Oduah Daniel Osaro, M.D., DAB CR6385 (2023)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke the Medicare participation of Petitioner, Oduah Daniel Osaro, and to place him on the Preclusion List.

I.    Background

This case was reassigned to me recently.  I have reviewed the record and find that the parties have completed their pre-hearing exchanges.

CMS moved for summary judgment, contending that there are no disputed issues of material fact.  Although I agree with CMS that there are no material facts in dispute, it is unnecessary that I decide whether all the criteria for summary judgment are met.  That is because neither CMS nor Petitioner offered witness testimony.  Consequently, there is no need for an in-person evidentiary hearing.  This case is ripe for decision based on the parties’ written exchanges of arguments and evidence.

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With its exchange CMS filed exhibits that are identified as CMS Ex. 1 – CMS Ex. 15.  Petitioner filed exhibits that are identified as P. Ex. 1 – P. Ex. 12.1  I receive these exhibits into the record.

II.    Issues, Findings of Fact and Conclusions of Law

A.    Issues

The issues are whether CMS may revoke Petitioner’s participation in Medicare and place him on the Preclusion List.

B.    Findings of Fact and Conclusions of Law

Petitioner is a physician and has been enrolled as a supplier of Medicare services.  CMS revoked Petitioner’s Medicare participation on the authority of 42 C.F.R. § 424.535(a)(12).  This section authorizes revocation of a supplier’s participation where that supplier’s participation in a State Medicaid program has been revoked, terminated, or otherwise barred.

Additionally, CMS put Petitioner on its Preclusion List, an action that effectively bars him from receiving reimbursement for services provided for or on behalf of any federally funded healthcare program.  In doing so, CMS relied on 42 C.F.R. § 422.2.  This section authorizes placing an individual on the Preclusion List, with exceptions that do not on their face apply here, if that individual’s Medicare participation is currently revoked, if the individual is currently under a reenrollment bar, and if CMS determines that the underlying conduct that led to revocation of that individual’s participation is detrimental to the best interests of the Medicare program.2

The evidence unequivocally supports CMS’s determinations.

Petitioner is the sole owner, authorized official, and managing employee of an entity known as Clinton Urgent Care PLC (Clinton).  CMS Ex. 1 at 3-4; CMS Ex. 12 at 2; CMS Ex. 13; CMS Ex. 14.  In May 2013, the Iowa Department of Human Services (State agency) terminated Petitioner’s participation in the Iowa Medicaid program, finding that Petitioner had violated both state requirements and federal law.  CMS Ex. 1 at 3; CMS Ex. 8.  The basis for termination of participation was that Petitioner had unlawfully taken cash payments from Medicaid recipients.  Id.  Subsequently, CMS revoked Petitioner’s Medicare participation.  CMS Ex. 1 at 3.3

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On November 9, 2021, the State agency terminated Clinton’s participation in the Iowa Medicaid program, effective immediately.  CMS Ex. 9.  The reason for termination was that Clinton had received $76,111.03 as reimbursement for claims for Medicaid services, services that in fact had been provided by Petitioner.  Id.  The State agency found that Petitioner had been billing for his services under Clinton’s provider number as a means of circumventing his termination from participation in the Iowa Medicaid program.  Id.

Clinton no longer has appeal rights from the Iowa State agency’s determination and that determination now is administratively final.

On June 4, 2022, CMS revoked Petitioner’s Medicare participation.  CMS Ex. 3 at 2.  Additionally, CMS imposed a five-year reenrollment bar and placed Petitioner on the Preclusion List.  Petitioner requested reconsideration of CMS’s determination.  The determination was upheld on reconsideration and Petitioner then requested a hearing.

The evidence establishes Petitioner to be an individual whose participation in the Iowa Medicaid program has been revoked, terminated, or otherwise barred, as is described by 42 C.F.R. § 424.535(a)(12).  It is not disputed that Petitioner is Clinton’s sole owner, authorized official, and manager.  No other individual bears responsibility for the services that Clinton provides.  Any services that Clinton purportedly provides are services provided by Respondent under another name.  Therefore, Petitioner is not just Clinton’s proprietor, but he is Clinton for all practical purposes.

CMS may revoke a supplier’s participation on the authority of 42 C.F.R. § 424.535(a)(12) based on factors that include:  (A) the reasons for that supplier’s termination from a State Medicaid program; (B) whether the supplier is currently terminated, revoked or barred from more than one program; and (C) any other information that CMS deems to be relevant.  42 C.F.R. § 424.535(a)(12)(i)(A)-(C).  In this case, evidence relating to factors A and C amply supports CMS’s determination because it establishes Petitioner to be untrustworthy to provide care to Medicaid recipients and Medicare beneficiaries.

The evidence not only establishes that Petitioner unlawfully billed Medicaid recipients for services for which they were not required to pay but also engaged in a subterfuge to continue doing so after he’d been caught in the act.  Petitioner deliberately circumvented the termination of his Medicaid billing privileges by billing for Medicaid services under another name and by continuing to unlawfully extract money from recipients. The amount of his unlawful gains – at least $76 thousand – was substantial.  Moreover, it constitutes money taken unlawfully from Iowa’s poorest residents, individuals who, by

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definition, were unable to purchase medical services from their own income and resources.

There is additional evidence that establishes Petitioner to be untrustworthy.  In 2014 the Iowa State Board of Medicine found that Petitioner had engaged in unprofessional conduct and had violated laws governing the practice of medicine.  CMS Ex. 9.

This evidence also amply supports CMS’s determination to place Petitioner on the Preclusion List.  Petitioner’s Medicare participation is currently revoked.  He is subject to a reenrollment bar.  CMS Ex. 1 at 6.  Finally, the evidence relating to Petitioner’s efforts to continue unlawfully claiming reimbursement for Medicaid services and extract cash payments from program recipients establishes Petitioner to be so untrustworthy that placing him on the Preclusion List would be in the best interests of the Medicare program.  42 C.F.R. § 422.2(1)(i)-(iii)(A)-(C).

I have considered Petitioner’s contentions and arguments.  I find them to be without merit.

Petitioner has not offered evidence that refutes that which I rely on to establish the facts of this case.  Instead, he makes arguments that are equitable in character.  He asserts that he has provided services to drug addicts, disabled veterans, and Medicaid recipients, without receiving complaints from these patients.  He contends that it would be unjust and cruel to deprive these persons of his services.  Motion for Reversal of CMS Revocation of Oduah Osaro/Clinton Urgent Care PLC’s Medicare Enrollment and CMS Preclusion List Dated January 5, 2023 (Petitioner’s brief) at 3.

I have no authority to hear and decide this argument.  I may not overturn on equitable grounds a legally valid determination by CMS.  Foot Specialists of Northridge, DAB No. 2773 at 17 (2017).

Petitioner also seems to assert that he was able to contract to provide services for various entities (“Total Care” and “Amerihealth”) even after his Medicaid participation in Iowa was terminated.  Petitioner’s brief at 3.  From this he seems to be contending that these contractual relationships somehow justified his continued billing for Medicaid services via Clinton as well as his continued practice of extracting cash payments from Medicaid recipients.

I fail to see the relevance of Petitioner’s other contractual relationships to the issues before me.  Whatever Petitioner may have done on behalf of other entities it does not gainsay the conduct that justifies CMS’s determination to revoke his Medicare billing privileges and to place him on the Preclusion List.

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Petitioner also argues that the State of Iowa resolved a fraud investigation against Petitioner without imposing additional sanctions against him.  Petitioner’s brief at 4; see P. Ex. 9.  That may be so, but it does not address the basis for Clinton’s termination from participation in the Iowa Medicaid program, nor does it address CMS’s reasons for revoking Petitioner’s Medicare billing privileges or putting him on the Preclusion List.