Tammy Dobbin, APN and Ebony Wellness, LLC, CR6316 (2023)

DECISION

The Centers for Medicare & Medicaid Services (CMS) upheld determinations by National Government Services (NGS), a Medicare administrative contractor, revoking the Medicare enrollment and billing privileges of Petitioners, Tammy Dobbin, APN (Ms. Dobbin), and her practice, Ebony Wellness, LLC (the practice), pursuant to 42 C.F.R. § 424.535(a)(3) because Ms. Dobbin, within the preceding 10 years, had been convicted of a felony offense that is detrimental to the best interests of the Medicare program and its beneficiaries.  CMS also upheld the revocation of Petitioners’ enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) based on their report of false or misleading information on an enrollment application.  Additionally, CMS upheld Petitioners’ placement on its Preclusion List.  I affirm the revocation of Petitioners’ Medicare enrollment and billing privileges and placement on the Preclusion List. 

I. Background and Procedural History

Petitioners are a nurse practitioner and the practice that she solely owns and manages.  See CMS Exs. 1 at 181, 183; 2 at 182-183. 

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On June 4, 2015, Ms. Dobbin, with the assistance of counsel, pleaded guilty to the felony offense of bank fraud.  CMS Ex. 1 at 152; see 18 U.S.C. §§ 1344 (30-year maximum term of incarceration for bank fraud), 3559 (classifying the offense as a class B felony).  Pursuant to a plea agreement, Ms. Dobbin admitted that as a licensed loan officer, she participated in a scheme to submit false mortgage applications for 17 residential properties between August 2006 and July 2007, with resulting losses to 10 separate lenders totaling $4,955,830.  CMS Ex. 1 at 153-156.  The plea agreement recognized Ms. Dobbin’s cooperation with the United States, with the government agreeing that continued cooperation would cause it to “move the Court, pursuant to [United States Sentencing] Guideline § 5K1.1, to depart downward from the low end of the applicable guideline range, and shall recommend a sentence that includes a term of imprisonment in the custody of the Bureau of Prisons of 66 percent of the low end of the applicable guideline range.”  CMS Ex. 1 at 161.  The sentence imposed on October 10, 2019, included one day of incarceration (time already served), a two-year term of supervised release, and restitution of $4,612,330 (with joint and several liability with other defendants) to various financial institutions.  CMS Ex. 1 at 172-173, 177-179.  

Following her conviction, Ms. Dobbin obtained an advanced nursing degree and became licensed as a nurse practitioner.  P. Br. at 2 (reporting licensure date of November 2021).  On December 9, 2021, Ms. Dobbin applied to enroll in the Medicare program as a nurse practitioner.  CMS Ex. 1 at 181-185.  Approximately six months later, the practice applied to enroll in the Medicare program.  CMS Ex. 2 at 180-187.  Neither enrollment application disclosed that Ms. Dobbin had a felony conviction for bank fraud within the preceding 10 years.  CMS Exs. 1 at 183; 2 at 182 (both applications providing an answer of “No” to a question asking whether a final adverse legal action has ever been imposed against an applicant). 

On December 5, 2022, after learning of Ms. Dobbin’s felony conviction, NGS revoked Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) and (4).¹  CMS Exs. 1 at 138-141; 2 at 137-140.  NGS informed Petitioners that they would be placed on CMS’s Preclusion List (CMS Exs. 1 at 139; 2 at 138), and that a 10-year bar to re-enrollment had been imposed.  CMS Exs. 1 at 141; 2 at 140. 

Petitioners, through their then-counsel, requested reconsideration of NGS’s determinations on January 18, 2023.  CMS Exs. 1 at 13-137; 2 at 12-136.  In separate reconsidered determinations dated April 6, 2023, CMS, through its Provider Enrollment & Oversight Group, upheld the revocation of Petitioners’ Medicare enrollment and

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billing privileges and placement on the Preclusion List.  CMS Exs. 1 at 1-12; 2 at 1-11.  CMS determined that Ms. Dobbin’s felony offense was detrimental to the best interests of the Medicare program and its beneficiaries, explaining: 

Pursuant to § 424.535(a)(3), CMS may revoke a supplier’s enrollment if they were, within the preceding 10 years, convicted (as that term is defined at § 1001.2) of a Federal or State felony offense that CMS deems detrimental to the best interests of the Medicare program and its beneficiaries.  Pursuant to § 1001.2, convicted means that a Federal, State, or local court has accepted a plea of guilty or nolo contendere by an individual or entity.  Here, Ms. Dobbin does not dispute that, on June 4, 2015, she pled guilty and was thereby, convicted of one felony count of Bank Fraud, in violation of 18 U.S.C. § 1344 . . . . Therefore, Ms. Dobbin was convicted, as that term is defined in § 1001.2, of a federal felony offense within the preceding 10 years.  

CMS must also determine whether the felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  CMS has determined through public notice-and-comment rulemaking, that certain types of offenses are per se detrimental to the best interests of the Medicare program and its beneficiaries.  The per se detrimental offenses enumerated at § 424.535(a)(3)(ii)(A)-(D) include, but are not limited in scope and severity to, “financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud, and other similar crimes.” As stated above, on June 4, 2015, Ms. Dobbin pleaded guilty to one count of Bank Fraud.  According to the indictment, Ms. Dobbin and her co-conspirators fraudulently obtained approximately $370,500 in loan proceeds from Chase Bank by submitting materially false loan packages to Chase Bank for property . . . .  Accordingly, CMS finds that Ms. Dobbin’s felony offense is a financial crime, as described in § 424.535(a)(3)(ii)(B), as Ms. Dobbin fraudulently obtained money, at the expense of a lender, for her own financial gain.  CMS has found that a conviction of any felony offense that falls into the enumerated categories is intrinsically detrimental to the best interests of the Medicare program and its beneficiaries.  That is, the mere existence of a felony conviction in the last 10 years for any of the enumerated offenses is a sufficient basis to revoke a supplier’s Medicare enrollment.  Therefore, CMS finds that Ms. Dobbin’s felony conviction is per se detrimental to the best interests of the Medicare program.  

Although Ms. Dobbin argues that her felony offense is not detrimental to the best interests of the Medicare program, CMS disagrees, as we find that Ms. Dobbin’s felony offense is detrimental to the best interests of the Medicare program and its beneficiaries, based on the specific facts and

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circumstances of the case.  According to Ms. Dobbin’s guilty plea, she disclosed that in addition to the $370,500 that was fraudulently obtained from Chase Bank, between 2006 and 2007, Ms. Dobbin and her co-conspirators fraudulently obtained loans to purchase 16 properties, causing $4,955,830 in losses from 10 separate lenders.  More specifically, Ms. Dobbins [sic] and her co-conspirators caused approximately $256,000 in losses to America’s Wholesale Lender; approximately $307,000 in losses to Bank United FSB; approximately $600,200 in losses to Chase Bank; approximately $578,130 in losses to CIT Group; approximately $1,290,500 in losses to Equifirst Corporation; approximately $405,000 in losses to First Franklin; approximately $405,000 in losses to Freemont Investment & Loan; approximately $405,000 in losses to Resmae Mortgage Corporation; $425,000 in losses to Washington Mutual Bank; and approximately $284,000 in losses to WMC Mortgage group . . . . The seriousness of Ms. Dobbin’s actions is also demonstrated by the fact that the Court sentenced Ms. Dobbin to one-night imprisonment, two years of supervised release from prison, and by the $4,612,330 in restitution payments . . . . CMS finds Ms. Dobbin’s actions to be incredibly concerning.  CMS finds that Ms. Dobbin’s conduct displays dishonesty, untrustworthiness, a lack of integrity, and very poor judgment.  Based on the behavior detailed above, Ms. Dobbin has the propensity for materially misrepresenting information for self-enrichment at the expense of others.  Ms. Dobbin’s behavior calls into question her ability to be a trustworthy and reliable partner in the Medicare program.  It stands to reason that this behavior could detrimentally impact the Medicare program through misrepresented claims for payments that would have a direct negative result on Medicare Trust Funds.  A negative impact on Medicare Trust Funds is also detrimental to Medicare beneficiaries.  

CMS Ex. 1 at 5-6 (reconsidered determination pertaining to Ms. Dobbin) (internal citations omitted); see CMS Ex. 2 at 5-6 (substantially similar discussion in the reconsidered determination pertaining to the practice).  CMS also upheld Petitioners’ revocation pursuant to 42 C.F.R. § 424.535(a)(4) based on the report of false or misleading response of “no” to a question asking whether an applicant had been the subject of a final adverse legal action.  CMS Exs. 1 at 6-7; 2 at 6-7. 

CMS addressed Petitioners’ placement on the Preclusion List, finding that Ms. Dobbin’s criminal offense and the failure to report the felony conviction were detrimental to the Medicare program.  CMS Exs. 1 at 7-10; 2 at 7-9; see 42 C.F.R. §§ 422.2, 423.100. 

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Petitioners filed requests for an administrative law judge (ALJ) hearing on April 20, 2023.²  CMS filed a combined brief and memorandum of law in support of summary judgment (CMS Br.), along with two proposed exhibits (CMS Exs. 1-2).³  Petitioners submitted a brief and opposition to CMS’s motion for summary judgment and two incorrectly marked proposed exhibits (P. Exs. N and O).⁴ 

P. Ex. N is duplicative of CMS’s evidentiary submissions and can be found at CMS Ex. 1 at 98-100 and CMS Ex. 2 at 97-99. Therefore, I do not admit this duplicative evidence into the evidentiary record.

Petitioners also submitted P. Ex. O, which is a copy of a Department of Justice press release reporting that it had entered into a civil settlement with JPMorgan Chase to resolve complaints that it had originated and underwritten noncompliant mortgage loans.  Although CMS reported no objection to this proposed exhibit, I must determine whether this evidence is admissible because I must exclude any new documentary evidence if I do not find good cause for its submission for the first time at the ALJ level.  42 C.F.R. § 498.56(e)(2)(ii); Care Pro Home Health, Inc., DAB No. 2723 at 11 (2016) (“In enrollment revocation cases, an ALJ must exclude ‘new documentary evidence’ – that is, documentary evidence that a provider did not previously submit to CMS at the reconsideration stage (or earlier) – unless the ALJ determines that ‘the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.’ 42 C.F.R. § 498.56(e)(1).”); see Pre-Hearing Order § 10 (directing Petitioner to contemporaneously file with its pre-hearing exchange a statement of good cause regarding the submission of any new documentary evidence).  While “good cause” is not

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defined in the regulations, the Departmental Appeals Board (DAB) has explained that, in showing good cause in such a situation, a party must explain its “failure to submit [evidence] at the reconsideration stage (or earlier).”  Care Pro, DAB No. 2723 at 14. 

Petitioners did not submit P. Ex. O with their requests for reconsideration and have not established good cause to submit this evidence for the first time at the hearing stage.  Specifically, Petitioners’ accompanying statement, dated June 5, 2023, lacks any assertion of good cause for this late submission of evidence.  42 C.F.R. § 498.56(e); see CMS Exs. 1 at 13-137; 2 at 12-136 (requests for reconsideration and supporting evidence).  Further, it is simply irrelevant whether a bank that was a victim of the bank fraud scheme acknowledged civil liability for improper, but not criminal, origination and underwriting practices.  See CMS Ex. 1 at 69 (order listing JP Morgan Chase Bank as a payee of restitution).  Petitioners have not shown the relevance of a federal civil settlement involving a lender to a Medicare enrollment revocation based on an individual’s felony conviction and failure to report the felony conviction on enrollment applications.  There is no basis to admit late-submitted irrelevant and immaterial evidence for which no good cause was shown.  See 42 C.F.R. § 498.61 (ALJ rules on the admissibility of evidence). 

I admit CMS Exs. 1 and 2 into the evidentiary record.  Because neither party has submitted the written direct testimony of any witness, a hearing is unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order §§ 12-14.  The record is closed, and I issue this decision on the merits.⁵ 

II. Issues

1. Whether CMS had a legitimate basis to uphold the revocation of Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) based on Ms. Dobbin’s felony conviction;

2. Whether CMS had a legitimate basis to uphold the revocation of Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) based on the report of false or misleading information in Petitioners’ enrollment applications;

3. Whether the length of a re-enrollment bar is reviewable; and

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4. Whether CMS had a legitimate basis to uphold Petitioners’ placement on its Preclusion List.

III. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.1(g), 498.3(b)(17) and (20), 498.5(l)(2); see 42 U.S.C. § 1395cc(j)(8). 

IV. Findings of Fact, Conclusions of Law, and Analysis⁶

As a nurse practitioner and a practice, Ms. Dobbin and the practice are suppliers of health care services for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.75.  In order to participate in the Medicare program, a supplier must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may revoke a supplier’s enrollment and billing privileges for any reason stated in 42 C.F.R. § 424.535(a). 

CMS may revoke a supplier’s enrollment based on the existence of a felony conviction, as set forth in 42 C.F.R. § 424.535(a)(3), which currently provides: 

(3) Felonies.  (i) The provider, supplier, or any owner, managing employee, managing organization, officer, or director of the provider or 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.

(ii) Offenses include, but are not limited in scope or severity to—

* * *

(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.  

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42 C.F.R. § 424.535(a)(3)(i)(B); see 42 U.S.C. § 1395u(h)(8) (authorizing the Secretary to deny enrollment when a prospective supplier has been convicted of a felony offense that the Secretary has determined is detrimental to the best interests of the Medicare program or its beneficiaries).  CMS may also revoke a supplier’s Medicare enrollment when the supplier “certifie[s] as ‘true’ misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.”  42 C.F.R. § 424.535(a)(4).  CMS is authorized to impose a bar to re‑enrollment for a minimum of one year, but no more than ten years.  42 C.F.R. § 424.535(c)(1)(i). 

Additionally, CMS has established a single list of providers and prescribers who are precluded from being reimbursed for Medicare Advantage items or services or Part D drugs they furnish or prescribe to Medicare beneficiaries.⁷  42 C.F.R. §§ 422.222, 423.120(c)(6).  As relevant for purposes of the discussion in this decision, CMS may place an individual, entity, or prescriber on its Preclusion List under the following circumstances:  

(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 . . . are –

(i) The severity 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, 423.100. 

When CMS revokes a supplier’s enrollment and billing privileges, the supplier has a right to an ALJ hearing and DAB review.  See 42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2)-(3); see 42 U.S.C. § 1395cc(j)(8).  Although the Secretary’s regulations afford CMS discretion with respect to its determinations, the regulations do not afford an ALJ the same discretion.  The DAB has unambiguously stated, “[o]n review of a determination to revoke a Medicare supplier’s billing privileges, an ALJ and the Board ‘decide only

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whether CMS has established a lawful basis for the revocation.’”  Village Apothecary, Inc., DAB No. 3060 at 6 (2022) (quoting Cornelius M. Donohue, DPM, DAB No. 2888 at 4 (2018)).  The DAB has further explained that CMS “may have discretion to consider unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” but that “its role (and the role of [ALJs]) is limited to deciding whether CMS has a permissible ‘legal basis’ for revocation.”  Care Pro, DAB No. 2723 at 9 fn.8.  Thus, the scope of my review is whether CMS had a legitimate basis to revoke Petitioners’ Medicare enrollment and billing privileges, and not whether I would make the same determination in the first instance. 

1. 1. Ms. Dobbin, a nurse practitioner, is the sole owner and managing employee of Ebony Wellness, LLC, the practice.
2. 2. On October 10, 2019, a federal district court imposed sentence and judgment following Ms. Dobbin’s guilty plea to bank fraud, in violation of 18 U.S.C. § 1344.
3. 3. Pursuant to 18 U.S.C. § 1344, the offense of bank fraud is a felony offense that is punishable by up to of 30 years of incarceration.
4. 4. Ms. Dobbin has been convicted of a felony offense as contemplated by 42 C.F.R. § 1001.2.
5. 5. In enrollment applications submitted in December 2021 and June 2022, Petitioners reported “No” in response to a question asking whether an applicant had been the subject of a final adverse legal action within the preceding 10 years.
6. 6. On December 5, 2022, NGS revoked Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) and (a)(4) and placed Petitioners on CMS’s Preclusion List.
7. 7. CMS properly upheld the revocation of Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) because Ms. Dobbin, within the preceding 10 years, had been convicted of a felony offense that is detrimental to the best interests of the Medicare program and its beneficiaries.
8. 8. CMS properly upheld the revocation of Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) because the enrollment applications falsely reported that an applicant had not been the subject of a final adverse legal action within the preceding 10 years.

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9. 9. NGS imposed a 10-year bar to re-enrollment.
10. 10. A 10-year re-enrollment bar is authorized pursuant to 42 C.F.R. § 424.535(c) and is not a reviewable initial determination.
11. 11. CMS determined that the conduct leading to Petitioners’ enrollment revocations was detrimental to the Medicare program pursuant 42 C.F.R. § 422.2 and 423.100, and Petitioner has not offered any basis for why CMS did not have a legitimate basis to uphold Petitioners’ placement on the Preclusion List.

CMS was authorized to revoke Petitioners’ Medicare enrollment and billing privileges because Ms. Dobbin, a nurse practitioner and the sole owner and managing employee of the practice, committed bank fraud, a felony criminal offense that CMS has determined is per se detrimental to the best interests of the Medicare program and its beneficiaries, within the preceding 10 years. 

Ms. Dobbin, a nurse practitioner, is the sole owner and managing employee of the practice.  CMS Exs. 1 at 181; 2 at 183.  On June 4, 2015, Ms. Dobbin entered into a plea agreement in which she admitted that she “knowingly participated in a scheme to defraud and to obtain money and funds owned by and under the control of a financial institution, namely, Chase Bank, by means of materially false and fraudulent pretenses, representations, and promises.”  CMS Ex. 1 at 153.  On October 10, 2019, a district court imposed judgment for the offense of “18 U.S.C. § 1344 Bank Fraud.”  CMS Ex. 1 at 171. Petitioners concede that Ms. Dobbin has a felony conviction for bank fraud.  P. Br. at 3 (“Ms. Dobbin was allowed to plead guilty to only a single count of bank fraud, in violation of 18 U.S.C. § 1344.”).  Petitioners also do not dispute that bank fraud is a financial crime.  P. Br. at 5 (arguing that “[f]inancial crimes are listed as an example of crime which may be included . . . but this is not a mandate that all convictions for financial crimes lead to revocation.”). 

The DAB has determined that bank fraud is a financial crime that is per se detrimental to the best interests of the Medicare program.  Stanley Beekman, D.P.M., DAB No. 2650 at 8 (2015) (“On their face, conspiring to commit bank fraud and using false statements to obtain a bank loan are crimes that are financial at their heart, with elements of seeking money using criminal devices.”).The DAB further observed that “lying to the bank in order to obtain loans by criminal means” amounts to financial misconduct.  Id.  The DAB also stated that “CMS’s determination that [the petitioner] committed a financial crime is, in and of itself, legally sufficient to sustain CMS’s revocation under the regulation,” and determined that the ALJ “correctly concluded that CMS was authorized to revoke [the petitioner’s] Medicare billing privileges because his felony conviction was a ‘financial crime’ within the plain meaning of section 424.535(a)(3).”  Beekman, DAB No. 2650 at 9.  Similar to the criminal conduct that was addressed in the Beekman decision, Ms.

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Dobbin admitted in her plea agreement that she “knowingly executed and attempted to execute the . . . scheme by causing to be submitted a loan application package containing materially false statements to Chase Bank, including materially false statements about [the applicant’s] employment, income, and intention to occupy the property,” resulting in hundreds of thousands of dollars of losses to the lender.  CMS Ex. 1 at 154-155.  Ms. Dobbin also conceded that she and her “co-schemers” caused losses to various lenders totaling in excess of $4 million.  CMS Ex. 1 at 155-156 (listing each lender and the corresponding amount of losses caused by “[Ms.] DOBBIN and her co-schemers”).  Ms. Dobbin pleaded guilty to committing bank fraud and admitted that she knowingly made false representations to obtain loans (CMS Ex. 1 at 152-153); the DAB has determined that such criminal activity is a financial crime that is a basis for CMS to revoke enrollment in the Medicare program.  Beekman, DAB No. 2650 at 9; see 42 C.F.R. § 424.535(a)(3)(i)(B). 

CMS had a legitimate basis to uphold NGS’s revocation of the Medicare enrollment of Ms. Dobbin and the practice that she owns and manages, pursuant to 42 C.F.R. § 424.535(a)(3), based on Ms. Dobbin’s felony conviction that is per se detrimental to the best interests of the Medicare program and its beneficiaries. 

CMS was authorized to revoke Petitioners’ Medicare enrollment and billing privileges because the enrollment applications for both Ms. Dobbin and the practice falsely reported that Ms. Dobbin had not been the subject of a final adverse action within the preceding 10 years, even though Ms. Dobbin had been convicted of felony bank fraud less than three years earlier. 

Petitioners do not dispute that their December 2021 and June 2022 enrollment applications included false information that Ms. Dobbin, as a nurse practitioner and owner/manager of the practice, had not been the subject of a final adverse legal action.  P. Br. at 1 (“It is clear that Tammy Dobbin did not deliberately omit her felony conviction.  She did not complete, nor sign her Medicare Application.”).  The DAB has explained that 42 C.F.R. § 424.535(a)(4) “does not require proof that [the applicant] subjectively intended to provide false information, only proof that he in fact provided misleading or false information that he certified as true.”  Sonjay Fonn, D.O. and Midwest Neurosurgeons, LLC, DAB No. 3086 at 16 (2023) (emphasis in original).  

Petitioners cannot evade responsibility for the content of their enrollment applications by claiming that a third-party credentialing company completed and signed the applications on their behalf.  42 C.F.R. § 424.510(d)(3) (“The certification statement found on the enrollment application must be signed by an individual who has the authority to bind the provider or supplier, both legally and financially, to the requirements set forth in this chapter.”).  Petitioners claim that Ms. Dobbin signed an authorization for the credentialling company to “sign all [e]nrollment documents for her,” and submitted

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evidence in support of this claim.⁸  P. Br. at 1; CMS Exs. 1 at 94-101; 2 at 93-100.  Petitioners further claim that the entity “did not inquire about any past adverse legal or criminal conduct associated with the applicant.”  P. Br. at 1; see CMS Exs. 1 at 94-97, 136-137; 2 at 93-96, 135-136.  Regardless of whether the third party asked whether Ms. Dobbin had a felony conviction, Petitioners do not dispute that, by retaining the services of the third-party credentialing company to file applications on their behalf, they caused the enrollment applications that did not contain accurate information to be filed.  Accepting, for the sake of this discussion, that the credentialing company signed the enrollment applications on Petitioners’ behalf,  the evidence demonstrates that Petitioners “authorized [the third party] to sign applications on [their] behalf by placing [a] signature inside the 3 boxes below.”⁹  CMS Exs. 1 at 100; 2 at 99.  In a nutshell, Petitioners, by providing template signatures and authorizing the third-party credentialing company to sign applications on their behalf, essentially signed blank enrollment applications without reviewing their content and accuracy.  Petitioners do not claim that the third party was not authorized to sign and file their enrollment applications, nor is there evidence that the third party signed and filed the applications without the explicit consent of Petitioners.  Petitioners authorized the filing of the enrollment applications and are responsible for the inclusion of any false or misleading information within the applications.  See Brenda Lee Jackson, DAB No. 2903 at 11 (2018) (“Petitioner, not the independent contractor, was duty bound to understand what she was causing the credentialing company to submit on her behalf to Medicare, and she authorized its submission by signing the application despite its omission of pertinent adverse legal actions.”). 

Petitioners’ failure to ensure Ms. Dobbin’s felony conviction within the preceding 10 years was reported resulted in false information being provided on the enrollment applications (i.e., that Ms. Dobbin did not have a felony conviction within the preceding 10 years).  See, e.g., Sandra E. Johnson, CRNA, DAB No. 2708 at 14 (2016) (“[I]t is ultimately immaterial whether [the petitioner] actually completed the 855I forms herself,

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or, someone else completed the forms for [the petitioner] and intentionally or negligently omitted information about the negative licensing history from the forms.  Nor is it relevant whether a billing person did or did not provide [the petitioner] an opportunity to review the forms before they were filed or inform [the petitioner] when or how the forms would be filed. . . .”).  Therefore, CMS was authorized to revoke enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4). 

Petitioners have not offered any basis to challenge CMS’s refusal to exercise its discretion.  

Petitioners acknowledge that I cannot review CMS’s exercise of discretion, stating that  “this is actually a futile process and [the] only actual chance of relief is through the court system.”  P. Br. at 9-10.  Petitioners further stated that they are “required however to complete this lengthy process prior to being able to seek justice from the courts.”  P. Br. at 9-10. 

I reiterate that my role in this matter is limited, and I am not empowered to reverse CMS’s determination for equitable reasons.  I recognize Ms. Dobbin’s claims that she cooperated extensively with law enforcement,¹⁰ has made a considerable effort to rehabilitate since engaging in felonious conduct, and has served her community, but I cannot second-guess CMS’s unwillingness to exercise its discretion so long as CMS had a legitimate basis for its revocation action.  See Linda Silva, P.A., DAB No. 2966 at 12 (2019) (“Neither CMS’s enrollment regulations (in 42 C.F.R. Part 424) nor the administrative appeal regulations (in 42 C.F.R. Part 498) authorize an administrative law judge or the [DAB] to mitigate the consequences of a valid and binding revocation determination.”).  Ms. Dobbin has a felony conviction that is per se detrimental to the best interests of the Medicare program and its beneficiaries, and therefore, CMS was authorized to revoke her enrollment.  42 C.F.R. § 424.535(a)(3).  Ms. Dobbin, after her felony conviction, obtained an advanced nursing degree and nurse practitioner licensure.  See P. Br. at 4.  While such achievements are commendable, Ms. Dobbin pursued her

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advanced studies and licensure at the risk that she would not be allowed to participate in the Medicare program.  Further, by not disclosing this felony conviction to the Medicare program, Petitioners offered CMS a separate and distinct basis to bar their enrollment in the Medicare program.¹¹ 

Petitioners also claim that CMS should have exercised its discretion because they practice in a health professional shortage area and serve a medically underserved population.  P. Br at 7-8; see CMS Exs. 1 at 102-117; 2 at 101-116.  In its reconsidered determination, CMS “confirmed that there is no shortage of nurse practitioners in the geographic area where [Petitioners] practice.”  CMS Exs. 1 at 6; 2 at 6.  Even if there was a shortage of nurse practitioners, Petitioners have not identified any authority requiring CMS to enroll a supplier it has determined is not a trustworthy partner in the Medicare program.  See CMS Exs. 1 at 6; 2 at 6 (“Ms. Dobbin’s behavior calls into question [Petitioners’] ability to be a trustworthy and reliable partner in the Medicare program.”). 

Finally, I cannot review Petitioners’ claim that CMS violated their constitutional rights.  See P. Br. at 8-9.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground, even a constitutional one.”). 

Because CMS had a legitimate basis to revoke Petitioners’ Medicare enrollment and billing privileges, I uphold CMS’s determination. 

I cannot review the length of a bar to re-enrollment. 

Pursuant to 42 C.F.R. § 424.535(c), CMS is authorized to impose a bar to reenrollment of up to ten years when it has revoked a supplier’s enrollment.  In its reconsidered determination, CMS upheld the ten-year bar to reenrollment.  CMS Ex. 8 at 5.  The DAB has unambiguously explained that such a matter is beyond the scope of an ALJ’s review, stating:  

A decision by CMS or its contractor about how long to bar a revoked supplier from re-enrolling in Medicare, unlike the determination to revoke the supplier’s billing privileges, is not an appealable “initial determination” under 42 C.F.R. Part 498.  Blossomwood Medical, P.C., et al., DAB No. 2914, at

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11 (2018); Vijendra Dave, M.D. DAB No. 2672] at 8-11 [(2016)] (stating that the authority of an ALJ or the Board in a revocation appeal “does not extend to reviewing the length of the reenrollment bar imposed by CMS”).  We therefore cannot consider or act upon Petitioner’s contention that the three-year re-enrollment bar was excessive in her circumstances.  

Linda Silva, P.A., DAB No. 2966 at 11.  Petitioners have not identified any legal error in CMS’s imposition of the reenrollment bar, and I may not otherwise review the duration of the reenrollment bar.  See Vijendra Dave, M.D., DAB No. 2672 at 11 (2016) (“CMS’s determination regarding the duration of the re-enrollment bar is not reviewable.”). 

NGS and CMS were authorized to place Petitioners on its Preclusion List. 

Based on its consideration of the regulatory factors set forth in 42 C.F.R. §§ 422.2 and 423.100, CMS had a legitimate basis to uphold Petitioners’ placement on the Preclusion List.  CMS upheld Ms. Dobbin’s placement on the preclusion list based on both the revocation for her felony conviction and the revocation based on her failure to report the felony conviction on her enrollment application, and it upheld the practice’s inclusion on the Preclusion List based on the revocation of the practice’s enrollment for failing to report Ms. Dobbin’s felony conviction on its enrollment application.  CMS Exs. 1 at 7-10; 2 at 7-9. 

Petitioners did not challenge their inclusion on the Preclusion List based on their revocation under 42 C.F.R. § 424.535(a)(4).  Request for Hearing; P. Br.  In the absence of any argument that CMS erred in placing Petitioners on the Preclusion List based on its determinations that Petitioners’ revocation pursuant to 42 C.F.R. § 424.535(a)(4) was detrimental to the Medicare program, Petitioners have offered no basis to disturb CMS’s determinations.  Request for Hearing; P. Br.; see CMS Exs. 1 at 9 (discussing that inclusion on the Preclusion List is warranted based, in part, on “Ms. Dobbin’s failure to report her conviction on her Medicare enrollment application presented a significant program integrity risk”); 2 at 8 (similar discussion regarding the practice). 

With respect to the basis for inclusion on the Preclusion List that is the subject of Petitioners’ brief (i.e., Ms. Dobbin’s inclusion on the Preclusion List based on her enrollment revocation pursuant to 42 C.F.R. § 424.535(a)(3)), Petitioners did not address the specific factors addressed by CMS in its discussion.¹²  Nor did Petitioners identify

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any error in CMS’s determination that Ms. Dobbin should be placed on the Preclusion List.  See 42 C.F.R. §§ 422.2, 423.100. 

After determining that Ms. Dobbin’s enrollment had been revoked pursuant to 42 C.F.R. § 424.535(a)(3), CMS, pursuant to 42 C.F.R. §§ 422.2 and 423.100, considered the factors of severity, when the offense occurred, and any other information it deems relevant to its determination.  Addressing the first factor of the severity of the offense, CMS “consider[ed] the felony offense of Bank Fraud to be a very serious offense,” explaining that Ms. Dobbin “knowingly and willingly engaged in a scheme to defraud mortgage lenders.”  CMS Ex. 1 at 8.  CMS determined that this conduct was “extremely severe,” as evidenced, in part, by the district court’s order that she pay more than $4 million in restitution.  Id. 

In assessing the second factor, CMS acknowledged that Ms. Dobbin’s criminal activity occurred “over 16 years ago.”  CMS Ex. 1 at 8.  However, CMS determined “this factor alone is not dispositive of CMS’ determination.”  CMS Ex. 1 at 8. 

As for the third factor, CMS explained that it had already determined Ms. Dobbin’s offense was per se detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 1 at 8.  CMS determined that Ms. Dobbin’s conduct “negatively affects the integrity of the Medicare program” and her actions “jeopardize public confidence in Medicare providers and suppliers.”  CMS Ex. 1 at 8.  

Based on its consideration of the regulatory factors set forth in 42 C.F.R. §§ 422.2 and 423.100, CMS demonstrated a legitimate basis to uphold Ms. Dobbin’s placement on the Preclusion List.  

V. Conclusion

I affirm the revocation of Petitioners’ Medicare enrollment and billing privileges and placement on CMS’s Preclusion List. 

Endnotes

¹  Although CMS stated that NGS approved Petitioners’ enrollment applications, it did not support this statement with a citation to the evidentiary record.  CMS Br. at 6.  

²  Petitioners, through their former counsel, filed separate requests for hearing that were separately docketed.  On April 28, 2023, I granted Petitioners’ request that the cases be consolidated.  After Petitioners’ counsel withdrew from representation, Petitioners opted to proceed pro se.  

³  In contravention of my standing pre-hearing order, CMS filed two exhibits containing a combined 16 documents that should have been filed as separate exhibits.  See § 9(e) (“Each document must be filed as a separate exhibit and uploaded as a separate exhibit in the DAB E-File system, and multiple documents should not be submitted as a single exhibit.”).  Only because this noncompliance was discovered after Petitioners had filed their pre-hearing exchange, I did not reject CMS’s pre-hearing exchange and order re-filing.  While CMS may have found it more convenient to file only two exhibits, its failure to adhere to clear procedures needlessly encumbered the time and resources of this tribunal. 

⁴  Petitioners’ brief, to a large extent, is a regurgitation of verbatim passages from the requests for reconsideration.  Compare P. Br. with CMS Exs. 1 at 13-22; 2 at 12-21. 

⁵  As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS’s motion for summary judgment. 

⁶  My findings of fact and conclusions of law are in bold and italics. 

⁷  The reconsidered determinations explained that Ms. Dobbin was placed on the Preclusion List pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6) (CMS Ex. 1 at 27), whereas the practice was placed on the Preclusion List pursuant to 42 C.F.R. § 422.2.  CMS Ex. 2 at 8. 

⁸  The supporting evidence indicates that the third party requested that Petitioners create an account to file an enrollment application through the Provider Enrollment, Chain, and Ownership System (PECOS) and that the User ID and password be provided to the third party.  CMS Exs. 1 at 101; 2 at 100.  The documentation indicates, with respect to applications submitted to insurance companies, the third party requested that the client “authorize [the third party] to sign applications on your behalf by placing [the client’s] signature inside the 3 boxes below.”  CMS Exs. 1 at 100; 2 at 99.  It is unclear on the face of the documentation whether this request applied to Medicare enrollment applications. 

⁹  The documentation includes a page with three large boxes that fill nearly the entire page, with the aforementioned instruction that a signature be placed in each of those boxes.  CMS Exs. 1 at 100; 2 at 99. 

¹⁰  To the extent Ms. Dobbin’s cooperation delayed the imposition of judgment, it also spared her from a potentially lengthy prison sentence.  See CMS Exs. 1 at 52; 2 at 51 (“Government’s Position Paper as to Sentencing Factors,” filed October 4, 2019, stating, “[D]efendant provided full cooperation, for which the government will make a motion pursuant to U.S.S.G. § 5K1.1.”).  I reject any suggestion that Ms. Dobbin, who did not become a licensed nurse practitioner until more than two years after her felony conviction, was harmed by her cooperation.  See P. Br. at 3 (“[T]his cooperation significantly extended Ms. Dobbin’s involvement in the case, which meant that her own plea agreement and conviction were also significantly delayed until years after the offense at issue.”). 

¹¹  I note that had Petitioners disclosed Ms. Dobbin’s felony conviction on their enrollment applications, NGS may not have approved the applications.  See CMS Exs. 1 at 138; 2 at 137 (notices stating that CMS “has been made aware” of the felony conviction for bank fraud). 

¹²  To the extent Petitioners reference an Inspector General exclusion regulation, 42 C.F.R. § 1001.101, this authority is irrelevant to enrollment and preclusion matters.  See P. Br. at 9.