Hollis K. Barton, CR6308 (2023)

DECISION

Petitioner, Hollis K. Barton, is a dentist, practicing in Georgia, who participated in the Medicare program as a supplier of services.  On May 3, 2017, he was convicted of felony identity fraud.  He did not report the conviction to the Medicare contractor.  Based on his felony conviction and his failure to report the adverse legal action, the Medicare contractor, Palmetto GBA, acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked his Medicare billing privileges, imposed a ten-year reenrollment bar, and added his name to the Medicare preclusion list. 

Petitioner now appeals. 

I affirm CMS’s determination.  I find that CMS is authorized to revoke Petitioner’s Medicare privileges and to add his name to the Medicare preclusion list because:  1) within the ten years preceding this action, Petitioner Barton was convicted of a felony that CMS reasonably determined is detrimental to the best interests of the Medicare program and its beneficiaries; and 2) Petitioner failed to report the conviction to the Medicare contractor. 

I have no authority to review the length of the reenrollment bar. 

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Statutory and Regulatory Background.  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, outpatient, home health, 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 and other practitioners who furnish healthcare services may participate in the program as “suppliers” of services; however, they must enroll in the program in order to receive Medicare payments.  Act § 1861(d), (q), (r) (42 U.S.C. § 1395x(d), (q), (r)); 42 C.F.R. §§ 400.202; 424.505. 

Section 424.535(a) authorizes CMS to revoke a supplier’s Medicare enrollment and billing privileges on one or more of the grounds set forth under that subsection.  So long as CMS shows that one of the regulatory bases exists, I must uphold the revocation.  Wassim Younes, M.D. and Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018), citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016). 

Procedural Background.  Here, by letter dated June 9, 2022, the Medicare contractor, Palmetto GBA, advised Petitioner that his Medicare privileges were revoked, effective May 3, 2017.  The letter explained that the contractor revoked Petitioner’s Medicare privileges for two reasons: 

1. pursuant to 42 C.F.R. § 424.535(a)(3), because Petitioner Barton was convicted of a felony, as defined in 42 C.F.R. § 1001.2 – (identity fraud, in violation of O.C.G.A. § 16-9-121); and

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2. pursuant to 42 C.F.R. § 424.535(a)(9), because Petitioner did not notify CMS of the adverse legal action within 30 days, as required by 42 C.F.R. § 424.516. 

CMS Ex. 2 at 1.  The contractor imposed a ten-year reenrollment bar (May 4, 2027), pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 2 at 3. 

The letter also advised Petitioner that the contractor added him to CMS’s preclusion list, as authorized by 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  It explained that, if Petitioner requested reconsideration, this action would become effective on the date the reconsidered determination was issued.  CMS Ex. 2 at 1-2. 

Petitioner requested reconsideration.  In a reconsidered determination, dated December 16, 2022, a CMS hearing officer upheld the revocation under sections 424.535(a)(3) and 424.535(a)(9).  Specifically, she found that: 

• Petitioner had been convicted of felony identity fraud, which is detrimental to the best interests of the Medicare program and its beneficiaries under section 424.535(a)(3)(ii)(D); and
• Petitioner did not report his felony conviction to the Medicare contractor within 30 days or at all. 

CMS Ex. 1 at 8. 

The hearing officer also upheld the determination to include Petitioner’s name on CMS’s preclusion list.  Id. 

Decision on the written record.  In my pre-hearing order, I directed the parties to list all proposed witnesses and to submit, as a proposed exhibit, the complete, written direct testimony of any proposed witness.  Acknowledgment and Pre-hearing Order at 4, 5 (¶¶ 4(c)(iv), 8) (Feb. 13, 2023).  Neither party proposed any witnesses.  Because there are no witnesses to be examined or cross-examined, an in-person hearing would serve no purpose, and I may decide this case based on the written record.¹  

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Exhibits.  CMS submits its brief (CMS Br.) with nine exhibits (CMS Exs. 1-9).  Petitioner submits a letter response, which he labels P. Ex. 1, with an “addendum.”  The addendum includes documents labeled P. Exs. 2-6.  See DAB E-File Dkt. C-23-276, Docs. # 7-10.  

In the absence of any objections, I admit into evidence CMS Exs. 1-9 and P. Exs. 2-6. 

Discussion

1. Because Petitioner Barton was, within ten years preceding the revocation, convicted of a felony that CMS reasonably finds detrimental to the best interests of the Medicare program, and because he failed to report his conviction to the Medicare contractor, CMS properly revoked his Medicare enrollment under 42 C.F.R. § 424.535(a)(3) and 424.535(a)(9).²

Revocation of enrollment.  CMS may revoke a supplier’s Medicare enrollment and billing privileges if, within the preceding ten years, the supplier or any owner or managing employee was convicted of a “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)(i); see also Act §§ 1842(h)(8) and 1866(b)(2)(D).  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.  42 C.F.R. § 424.535(a)(3)(ii)(B).  

CMS may also revoke Medicare privileges if a supplier does not comply with the reporting requirements specified in section 424.516(d).  42 C.F.R. § 424.535(a)(9).  Under section 424.516(d), physicians must report to their Medicare contractor, within 30 days, “any adverse legal action.”  

Petitioner Barton’s conviction.  In an indictment, filed December 13, 2016, Petitioner Barton was charged with one count of identity fraud, in violation of Ga. Code § 16-9-121, and two counts of financial transaction card fraud, in violation of Ga. Code § 16-9-33, all felonies.  CMS Ex. 2 at 2, 3, 9.  The indictment charged that, without authorization or consent, he used the tax identification number (which is identifying information) of a family and cosmetic dentistry business.  CMS Ex. 3 at 9. 

On May 3, 2017, Petitioner Barton pleaded guilty to identity fraud, thus admitting that he improperly used a business’s tax identification number.  CMS Ex. 3 at 5, 7, 12-14.  The Court accepted his plea and sentenced him to three years probation.  CMS Ex. 3 at 14-17. 

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Legal basis for revocation.  The Departmental Appeals Board has consistently held that an administrative law judge’s review of CMS’s determination to revoke a supplier’s Medicare enrollment is limited to deciding whether CMS has established one or more of the grounds specified in section 424.535(a).  William Garner, MD, DAB No. 3026 at 16 (2020); Norman Johnson, M.D., DAB No. 2779 at 11 (2017), and cases cited therein.  Although CMS itself has the discretion to consider “unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” I do not.  I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  Johnson, M.D. DAB No. 2779 at 11, citing Care Pro Home Health, Inc., DAB No. 2723 at 9 n.8 (2016); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d., Ahmed v. Sebelius, 710 F. Supp.2d 167 (D. Mass. 2010). 

Under the Georgia criminal statute, a person commits identity fraud when he uses identifying information “with the intent to defraud.”  O.C.G.A. § 16-9-121.  Here, Petitioner concedes that he used the business’s tax identification number in order to apply for a credit card.  P. Ex. 2.  Committing fraud in order to obtain credit is similar to financial crimes, such as insurance fraud, that are, by regulation, “detrimental to the best interests of the Medicare program and its beneficiaries.” Stanley Beekman, DAB No. 2650 at 8 (2015) (making false statements on a bank loan application is a financial crime, that justifies revoking Medicare enrollment).  

CMS has therefore established grounds for revoking Petitioner’s Medicare enrollment under section 424.535(a)(3). 

Petitioner argues that he was not convicted under Georgia law because he entered a “first offender” plea, and the conviction was ultimately expunged.  Under the Georgia statute, an individual who 1) participates in the First Offender Program; 2) completes all its terms; and 3) commits no new crimes is considered exonerated, and his criminal record is sealed.  P. Ex. 2.  In an order dated September 29, 2022, the Court “discharged” Petitioner “without a court adjudication of guilt.” CMS Ex. 4. 

Petitioner is nevertheless subject to revocation.  Federal, not state, law controls what constitutes a “conviction” for purposes of federal laws designed to protect the Medicare program and its beneficiaries.  Sunsites Pearce Fire District, DAB No. 2926 at 7-9 (2019); Stephen White M.D., DAB No. 2912 at 13 (2018); Dennis McGinty, PT, DAB No. 2838 at 7-8 (2017); Kimberly Shipper, DAB No. 2804 at 5 (2017); Lorrie Laurel, PT, DAB No. 2524 at 5-6 (2013); Henry L. Gupton, DAB No. 2058 at 7 (2007), aff’d sub nom. Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).  Thus, under 424.535(a)(3), “convicted” means that a judgment of conviction has been entered by a federal, state, or local court regardless of whether the judgment of conviction has been expunged or otherwise removed.  42 C.F.R. § 1001.2; see 42 C.F.R. § 424.535(a)(3)(i);

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Shipper, DAB No. 2804 at 5 (holding that Petitioner’s guilty plea constituted a conviction, even though the state court withheld adjudication of guilt). 

When, as here, a revocation is based on a felony conviction, its effective date is the date of the conviction.  42 C.F.R. § 424.535(g).  CMS determined that Petitioner Barton was convicted on May 3, 2017, the day he pleaded guilty, and the court accepted the plea.  See Michael Scott Edwards, DAB No. 2975 at 2 (2019). 

Failing to report the conviction.  As noted above, I must uphold the revocation so long as one regulatory basis supports it.  In addition to revoking under section 424.535(a)(3), CMS may revoke Petitioner’s Medicare enrollment under section 424.535(a)(9) because he admittedly did not, within 30 days, report his felony conviction to the Medicare contractor. 

Petitioner argues that he was not required to report because, ultimately, he was not convicted.  He also claims that his attorney advised him not to admit to a felony.  P. Ex. 2 at 1.  Petitioner’s arguments fail for multiple reasons:  he was, in fact, convicted of a felony; he is responsible for understanding and complying with Medicare requirements and cannot escape his obligation to report by shifting the responsibility to someone else (his attorney).  Angela R. Styles, DAB No. 2882 at 9-10 (2018). 

Most fatal to his position, however, he was required to report within 30 days of his conviction, or no later than June 2, 2017.  The court did not discharge his conviction until September 29, 2022, more than five years after he was required to report.  At the time he was required to report, he stood convicted under both state and federal law. 

2. I have no authority to review CMS’s determination to impose a ten-year reenrollment bar. 

When a supplier’s billing privileges are revoked, he may not participate in the Medicare program until the end of his reenrollment bar, which must be for a minimum of one year but no more than ten years (except under circumstances that don’t apply here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1).  Here, CMS imposed a ten-year reenrollment bar.  Because the length of a reenrollment bar is not listed as an appealable determination, I have no authority to review it.  42 C.F.R. § 498.3(b); Linda Silva, P.A., DAB No. 2966 at 11 (2019); Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord, Garner, MD, DAB No. 3026 at 16, Lilia Gorovits, MD, DAB No. 2985 at 15-16 (2020). 

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3. CMS acted within its authority when it added Petitioner to its preclusion list because his Medicare privileges were revoked for conduct detrimental to the best interests of the Medicare program, and he is under a reenrollment bar.  I have no authority to review CMS’s determination as to the length of time he remains on the preclusion list.

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.³  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: 

• are currently revoked from Medicare enrollment, are under an active reenrollment bar, and CMS determines that the underlying conduct leading to the revocation is detrimental to the best interests of the Medicare program; or
• have engaged in behavior for which CMS could have revoked the prescriber, individual, or entity had it been enrolled in the Medicare program, and CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program. 

Review of Petitioner’s inclusion on the preclusion list.  My review here is limited to whether CMS had the authority to include Petitioner on the preclusion list.  42 C.F.R. § 498.3(b)(20); see 83 Fed. Reg. 16,642-16,643 (Apr. 16, 2018) (explaining that appeals are limited to the individual’s inclusion on the preclusion list).  

As discussed above, Petitioner Barton was convicted of a crime that is detrimental to the best interests of the Medicare program and its beneficiaries.  CMS was therefore authorized to revoke his Medicare enrollment and billing privileges and to impose a reenrollment bar.  42 C.F.R. § 424.535(a)(3)(B), 424.535(c).  Because his enrollment was revoked for a felony conviction deemed detrimental to the best interests of the Medicare program and its beneficiaries and because he is under a reenrollment bar, CMS is authorized to add him to the Medicare preclusion list.  42 C.F.R. §§ 422.2; 423.100.  I must uphold its determination to do so.  See Wendell Foo, M.D., DAB No. 2904 at 3

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(2018); Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8, citing Brueggeman, D.P.M., DAB No. 2725 at 15. 

Having determined that CMS properly added Petitioner to the preclusion list, I have no authority to review CMS’s determination as to how long he remains there.  See 42 C.F.R. § 498.3(b); Dave, M.D., DAB No. 2672 at 9-12 (limiting ALJ review to the determinations in section 498.3(b)).  

Conclusion

CMS justifiably determined that Petitioner Barton was convicted of a felony detrimental to the best interests of the Medicare program and its beneficiaries; it may therefore revoke his Medicare enrollment and billing privileges and impose a reenrollment bar. 

CMS was also authorized to include Petitioner on the preclusion list because his Medicare enrollment was revoked for conduct detrimental to the best interests of the Medicare program, and because he is under a reenrollment bar.  I have no authority to review the lengths of the reenrollment bar nor his time on the preclusion list. 

For these reasons, I affirm CMS’s determinations. 

Endnotes

¹ That I decide this case based on the written record does not mean that Petitioner has not had a hearing.  Courts recognize that, although a case may be decided on summary judgment or based on the written record, the administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing”). 

² My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. 

³ Apparently, CMS considered requiring Medicare enrollment for all providers and suppliers of Medicare Advantage services and subscribers 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 56,442, 56,448 (November 28, 2017); 83 Fed. Reg. 16,646 (April 16, 2018).