Thomas Bailey, M.D. , CR6318 (2023)

DECISION

The Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor, CGS Administrators, LLC (CGS), revoked the Medicare enrollment and billing privileges of Petitioner, Thomas Bailey, M.D., pursuant to 42 C.F.R. § 424.535(a)(3).  Subsequently, CMS placed Petitioner on its preclusion list.  See 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.100(c)(6).  Petitioner challenges both the revocation of his enrollment and billing privileges, and his placement on CMS’s preclusion list.  For the reasons discussed below, I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing, effective October 1, 2019.  There is a legal basis for listing Petitioner on CMS’s preclusion list. 

I.    Procedural History

Petitioner, Thomas Bailey, M.D., is a physician licensed to practice medicine in Ohio.  On October 1, 2019, the United States District Court for the Northern District of Ohio accepted Petitioner’s guilty plea for one felony count of dispensing controlled substances,

Page 2

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(E).  CMS Exhibit (Ex.) 5 at 1.  Petitioner was sentenced to two years of probation and ordered to pay a $5,000 fine and a $100 assessment.  Id. at 2, 5-6. 

On February 12, 2020, the State Medical Board of Ohio (State Board) suspended Petitioner’s medical license.  On October 14, 2020, Petitioner and the State Board entered into a Consent Agreement, in which the State Board publicly reprimanded Petitioner for his conduct, ordered Petitioner to pay a $9,000 fine, and terminated the suspension of his medical license.  CMS Ex. 9 at 2 (reprimand and termination of license suspension), 3 (fine), 4-5 (effective date of consent agreement). 

On December 22, 2020, CGS notified Petitioner by letter that it had revoked his Medicare enrollment and billing privileges, effective October 1, 2019.  CMS Ex. 3 at 1.  CGS explained that Petitioner’s Medicare privileges were being revoked pursuant to 42 C.F.R. § 424.535(a)(3), because of Petitioner’s October 1, 2019 felony conviction for dispensing controlled substances.  Id.  CGS also informed Petitioner that he was being added to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  Id.  CGS also informed Petitioner he would be barred from re-enrolling in the Medicare program for ten years, effective through October 2, 2029.  Id. at 3.  Petitioner timely filed a request for reconsideration.  CMS Ex. 2.  On May 6, 2021, CMS issued a reconsidered determination upholding Petitioner’s revocation, ten-year reenrollment bar, and inclusion on CMS’s preclusion list.  CMS Ex. 1. 

Petitioner timely requested a hearing (RFH) before an administrative law judge (ALJ).  The revocation hearing request was docketed as C-21-882 and I was designated to hear and decide this case.  On July 2, 2021, I issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing Order) in which I instructed the parties to file pre-hearing exchanges.  CMS filed a motion for summary judgment and brief (CMS Br.), as well as 11 proposed exhibits (CMS Exs. 1-11) on August 6, 2021.  Petitioner filed a brief opposing summary judgment (P. Br.) and identified himself as a witness on September 10, 2021.  Petitioner did not offer any exhibits.  CMS filed a notice waiving its reply to Petitioner’s brief opposing summary judgment on September 27, 2021. 

II.    Jurisdiction

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

III.    Issues

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) due to Petitioner’s felony conviction for dispensing controlled substances; and

Page 3

Whether CMS had a legitimate basis to place Petitioner on its preclusion list, as defined at 42 C.F.R. §§ 422.2 and 423.100. 

IV.    Exhibits and Decision on the Record

Petitioner did not offer any exhibits and did not object to CMS’s proposed exhibits.  I therefore admit CMS Exs. 1-11 into the record. 

Petitioner proposed himself as the sole witness, but he did not summarize the oral testimony he intends to provide at a hearing as required per my standing order.  Standing Order § 5(e)(iv).  This alone is sufficient to not proceed with an oral hearing. Moreover, Petitioner has not identified any material fact in dispute for which oral testimony from Petitioner would be relevant and material to rebutting CMS’s basis for revocation, application of a reenrollment bar, and addition to the preclusion list.  As a result, Petitioner’s testimony at an oral hearing would not impact the disposition of this case.  Standing Order § 13; Civ. Remedies Div. P. § 19(d). 

CMS did not propose any witnesses.  Consequently, I will not hold an in-person hearing in this matter, and I issue this decision based on the written record.  Civ. Remedies Div. P. § 19(d).  

V.    Findings of Fact, Conclusions of Law, and Analysis¹ 

1. On October 1, 2019, Petitioner entered a guilty plea to a felony charge of dispensing controlled substances, which was accepted by the trial judge. 
2. Petitioner’s felony conviction is for an offense that would result in mandatory exclusion under section 1128(a) of the Social Security Act (Act). 
3. An offense listed in 42 C.F.R. § 424.535(a)(3)(ii)(D) has been determined by CMS to be per se detrimental to the best interests of the Medicare program and its beneficiaries. 
4. CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) due to Petitioner’s felony conviction for dispensing controlled substances. 

Page 4

5. CMS correctly determined the effective date of the revocation should be October 1, 2019, the date of Petitioner’s conviction. 

Petitioner is a “supplier” for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 410.20(b)(1).  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. 

The Secretary of the Department of Health and Human Services (Secretary) has the authority to terminate a Medicare agreement if a physician or supplier has been convicted of a felony offense that the Secretary has determined is detrimental to the best interests of the program or its beneficiaries: 

The Secretary may refuse to enter into an agreement with a physician or supplier under this subsection, or may terminate or refuse to renew such agreement, in the event that such a physician or supplier has been convicted of a felony under Federal or State law for an offense which the Secretary determines is detrimental to the best interests of the program or program beneficiaries.  

P.L. 105-33 (Aug. 5, 1997), Section 4302; 42 U.S.C. § 1395u(h) (emphasis supplied).  Congress has also given the Secretary the broad authority to “make and publish such rules and regulations . . . as may be necessary to the efficient administration of the functions with which [he] is charged under the Act.”  42 U.S.C. § 1302(a).  The Secretary was therefore authorized to implement rulemaking, through 42 C.F.R. § 424.535(a)(3), that identifies the types of offenses CMS has determined are detrimental to the best interests of the Medicare program and its beneficiaries.  

CMS may revoke a supplier’s enrollment and billing privileges for any reason stated in 42 C.F.R. § 424.535(a).  CMS explicitly has determined that four categories of felony offenses are per se detrimental to the best interests of the Medicare program and its beneficiaries, and CMS may revoke a supplier’s billing privileges and supplier agreement if the supplier was convicted in the previous 10 years.  42 C.F.R. § 424.535(a)(3)(i)-(ii).  Petitioner’s offense falls within one of the four categories, because the same felony conviction would have resulted in exclusion under 42 U.S.C. § 1320a-7(a)(4).  See 42 C.F.R. § 424.535(a)(3)(ii)(D) (“Any felonies that would result in mandatory exclusion under section 1128(a) of the [Social Security] Act”). 

A mandatory exclusion from all federal health care programs, as referenced above, is set forth in section 1128(a)(4) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(a)(4), which states: 

(a) Mandatory exclusion

Page 5

The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1320a-7b(f) of this title):  

* * * *

(4) Felony conviction relating to controlled substance

Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

In the present case, to determine whether an offense is per se detrimental to the best interests of the Medicare program and its beneficiaries, I only need to look to the nature of Petitioner’s felony conviction and determine whether the felony conviction is for the type of criminal offense that would subject an individual to mandatory exclusion by the Office of Inspector General (IG) pursuant to section 1128(a) of the Act.  

Pursuant to section 1128(a)(4) of the Act, a mandatory exclusion is warranted if an individual has a felony conviction relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  42 U.S.C. § 1320a-7(a)(4).  On October 1, 2019, Petitioner entered a guilty plea for violation of Title 21, United States Code, Section 841(a)(1), (b)(1)(E), and Title 18, United States Code, Section 2.  CMS Ex. 7 at 8-9, 51.  The Secretary’s implementing regulations state that section 1128(a)(4) applies to anyone who “[i]s, or has ever been, a health care practitioner, provider, or supplier,” or “[i]s, or has ever been, employed in any capacity in the health care industry.”  42 C.F.R. § 1001.101(d)(1), (3).  

Though it is not necessary for Petitioner to have been excluded under section 1128(a) of the Act to determine that the felony would result in mandatory exclusion, here Petitioner was, in fact, excluded under 1128(a) due to the same felony conviction.  CMS Ex. 10 at 1.  On January 29, 2021, the IG excluded Petitioner from participation in Medicare, Medicaid, and all Federal health care programs for the minimum statutory period of five years as a result of Petitioner’s October 1, 2019 felony conviction of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Id. 

Petitioner admitted that he knowingly dispensed over 3,000 units of buprenorphine (Suboxone), a Schedule III controlled substance, without being separately registered as a narcotic treatment program or certified as a Drug Addiction Treatment Act (DATA) 2000

Page 6

physician, in violation of the Controlled Substances Act.  CMS Ex. 7 at 28-29, 44-45, 51.  The court accepted Petitioner’s guilty plea.  CMS Ex. 7 at 52.  At the time of Petitioner’s guilty plea, he understood that his conviction would likely result in “an automatic exclusion of him from certain federal programs, such as the ability to be reimbursed for billings to Medicaid or Medicare, and that’s likely to have significant potential effects on his ability to practice in certain places.”  Id. at 40-41. 

However, Petitioner also argues that his actions do not constitute a crime of dishonesty which would call his trustworthiness as a supplier into question.  P. Br. at 1.  Petitioner blames his employer for failing “to change the procedure it followed under [Petitioner’s] predecessor who had a valid DATA waiver resulting in the errors that led to [Petitioner’s] conviction.”  Id.  Petitioner also argues that he should receive special consideration, because his patients were approved to receive the controlled substances that he prescribed, there was no diversion of controlled substances, and there was no loss to the government.  CMS Ex. 1 at 2-3.  Finally, Petitioner argues CMS should have exercised its discretion not to revoke his Medicare enrollment and billing privileges based on the unique circumstances of this case.  Id. at 3. 

If the felony offense upon which the revocation is based is one that CMS has identified in the regulation as categorically detrimental to Medicare, then an ALJ or the Board must conclude that the offense is detrimental to Medicare and may not make a conflicting case-specific finding.  Cornelius M. Donohue, DPM, DAB No. 2888 at 6 (2018) (rejecting the complaint that CMS failed to make a case-specific determination about whether the supplier’s financial crime was detrimental to Medicare, because financial crimes are detrimental as a matter of law); see also John Hartman, D.O., DAB No. 2564 at 5 (2014) (holding that “the Board may not evaluate the circumstances of [the supplier’s] offense, or otherwise look behind his conviction, in order to make a conflicting determination about the offense’s actual or potential impact on the Medicare program”); John A. Hartman, D.O., DAB No. 2911 at 14-15 (2018) (holding, in a case involving a section 424.530(a)(3) enrollment denial, that the ALJ was not required to make a case-specific determination about whether the physician’s felony offense was detrimental to Medicare, because the offense was one that fell within one of the categories of crimes that CMS has determined by rulemaking to be detrimental to Medicare). 

“[W]hen reviewing a Medicare enrollment revocation, the Board and its ALJs are limited to deciding whether the regulatory prerequisites for revocation have been satisfied.”  Donohue, DAB No. 2888 at 10.  If the relevant regulatory conditions for revoking the supplier are met, as they are here, “then we must sustain the revocation and may not substitute our discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.”  Id. (internal quotation marks omitted).  “In other words, we must sustain a revocation that is lawful under the applicable regulations regardless of other factors,” such as the financial impact of the revocation on the supplier, “that CMS might reasonably have weighed in exercising its discretion about whether or not to

Page 7

revoke.”  Id. (internal quotation marks omitted); see also Vital Care Med. Transp., LLC, DAB No. 2930 at 8 (2019) (the Board “has no authority to modify, rescind, or direct CMS to reconsider a revocation based on mitigating circumstances”); Meadowmere Emergency Physicians, PLLC, DAB No. 2881 at 8-9 (2018) (“ALJs and the Board may not substitute their discretion for that of CMS in determining whether revocation is appropriate under all the circumstances” (internal quotation marks and brackets omitted)); Vital Care Med. Transp., LLC, DAB No. 2930 at 8 (2019) (the Board “has no authority to modify, rescind, or direct CMS to reconsider a revocation based on mitigating circumstances”).  

CMS argues it considered the unique circumstances of Petitioner’s case, but ultimately determined that because Petitioner’s felony conviction for dispensing controlled substances resulted in mandatory exclusion by the IG, which is per se detrimental to the best interests of the Medicare program and its beneficiaries, revocation was warranted.  CMS Br. at 4, 7.  In instances of per se felonies, I do not have the authority to review the revocation to determine whether CMS reasonably concluded that the specific facts and circumstances of the felony are detrimental to the best interests of the Medicare program and its beneficiaries.  CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) due to Petitioner’s October 1, 2019 felony conviction for dispensing controlled substances.  I also conclude that CMS properly determined the effective date of the revocation was the date of Petitioner’s conviction. 

6. The ten-year reenrollment bar is not reviewable based on current Board decisions. 

Petitioner argues that CMS exceeded its authority, ruling based on incorrect facts and finding multiple aggravating conditions to impose a ten-year reenrollment bar.  P. Br. at 2.  Petitioner requests that I review CMS’s determination that his conduct warrants a ten-year reenrollment bar.  Id. 

With respect to appeals under Part 498, the Board has held that ALJs and the Board may only review issues specifically identified as appealable administrative actions (i.e., “initial determinations”) in section 498.3(b).  Vijendra Dave, M.D., DAB No. 2672 at 10-11 (2016); Willie Goffney, Jr., M.D., DAB No. 2763 at 4 (2017) (explaining that the reconsidered determination appealed by the supplier “sets the parameters of the issues before the ALJ (and the Board)”), aff’d, Goffney v. Azar, No. 2:17-cv-08032 (C.D. Cal. Sept. 25, 2019).    The Board held specifically in Vijendra Dave that CMS’s determination of the length of the reenrollment bar under section 498.535(c) is not subject to review.  Vijendra Dave, M.D., DAB No. 2672 at 10-11.²   The Board explained:

Page 8

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

Id. at 10. 

While CMS has not substantiated why a 10-year reenrollment bar is warranted in this case, the law does not obligate CMS to make such a substantiation at this tribunal as the length of CMS’s reenrollment bar is not presently reviewable. 

7. Petitioner’s equitable arguments are not reviewable. 

Petitioner argued in his request for reconsideration and in his pre-hearing brief that the ten-year reenrollment bar is too severe, has caused financial hardship to Petitioner, and should be reduced to the same length of his exclusion by the IG, which was the regulatory minimum of five years.  CMS Ex. 2 at 3; P. Br. at 2. 

As discussed in Section V(1)-(5), supra, I may not review CMS’s exercise of discretion here.  Cornelius M. Donohue, DPM, DAB No. 2888 at 10; see also Vital Care Med. Transp., LLC, DAB No. 2930 at 8 (the Board “has no authority to modify, rescind, or direct CMS to reconsider a revocation based on mitigating circumstances”); Meadowmere Emergency Physicians, PLLC, DAB No. 2881 at 8-9 (“ALJs and the Board may not substitute their discretion for that of CMS in determining whether revocation is appropriate under all the circumstances” (internal quotation marks and brackets omitted)).  

Rather, the Board has held that neither ALJs, nor the Board itself has authority to review CMS’s determination as to the length of a reenrollment bar if there was a discretionary legal basis for CMS to impose one.  Vijendra Dave, M.D., DAB No. 2672 at 11.  Therefore, because CMS had a legal basis for revoking Petitioner’s Medicare enrollment and billing privileges and imposing a reenrollment bar, I cannot under current Board case law order CMS to exercise its discretion and modify the reenrollment bar to end at the conclusion of Petitioner’s IG exclusion.  Even if I agree with Petitioner that CMS imposed a disproportionately long reenrollment bar when considering the severity of the basis for the revocation leading, in turn, to a disproportionately harsh outcome, I have no

Page 9

choice but to affirm the outcome where CMS had a legal basis to revoke Petitioner’s billing and enrollment privileges and to impose a reenrollment bar. 

8. CMS had a legitimate basis to include Petitioner on its preclusion list, as defined at 42 C.F.R. §§ 422.2 and 423.100. 

Effective June 15, 2018, the regulations permitted CMS to put an individual on a list of providers or suppliers who are precluded from reimbursement for health care items or services furnished under a Medicare Advantage benefit or from submitting pharmacy claims for prescription drug coverage under Medicare Part D, known as the CMS preclusion list.  42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6); 83 Fed. Reg. 16,440, 16,641-67 (Apr. 16, 2018).  CMS may add suppliers whose Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535, who are currently subject to a reenrollment bar under 42 C.F.R. § 424.535(c), and whose conduct that is the basis for revocation CMS determines is detrimental to the best interests of the Medicare program to the preclusion list.  In deciding whether conduct is detrimental to Medicare, CMS considers the seriousness of the conduct, the degree to which the conduct could affect the integrity of the Medicare program, and other evidence CMS considers relevant.  42 C.F.R. § 422.2, Preclusion list.  Suppliers may also be added to the preclusion list if CMS determines that their conduct would have provided a basis for revocation of Medicare enrollment and after consideration of the other factors listed above.  42 C.F.R. §§ 422.2, 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(i)(2)(v); 423.120(c)(6).  

In reviewing CMS’s decision to place a provider or supplier on the preclusion list, an ALJ is not permitted to re-weigh the factors set forth in 42 C.F.R. §§ 422.2 and 423.100.  Where the regulations have granted CMS discretion to determine whether a provider or supplier’s underlying conduct is detrimental to the Medicare program, the ALJ may not substitute their own judgment as to whether CMS properly exercised that discretion.  Brian K. Ellefsen, D.O., DAB No. 2626 at 7 (2015); see also Pa. Physicians, P.C., DAB No. 2980 at 13 (2019). 

The regulatory requirements for Petitioner’s inclusion on CMS’s preclusion list have been met.  42 C.F.R. § 422.2, Preclusion list.  At the time CMS made its preclusion list determination, Petitioner had been convicted of a felony within the previous 10 years that resulted in mandatory exclusion by the IG under section 1128(a) of the Act, which CMS has determined is per se detrimental to the best interests of the Medicare program, and CMS had imposed a reenrollment bar for 10 years.  CMS Ex. 1 at 4; 42 C.F.R. § 424.535(a)(3)(ii)(D).  CMS also met its regulatory obligation to consider whether the conduct underlying Petitioner’s revocation was detrimental to the best interests of the Medicare program by assessing the seriousness of that conduct, the degree to which that conduct could affect the integrity of the Medicare program, and any other information CMS deems relevant to its determination.  42 C.F.R. § 422.2, Preclusion list.  In its

Page 10

reconsidered determination, CMS explicitly weighed these factors for 42 C.F.R. § 424.535(a)(3), observing that: 

As it relates to factor (i), CMS considers the severity of the offense.  [Petitioner] claims that he did not divert any of the controlled substances and all the patients he dispensed controlled substances were approved to use them.  The Drug Addiction Treatment Act (DATA) permits physicians to treat narcotic dependence with controlled substances once they take the required training separate from the Drug Enforcement Agency (DEA) registration.  Only physicians who obtained the DATA waiver from the DEA can dispense these specific controlled substances and conduct maintenance and detoxification treatment.  Here, [Petitioner] did not have a DATA waiver from the DEA, but he still dispensed Suboxone in excess of 3,000 dosage units in 2017 (see Exhibit 5).  Moreover, [Petitioner] admits in his reconsideration request that he dispensed 3,104 dosage units of buprenorphine without proper authorization. 

CMS finds Dr. Bailey’s offense to be extremely severe in nature because he took advantage of his position to dispense controlled substances for use in maintenance and detoxification treatment without a DATA waiver.  This improper dispensing of controlled substances constitutes a misuse of his authority as a physician.  [Petitioner’s] actions call into question his ability and willingness to be a trustworthy partner in the Medicare program.  CMS is reliant on its partners to act with integrity to ensure that the services they render and the claims they submit comply with Medicare requirements. 

As it relates to factor (ii), CMS considers when the offense occurred.  [Petitioner’s] unlawful conduct occurred from April 1, 2016 until October 4, 2017.  Although the conduct is from several years ago, CMS finds [Petitioner’s] placement on the CMS Preclusion List to be appropriate given the severity of the felony conviction and the fact that it implicates [Petitioner’s] trustworthiness as a provider of services to Medicare beneficiaries. 

As it relates to factor (iii), CMS considers any other information relevant to its determination.  [Petitioner] claims that the Medical Board only reprimanded him, but it did not suspend him.  This assertion is incorrect because the Medical Board suspended [Petitioner’s] license to practice medicine on February 12, 2020 (see Exhibit 7).  [Petitioner’s] license remained suspended until he entered into a Consent Agreement with the Medical Board on October 14, 2020 (see Exhibit 8).  On that date, the Medical Board and [Petitioner] agreed that the suspension would be terminated and instead he would be publicly reprimanded.  

Page 11

CMS also finds it relevant that the OIG excluded [Petitioner] from Medicare, Medicaid, and all other federal health care programs due to his unlawful dispensing of controlled substances (see Exhibit 9).  By placing [Petitioner] on the CMS Preclusion List, CMS is protecting the Medicare Trust Funds from a doctor who prescribes controlled substances without being authorized to do so.  Due to the severity of the offense, CMS finds that that [Petitioner’s] felony conviction is detrimental to the best interests of the Medicare program and forms an[] appropriate basis to include him on the CMS Preclusion List. 

CMS Ex. 1 at 4-5. 

Petitioner does not dispute that he was convicted of a felony, that he was excluded by the IG under section 1128(a) of the Act, or that CMS determined the exclusion for his felony conviction is per se detrimental to the Medicare program and its beneficiaries.  See P. Br.; RFH.  However, Petitioner argues that CMS erred in determining that his conduct was detrimental to the best interests of the Medicare program.  P. Br. at 1-2; RFH at 1-2.  Petitioner argues that although he was convicted of knowingly and intentionally dispensing Suboxone without being registered as a narcotic treatment program or certified as a DATA 2000 physician, he should receive special consideration, because all of the patients were properly approved to use Suboxone, they received their medication, and there was no diversion or financial impact.  CMS Ex. 2 at 1-2.  Petitioner argues that his employer’s administrators failed to change the billing procedure from his predecessor, and that he simply continued treatment that had already been started.  Id. at 2.  Because Petitioner’s conduct was not fraudulent and did not bear on the quality of his medical care, he should not receive such a harsh penalty for a simple mistake involving registration and certification.  Id. at 2-3. 

Consistent with the discussion above, I find Petitioner’s arguments persuasive, but I am without authority under the current Board interpretation of the applicable regulations: an ALJ cannot reverse CMS's determination where CMS had a legal basis to exercise its discretion regardless of how unreasonable the duration.  At the time of his inclusion on CMS’s preclusion list, Petitioner had been convicted within the previous 10 years of a felony that resulted in mandatory exclusion by the IG under section 1128(a) of the Act, and CMS imposed a reenrollment bar.  CMS had deemed this conviction per se detrimental to the best interests of the Medicare program and its beneficiaries, regardless of the particular facts and circumstances of the felony at issue.  Therefore, CMS has a legal basis in concluding that Petitioner’s conduct was detrimental to the best interests of the Medicare program, and CMS had a legitimate basis for placing Petitioner on the preclusion list effective May 6, 2021, the date of the reconsidered determination. 

Page 12

VI.    Conclusion

For the foregoing reasons, I affirm CMS’s determination to revoke Petitioner’s Medicare billing and enrollment privileges under 42 C.F.R. § 424.535(a)(3), to impose a ten-year reenrollment bar, and to include Petitioner on its preclusion list. 

---

Endnotes

¹  My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis. 

²  Section 424.535(c)(1)(i) states “The reenrollment bar . . . lasts a minimum of 1 year, but not greater than 10 years . . . depending on the severity of the basis for revocation.”