges if CMS determines that the supplier was, “within the preceding 10 years, convicted (as that term is defined in 42 C.F.R. § 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.” 42 C.F.R. § 424.535(a)(3).  Therefore, the elements necessary for revocation pursuant to 42 C.F.R. § 424.535(a)(3) are:  (1) Petitioner was convicted within the meaning of 42 C.F.R. § 1001.2, of a state felony offense; (2) Petitioner’s conviction occurred within the 10 years preceding the revocation action; and (3) CMS has determined that a Petitioner’s felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  42 C.F.R. § 424.535(a)(3); see Fady Fayad, M.D., DAB No. 2266 at 7 (2009) (describes elements under prior revision of the regulation), aff’d, Fady Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011).

(a.)  Petitioner was convicted.

The first question of law is whether, on the facts of this case, Petitioner was convicted within the meaning of 42 C.F.R. § 1001.2.

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The evidence shows that on October 6, 2021, the state court entered judgment finding Petitioner guilty pursuant to his plea of one count of disorderly conduct with a weapon, a class 6 undesignated felony.  CMS Ex. 1 at 33.  The evidence shows that the revocation by the MAC on November 19, 2021 (CMS Ex. 1 at 14) occurred within 10 years of the date of Petitioner’s conviction. 

For revocation under 42 C.F.R. § 424.535(a)(3), the term conviction is defined in 42 C.F.R. § 1001.2.  One is convicted when a judgment of conviction has been entered against the individual by a federal, state, or local court, even though a post-trial motion or appeal may still be pending, or the judgment of conviction or other record has been expunged or removed.  One is also convicted when a guilty plea or no contest plea is accepted and/or the individual is found guilty of an offense by a court.  The state court clearly accepted Petitioner’s guilty plea and found Petitioner guilty.  CMS Ex. 1 at 33. 

I conclude Petitioner was convicted within the meaning of 42 C.F.R. § 1001.2 for purposes of revocation pursuant to 42 C.F.R. § 424.535(a)(3). 

I also conclude that Petitioner was convicted during the 10 years preceding the revocation of Petitioner’s Medicare enrollment and billing privileges.

(b.)  Petitioner was convicted of a felony.

The second question of law is whether, on the facts of this case, Petitioner was convicted of a felony by the state court.⁷  The facts and applicable Arizona statutes⁸  establish that Petitioner was convicted of a felony.

The judgment of the state court shows that Petitioner was convicted of disorderly conduct with a weapon a class 6 felony under the Arizona criminal code.  CMS Ex. 1 at 33.  The judgment of the state court reflects and is consistent with Petitioner’s plea agreement, which shows that Petitioner pleaded guilty to disorderly conduct, a class 6 undesignated felony.  CMS Ex. 1 at 28.

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Disorderly conduct that involves a deadly weapon or dangerous instrument in violation of Ariz. Rev. Stat. 13-2904A6 is a class 6 felony.  Ariz. Rev. Stat. 13-2904B.  However, under Arizona law, a state court has discretion upon entering a judgment of conviction of a non-dangerous class 6 felony, to either enter a judgment of conviction for a misdemeanor or to declare the offense undesignated until the convicted individual completes probation.  Ariz. Rev. Stat. 13-604.  Pursuant to Ariz. Rev. Stat. 13-604A, when the trial court declares a class 6 felony undesignated, the conviction is treated as a felony for all purposes until a judgment is entered by the court designating the offense a misdemeanor. 

On October 6, 2021, Petitioner was convicted by the state court pursuant to his guilty plea of the class 6 felony of disorderly conduct with a weapon.  The state court declared the offense undesignated, which meant that after Petitioner completed probation the state court could declare Petitioner’s offense a misdemeanor.  However, Ariz. Rev. Stat. 13‑604A specifically provides that a conviction of a class 6 felony, even when declared to be undesignated by the state court, will be treated as a felony for all purposes until judgment is issued designating the offense a misdemeanor.  I conclude that Petitioner was convicted of a felony for purposes of revocation of enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3).

(c.)  Petitioner’s offense and conviction are detrimental.

The third question of law is whether, on the facts of this case, the felony offense of which Petitioner was convicted was detrimental to the best interests of the program and its beneficiaries within the meaning of 42 C.F.R. § 424.535(a)(3)(ii).

CMS is authorized to revoke the Medicare enrollment and billing privileges of an individual and entity who, within the preceding 10 years, was convicted of a felony criminal offense if “CMS determines [the offense] is detrimental to the best interests of the Medicare program and its beneficiaries.” 42 C.F.R. § 424.535(a)(3)(i).  The Secretary has specified types of crimes that are presumptively or per se detrimental to the best interests of the program and its beneficiaries in 42 C.F.R. § 424.535(a)(3)(ii).  The listing of presumptively detrimental felonies in 42 C.F.R. § 424.535(a)(3)(ii) is not exhaustive but specifically permits revocation for detrimental felonies like the crimes listed.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 10 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).  CMS’s authority to revoke under 42 C.F.R. § 424.535(a)(3)(i) is not, however, limited to felony offenses that fall within any of the four categories.  The Board has consistently determined that CMS may decide “on a case-by-case, adjudicative basis whether a felony, even one that does not fall within” one of the categories of offenses listed in 42 C.F.R. § 424.535(a)(3)(ii), is detrimental to the interests of Medicare and its beneficiaries.  Eva Orticio-Villamore-Goubeaux, DAB No. 2997 at 8 (2020).  The Board has said that if an adjudicator determines that an offense is

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one that falls within one of the per se detrimental categories under 42 C.F.R. § 424.535(a)(3)(ii), there is no need to address a case-specific determination that an offense is detrimental.  Goubeaux at 9.

The Board has been clear that ALJ and Board review of the revocation determination of CMS or the MAC is limited to determining whether CMS had a legal basis for revocation, i.e., whether the elements for revocation established by the regulation are satisfied.  CMS has discretion to determine how to exercise its revocation authority and neither the ALJ nor the Board may substitute their discretion for that of CMS in determining that revocation is appropriate under all the circumstances.  Goubeaux at 13. 

Based on the Board’s decisions, if an offense falls within one of the per se categories of offenses listed in 42 C.F.R. § 424.535(a)(3)(ii), there is no need to do a case-specific determination of the whether the offense is detrimental.  If CMS relies upon a case-specific determination, my scope of review is limited to whether the evidence shows such a determination was made, and not whether in its exercise of discretion CMS considered all possible factors (urged by Petitioner or not), or how CMS weighed the factors.  Even though I may disagree with the case-specific determination of CMS, I am not permitted to substitute my discretion for that of CMS. 

The CMS hearing officer concluded that Petitioner’s offense fell within a category of per se detrimental offenses, but the hearing officer also made the case specific determination.  CMS Ex. 1 at 4. 

Pursuant to 42 C.F.R. § 424.535(a)(3)(ii)(A), the Secretary has provided public notice that felony crimes against persons include assault and similar crimes as per se detrimental.  Petitioner was originally charged by the grand jury with two counts of aggravated assault.  CMS Ex. 1 at 24-25.  Ariz. Rev. Stat. 13-1203 defines an assault as intentionally, knowingly, or recklessly causing physical injury to another; intentionally placing another in reasonable apprehension of imminent physical injury; or knowingly touching another with intent to injure, insult, or provoke another.  Petitioner testified that he drew his handgun in self-defense when a protestor, who Petitioner believed might be armed and who Petitioner perceived as a threat, approached his car.  P. Ex. 1 ¶ 10-11.  Although Petitioner testified that he did not intend to threaten anyone (P. Ex. 1 ¶ 11), I find that assertion not credible.  The reasonable inference based on the preponderance of the evidence is that upon feeling threatened Petitioner drew and displayed his handgun to deter the protestor from approaching more closely by threatening to use the handgun if the protestor did not stop.  I conclude that it is more likely than not Petitioner intended to place the protestor in reasonable apprehension of imminent physical injury, which is assault.  The fact Petitioner pleaded guilty to and was convicted of disorderly conduct does not negate or rebut the fact the preponderance of the evidence shows that his conduct was an assault, even though that might not have been proven beyond reasonable doubt in state criminal proceedings.

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Accordingly, I conclude that the felony offense of disorderly conduct with a weapon of which Petitioner was convicted was at very least like the felony offense of assault and a felony assault is a per se detrimental offense.  The elements necessary for exclusion pursuant to 42 C.F.R. § 424.535(a)(3)(i) are, therefore, satisfied and CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges

The hearing officer also made a case-specific analysis and concluded that Petitioner’s felony offense was detrimental to the interests of Medicare and its beneficiaries.  CMS Ex. 1 at 4.  The hearing officer considered that Petitioner intentionally brandished his handgun because he felt threatened by protestors.  The hearing officer determined that Petitioner’s conduct reflected reckless disregard about the safety of others and raised a question about his ability to exercise good judgment and raised concern that Medicare beneficiaries may be at risk.  The hearing officer stated that CMS relies upon Medicare suppliers to hold the well-being of others in highest regard.  The hearing officer also stated that payment under Medicare is made in reliance upon the trustworthiness and best judgment of Medicare partners.  Whether I agree with the factors considered by the hearing officer and how the factors were weighed is not an issue because I cannot substitute my discretion for that of the hearing officer.

Accordingly, even if one concluded that Petitioner’s offense was not among those considered per se detrimental, the CMS hearing officer performed the case-specific analysis and concluded Petitioner’s felony offense was detrimental to the interests of Medicare and its beneficiaries.  The elements necessary for exclusion pursuant to 42 C.F.R. § 424.535(a)(3)(i) are, therefore, satisfied and CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges.

 

(ii.)  There is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).

CMS needs only one basis for revocation under 42 C.F.R. § 424.535(a).  However, even if one concluded that CMS had no basis for revocation under 42 C.F.R. § 424.535(a)(3), there is a basis for revoking Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9).  I conclude there is a basis for revocation under 42 C.F.R. § 424.535(a)(9) because Petitioner failed to report his state court conviction as an adverse action within 30 days as required by 42 C.F.R. § 424.516(d)(1)(ii).

Petitioner concedes that he did not report his conviction to CMS.  Petitioner states “[w]e don’t dispute that CMS had discretionary authority to revoke [Petitioner’s] Medicare privileges based on his failure to report the [c]onviction within 30 days of its occurrence.” P. Br. at 9.  Petitioner’s concession is consistent with the facts I have found and regulatory requirements.

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Pursuant to 42 C.F.R. § 424.535(a)(9), CMS may revoke a supplier’s Medicare billing privileges if the supplier fails to comply with the reporting requirement of 42 C.F.R. § 424.516(d).  Physicians and nonphysician practitioners are required to report to their MACs “[a]ny adverse legal action” within 30 days.  42 C.F.R. § 424.516(d)(1)(ii) (emphasis added).  The Board has previously determined that the phrase “any adverse legal action” requires reporting of all actions adverse to a provider or supplier and not just final adverse action.  Akram A. Ismail, M.D., DAB No. 2429 at 10-11 (2011).  The Board has recognized that the goal of 42 C.F.R. § 424.516(d)(1)(ii) is “to ensure CMS received information about any adverse legal actions that may affect whether a supplier should be allowed to continue to participate in Medicare.” Gulf South Med. & Surgical Inst., DAB No. 2400 at 8 (2011).  The reporting required by 42 C.F.R. § 424.516(d)(1)(ii) is not limited to adverse actions that are final, e.g., no longer subject to appeal.  Furthermore, the requirement to report all adverse actions is broad enough to include both misdemeanor and felony convictions, which is consistent with the purpose of the regulation. 

I conclude that Petitioner’s conviction for disorderly conduct was an adverse legal action.  Petitioner concedes before me that he should have reported the conviction.  However, Petitioner argues that even though he failed to report the conviction, CMS should not have decided to revoke his Medicare enrollment and billing privileges after considering the factors listed in 42 C.F.R. § 424.535(a)(9).  The regulation requires that, in determining to revoke under 42 C.F.R. § 424.535(a)(9), CMS consider:  (1) whether the information was reported; (2) if reported, how late was it report; (3) the materiality of the data; and (4) any other information CMS deems relevant to the determination.  42 C.F.R. § 424.535(a)(9).  There is no question that Petitioner did not report his conviction and factors 1 and 2 require no further discussion. 

The evidence shows that the CMS hearing officer considered the remaining factors including materiality and other information relevant to her determination upholding revocation.  The hearing officer explained:

Regarding factor three, CMS considers the unreported information to be plainly material to [Petitioner’s] continued enrollment in the Medicare program because his felony conviction was a basis for the revocation from the Medicare program under § 424.535(a)(3).  Any failure to report changed enrollment data to CMS is of great concern.  CMS relies on its providers and suppliers to give us complete and accurate data to confirm that the provider or supplier still meets all Medicare requirements and that Medicare payments are made correctly.  Inaccurate or outdated information puts the Medicare Trust Funds at risk.

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Regarding factor four, CMS finds [Petitioner’s] admitted negligence of the reporting requirements under § 424.516(d) to be relevant to our determination.  CMS relies on its providers and suppliers to comply with program requirements.  It is each supplier’s responsibility to be aware of Medicare program requirements, and [Petitioner’s] failure to do so is of great concern to CMS.

CMS Ex. 1 at 5.  Petitioner argues that CMS should have also considered under the fourth factor that:  based on the advice of his counsel in his criminal proceeding Petitioner thought his offense was a misdemeanor that did not need to be reported; he reasonably believed, based on information provided CMS and the MAC, that he did not need to report until his conviction was final; and that revocation of Petitioner’s Medicare billing privileges will have an adverse impact on an underserved patient population in Arizona.  P. Br. at 11-14.  These specific arguments do not appear to have been presented to the CMS hearing officer when Petitioner requested reconsideration.  CMS Ex. 1 at 5, 12-13.  Petitioner does not present evidence to support his assertions regarding impact on the patient population and such evidence could only be admitted upon a showing of good cause due to Petitioner’s failure to have presented it to the hearing officer.  42 C.F.R. § 498.56(e).  The hearing officer addressed the arguments raised by Petitioner when he requested reconsideration.  The hearing officer specifically addressed the factors required by 42 C.F.R. § 424.535(a)(9) considering the evidence and arguments presented to her.  I do not review how CMS weighed the factors listed in 42 C.F.R. § 424.535(a)(9) when determining to revoke Petitioner’s Medicare enrollment and billing privileges.  Bradley, DAB No. 2663 at 13 n.13; Dinesh Patel, M.D., DAB No. 2551 at 10 (2013); Fayad, DAB No. 2266 at 16; Ahmed, DAB No. 2261 at 16‑17, 19.  Even if I weighed the evidence differently or considered the new arguments raised by Petitioner before me, I have no authority to substitute my discretion for that of CMS.  The facts establish a basis for revocation, and Petitioner presents no evidence disputing the fact that CMS considered the factors in § 424.535(a)(9)(i-iv).

To the extent that Petitioner’s arguments may be construed to be that CMS should be estopped from revoking Petitioner’s Medicare enrollment and billing privileges based on information disseminated by the MAC or CMS, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421-22 (1990).  Petitioner points to no evidence of affirmative misconduct such as fraud by the MAC or CMS. 

Petitioner’s arguments may also be construed to be requests for equitable relief.  P. Br. at 11-14.  However, I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB

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No. 2289 at 14 (2009) (noting that “[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”). 

Petitioner did not comply with the reporting requirement of 42 C.F.R. § 424.516(d)(1)(ii) and there is a basis for revocation of his billing privileges under 42 C.F.R. § 424.535(a)(9).

(iii.)  There is a basis for placing Petitioner on the CMS preclusion list.

On October 6, 2021, Petitioner was convicted of the felony offense of disorderly conduct in violation of Ariz. Rev. Stat. § 13-2904A.6.  In the reconsidered determination, the CMS hearing officer concluded that there was a basis for placing Petitioner’s name on the CMS preclusion list for two reasons:  (1) Petitioner’s state felony conviction within the previous 10 years that CMS deemed detrimental to the best interests of the Medicare program, and (2) Petitioner’s revocation under a reason other than that stated in 42 C.F.R. § 424.535(a)(3), namely his revocation under 42 C.F.R. § 424.535(a)(9) for failure to comply with Medicare reporting requirements.  CMS Ex. 1 at 6-7. 

The CMS hearing officer exercised the discretion granted to CMS under 42 C.F.R. §§ 422.2 and 423.100 and determined that Petitioner’s offense was detrimental to the best interests of the Medicare program.  In doing so, the hearing officer considered the factors required by the regulations, including the seriousness of Petitioner’s offense, when the offense occurred, and other information deemed relevant to the determination.  CMS Ex. 1 at 6-7.  The hearing officer upheld the initial determination to place Petitioner’s name on the CMS preclusion list for ten years.  Pursuant to 42 C.F.R. §§ 422.222(a)(5)(iii) and 423.120(c)(6)(vii)(C), an individual’s or entity’s name remains on the preclusion list for a period of ten years beginning on the date of the felony conviction, unless CMS determines that a shorter period is warranted.  CMS Ex. 1 at 6.  The hearing officer did not find a shorter period to be warranted.  CMS has also not exercised its discretion under to 42 C.F.R. §§ 422.222(a)(6) and 423.102(c)(6)(vi) to not list Petitioner’s name on the preclusion list or to remove his name from the list. 

Preclusion list review is strictly limited to whether there is a basis for adding the supplier to the CMS preclusion list.  Bradley, DAB No. 2663 at 13; 83 Fed. Reg. at 16,642 (Apr. 16, 2018).  Petitioner argues that I should determine CMS erred in determining to place Petitioner’s name on the preclusion list.  P. Br. at 14-15.  However, I have no authority to conduct review of the CMS exercise of discretion in determining that Petitioner’s underlying conduct was detrimental to Medicare and in adding Petitioner to the preclusion list, including the duration of the listing where, as here, I determine that there is a basis for such action.  42 C.F.R. §§ 422.2, 423.100 (definition of preclusion list); 83 Fed. Reg. 16,440, 16,641-67.

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10. The effective date of revocation of Petitioner’s Medicare enrollment and billing privileges is the date of Petitioner’s conviction, October 6, 2021.  42 C.F.R. § 424.535(g).
11. I have no authority to review CMS’s determination to impose a bar to Petitioner’s reenrollment in Medicare.
12. The bar to reenrollment began 30 days after the date on which the MAC mailed the notice of revocation, in this case December 19, 2021, and continues through October 6, 2031.  42 C.F.R. § 424.535(c).

There is no dispute that Petitioner was convicted of a felony on October 6, 2021.  The effective date of the revocation is controlled by 42 C.F.R. § 424.535(g).  The regulation provides that when revocation is based on a felony conviction, the effective date of revocation is the date of the conviction.  42 C.F.R. § 424.535(g).

(g) Effective date of revocation.  Revocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier, except if the revocation is based on Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational.  When a revocation is based on a Federal exclusion or debarment, felony conviction, license suspension or revocation, or the practice location is determined by CMS or its contractor not to be operational, the revocation is effective with the date of exclusion or debarment, felony conviction, license suspension or revocation or the date that CMS or its contractor determined that the provider or supplier was no longer operational.

42 C.F.R. § 424.535(g) (emphasis added).  This regulation grants CMS and its contractor no discretion to choose an effective date of revocation other than the date of the conviction.  Accordingly, the effective date of Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(3) was October 6, 2021.  Although failure to report the conviction is an independent basis for revocation under 42 C.F.R. § 424.535(a)(9) that would normally be effective 30 days after notice of the initial determination, the regulation does not grant CMS or its contractor discretion to choose the later effective date. 

When a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is generally barred from reenrolling in the Medicare program for one to ten years.  42 C.F.R. § 424.535(c).  The MAC informed Petitioner that he would be eligible to re-enroll on October 7, 2031, reflecting imposition of a reenrollment bar running through

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October 6, 2031, 10 years after the date of Petitioner’s conviction.  CMS Ex. 1 at 16.  There is no statutory or regulatory language establishing a right to review of the duration of the reenrollment bar CMS imposes.  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.535(c); 424.545; 498.3(b); and 498.5.  The Board has held that the duration of a revoked supplier’s reenrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and, thus, is not subject to ALJ review.  Vijendra Dave, M.D., DAB No. 2672 at 11 (2016). 

II. Conclusion

For the foregoing reasons, I conclude that there is a basis to revoke Petitioner’s Medicare enrollment and billing privileges effective October 6, 2021, and to place Petitioner’s name on the CMS preclusion through the duration of his reenrollment bar that runs through October 6, 2031.  

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Endnotes

¹   Citations are to the 2021 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.

²   The pronouns he, his, and him are used in this decision as Petitioner expressed no preference. 

³   Petitioner, a physician, is a “supplier” under the Act and the regulations.  A “supplier” furnishes services under Medicare and the term supplier applies to physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.” Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.

⁴   Available at https://www.azleg.gov/arsDetail/?title=13 (last visited Jun. 8, 2023).

⁵   The quality of legal advice Petitioner received is a matter between Petitioner and the attorney who gave the advice and does not impact this decision.

⁶   This version of Ariz. Rev. Stat. 13-604 was in effect from January 1, 2009, until it was revised effective July 1, 2022.  This version is cited because it was in effect when Petitioner was convicted and when the initial and reconsidered determinations were issued.  Under either version, Petitioner was convicted of a felony under Arizona law on the dates of the initial and reconsidered determinations and this decision. 

 

⁷   Petitioner raises arguments about whether he was convicted of a felony related to exclusion under 42 C.F.R. § 424.535(a)(9).  P. Br. at 11-13, RFH at 7.  However, whether his conviction was a felony is also an element necessary for exclusion under 42 C.F.R. § 424.535(a)(3).

 

⁸   The term “felony” is not defined in 42 C.F.R. pt. 424.  There is a definition of felony in federal criminal code.  However, because Petitioner was convicted under Arizona law of an offense made punishable under Arizona statutes, it is appropriate to consider whether Petitioner was convicted of a felony under the Arizona criminal code.

⁹   CMS also discussed the facts underlying Petitioner’s convictions and determined that “the specific facts underlying the conviction” demonstrated that his felony offenses were detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 7 at 4.  Because insurance fraud is enumerated by regulation as a per se detrimental felony crime, it is unnecessary for me to further address CMS’s case-specific analysis.  See 42 C.F.R. § 424.530(a)(3)(i)(B). 

¹⁰   Sections 424.530(a)(4) (pertaining to denial of enrollment) and 424.535(a)(4) (pertaining to revocation of enrollment) contain nearly identical language.  The DAB’s analysis is applicable to both enrollment denial and enrollment revocation cases under sections 424.530 and 424.535.  See, e.g., Brian K. Ellefsen, DO, DAB No. 2626 at 9-10 (2015).