Timothy Scott Sigman, M.D., DAB CR6445 (2024)

DECISION

Respondent, the Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor, First Coast Service Options, Inc. (First Coast), denied Petitioner Timothy Sigman’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(3) and further advised he would be placed on CMS’s preclusion list.  Petitioner challenges his placement on the preclusion list.  For the reasons discussed below, I affirm both actions.¹

I.  Background

Petitioner is a physician licensed to practice in Florida.  CMS Ex. 1 at 1-2.  On June 24, 2020, the Martin County, Florida Sheriff’s Office received reports of a man firing

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multiple rounds near a landscaping crew working in the vicinity of his home.  CMS Ex. 7 at 1; P. Ex. 2 at 10.  The foreman of the landscaping crew reported to investigating deputies that Petitioner had been yelling at them earlier in the day. CMS Ex. 7 at 1.  He stated hearing Petitioner’s glass patio door shatter and heard two or three gunshots coming from that direction.  CMS Ex. 7 at 1; P. Ex. 2 at 11.  Deputies entered Petitioner’s home and discovered a shattered glass door, what appeared to be a bullet hole in the blinds near the door, several spent and live shotgun shells, and a shotgun.  CMS Ex. 7 at 1.  They arrested Petitioner and held him at the Martin County jail.  CMS Ex. 7 at 2; P. Ex. 2 at 11.

On July 13, 2020, the state of Florida charged Petitioner by information with two felony counts of aggravated assault with a deadly weapon, one misdemeanor count of discharging a firearm in public, and one misdemeanor count of improper exhibition of a weapon, all violations of Florida state law.  CMS Ex. 4 at 1.  The information specified Petitioner threatened others with violence using a firearm, knowingly discharged a firearm in public or recklessly outdoors on residential property, and exhibited a weapon in a “rude, careless, angry or threatening manner.”  Id.

On October 30, 2020, Petitioner entered a plea of no contest² to the charges made against him.  CMS Ex. 5 at 1.  That same day, a Florida state court entered judgment against Petitioner pursuant to his plea.  CMS Ex. 6 at 1.  The court found Petitioner guilty of the misdemeanor counts and withheld adjudication of the felony counts.  Id.  It sentenced him to time served for the misdemeanor counts and three years’ probation for the felony counts.  Id. at 3.

Petitioner applied to enroll as a biller to the Medicare program on February 28, 2022.  CMS Ex. 2 at 2.  First Coast denied his enrollment application on April 18, 2022 pursuant to 42 C.F.R. § 424.530(a)(3), citing the October 30, 2020 judgment against him as a felony conviction detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 8 at 1.  First Coast also advised Petitioner he would be placed on CMS’s Preclusion List on the same basis.  Id.

Petitioner sought reconsideration of First Coast’s initial determination on February 1, 2023.³  CMS Ex. 9.  On July 31, 2023, CMS Hearing Officer Minisha Hicks issued a reconsidered determination affirming First Coast’s denial of his enrollment application and placement on the Preclusion List.  CMS Ex. 2.  Hearing Officer Hicks rejected

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Petitioner’s argument that his no-contest plea was not a conviction and found his conviction in the preceding 10 years was per se detrimental to the Medicare program because it fell into one of the enumerated categories CMS deemed through rule-making as such, specifically a crime against persons.  Id. at 3-4, citing 42 C.F.R. § 424.530(a)(3)(i)(A).  Hearing Officer Hicks otherwise found denial of Petitioner’s application warranted based on analysis of the facts and circumstances underlying Petitioner’s conviction which led her to find it was detrimental to the best interests of the Medicare program and its beneficiaries.  Id. at 4.  Hearing Officer Hicks also concluded it appropriate to place Petitioner on CMS’s Preclusion List.  Id. at 5.

Petitioner timely sought a hearing before an administrative law judge (ALJ) in the Civil Remedies Division, resulting in my designation to hear and decide this case.  On September 28, 2023, I issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing Order) requiring the parties to submit arguments and proposed exhibits and witnesses by dates certain.  Both parties sought and received extensions of time.⁴  CMS submitted its pre-hearing exchange and motion for summary judgment (CMS Br.) with ten proposed exhibits (CMS Exs. 1-10).  Petitioner filed a brief in response and three proposed exhibits (P. Exs. 1-3).

II.  Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  CMS Exhibits 1 through 10 and Petitioner’s Exhibits 1 through 3 are therefore admitted and entered into the record.

Neither party has identified witnesses to testify in this matter for whom the opposing party could request cross-examination.  Consequently, I will not hold an in‑person hearing in this matter, and issue this decision based on the written record.  Civ. R. Div. P. § 19(d).  CMS’s motion for summary judgment is denied as moot.

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III.  Issues

Whether CMS has a legitimate basis to deny Petitioner’s enrollment application seeking Medicare billing privileges under 42 C.F.R. § 424.530(a)(3);

Whether CMS had a legitimate basis to place Petitioners on its preclusion list.

IV.  Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2).

V.  Applicable Law

1. Enrollment Denial

As a physician, Petitioner is a supplier of health care services for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.20(b)(1).  To participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R §§ 424.505, 424.510.  CMS may deny a supplier’s enrollment application for Medicare billing privileges for any reason stated in 42 C.F.R § 424.530.  This includes the existence of a felony conviction:

(a)  Reasons for denial.  CMS may deny a . . . supplier’s enrollment in the Medicare program for the following reasons:

* * * *

(3)  Felonies.  The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 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.

(i)  Offenses include, but are not limited in scope or severity to-

(A) Felony crimes against persons, such as murder, rape, assault, 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. § 424.530(a)(3).

A felony offense specifically identified by the regulation as detrimental is considered detrimental per se, or as a matter of law.  42 C.F.R. 424.530(a)(3)(i); Letantia Bussell, M.D., DAB No. 2196 at 9 (2008).  I have no discretion to disregard CMS’s selection of felony offenses it has deemed per se detrimental via rule-making.  Bussell, DAB No. 2196 at 13 n.13 (“Once the Secretary . . . has exercised that authority by regulation as to a class of felonies, an ALJ cannot revisit that determination in an individual case where the conviction of an offense in the class is undisputed.”).

A felony offense not specifically listed in the regulations but similar to such an offense can also provide the basis for denial of enrollment; in that case, I must look to the circumstances surrounding the conviction to assess similarity.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 11 (2009), aff’d Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010) (affirming the ALJ’s consideration of facts and circumstances underlying the offense of conviction to assess its similarity to one of the financial crimes identified as per se detrimental).

Finally, even if a felony offense is not specifically listed or similar to those listed in the regulations, CMS may determine, on a case-by-case basis, that a felony conviction is detrimental to the best interests of the Medicare program and program beneficiaries.  Brenda Lee Jackson, DAB No. 2903 at 8 (2018); Fady Fayad, M.D., DAB No. 2266 at 16-17 (2009), aff’d, Fayad v. Sebelius, 803 F. Supp. 2d 699, 704 (E.D. Mich. 2011).  In that instance, I must assess whether CMS’ determination that a felony offense is detrimental to the best interests of the program and its beneficiaries is reasonable.  Fayad, DAB No. 2266 at 16-17 (providing the Board would have affirmed an individualized determination by CMS that a felony offense was detrimental because CMS drew a reasonable inference from the nature and circumstances of the Petitioner’s offense).

2. Preclusion

CMS may place an individual convicted of a felony offense within the previous 10 years but whose enrollment is not currently revoked on its preclusion list if it determines that felony offense to be detrimental to the best interests of the Medicare program.  42 C.F.R. § 422.2, Preclusion list (3).  CMS considered the following factors to make that determination:

(i) The severity of the offense;

(ii) When the offense occurred;

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

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42 C.F.R. § 422.2, Preclusion list (3); see also 42 C.F.R. § 423.100 Preclusion list (3).

In reviewing CMS’s decision to place a provider or supplier on the preclusion list, it is not my role 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, I may not substitute my 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).

VI.  Analysis

A. CMS had a valid basis to deny Petitioner’s enrollment application because he had been convicted of a felony offense that was per se detrimental to the Medicare program or its beneficiaries within the 10 years preceding his application.

1. Petitioner was convicted of a felony offense.

Denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(3) is premised on the existence of a felony conviction within the 10 years preceding the enrollment application.  Here, Petitioner resolved the criminal charges against him by entering a plea of “no contest” to the charges made against him.  CMS Ex. 5 at 1.  Relying on that plea, the state court entered judgment against him.  CMS Ex. 6 at 1.  The court withheld adjudication of the felony counts but sentenced Petitioner to three years’ probation.  Id. at 1, 3.

Petitioner chiefly argues CMS improperly concluded his no-contest plea amounted to a conviction for purposes of enrollment denial and preclusion.  P. Br. at 2, citing 42 C.F.R. § 1001.2, Convicted (c) (defining convictions to include, relevant here, where “[a] Federal, State, or local court has accepted a plea of guilty or nolo contendere by an individual or entity.”).  He contends both federal and Florida state law provide he cannot be considered convicted once his probationary period ended.  P. Hearing Req. at 3; P. Br. at 6-7, citing U.S. v. Thompson, 756 F. Supp. 1492, 1495 (N.D.Fla. 1991); Thomas v. State, 356 So. 2d 846 (Fla. Dist. Ct. App. 1978).  CMS argues the Board has repeatedly rejected this argument, instead finding CMS could define conviction more broadly than various states for the purposes of protecting the Medicare program.  CMS Br. at 7 (citations omitted).

The Act does not explicitly authorize CMS to broadly define “conviction” in the context of enrollment denials beyond the ordinary meaning of that term.  Nevertheless, CMS’s regulations define “convicted” to include not only convictions based on findings of guilt or guilty pleas but also nolo contendere pleas and alternative disposition programs where a judgment of conviction is withheld.  42 C.F.R. § 1001.2 Convicted.  The section of the

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Act relevant to enrollment denial specifies only that the Secretary “may refuse to enter into an agreement [with a provider of services] after the Secretary. . . (D) has ascertained that the provider 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.”  42 U.S.C. § 1395cc(b)(2)(D) (emphasis added).  The plain language of the Act appears to define convictions in the context of enrollment denials to mean felony convictions under either federal or state law; it does not explicitly authorize the Secretary to implement regulations to capture dispositions of criminal cases designed to avoid the ordinary definition of that term.

The Act does provide a much broader definition of conviction in the context of exclusion proceedings.  See 42 U.S. Code § 1320a–7(i) (defining convictions that oblige the Secretary to exclude an individual or entity to include not only judgments of conviction but also findings of guilt, pleas of guilty or nolo contendere, and deferred adjudication programs where judgment of conviction is withheld).  Because this is the only provision of the Act to define convictions, the Board has endorsed applying that definition in the context of enrollment revocations and denials.  Lorrie Laurel, PT, DAB No. 2524 at 4 (2013) (“In discussing why the federal definition of ‘conviction’ controls, the ALJ relied on the Board’s decision in a case involving a supplier’s exclusion from participation in federal health care programs under section 1128 of the Act.”).  The Board agreed that “[f]ederal law itself defines what constitutes a ‘conviction’ for purposes of CMS’s revocation authority” and that it was reasonable to apply the definition of “conviction” Congress prescribed for exclusion actions cases equally to revocation actions based on felony convictions.  Id. at 5, citing Henry L. Gupton, DAB No. 2058 at 7 (2007).

It is unclear why the Board in Laurel believed Congress intended to make the definition of “conviction” it provided for exclusion actions generally applicable as a “federal definition of ‘conviction.’”  DAB No. 2524 at 5.  Gupton persuasively explains why Congress intended to broadly define convictions in section 1128(a) of the Act – to ensure the Secretary’s exclusion authority reached every possible criminal action to protect the Medicare program and its beneficiaries.  Gupton, DAB No. 2058 at 7.  But there is no statutory analysis in Laurel to justify concluding Congress intended the definition of conviction it provided for exclusion actions to apply to every other context where the Secretary acts to protect the Medicare program and its beneficiaries.  Indeed, section 1128(a) itself makes clear its broad definition of “conviction” is intended to apply only to exclusion actions.  42 U.S. Code § 1320a–7(i) (“For purposes of subsections (a) and (b),⁵ an individual or entity is considered to have been ‘convicted’ of a criminal offense. . .”) (emphasis added).

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The Board revisited this issue and provided additional reasoning for its position in Kimberly Shipper, P.A., DAB No. 2804 (2017),stating Congress “elected not to define the term ‘convicted’ in 42 U.S.C. § 1395cc(b)(2)(D),” leaving the Secretary the “authority to define the term by regulation pursuant to 42 U.S.C. §§ 1302(a), 1395hh(a)(1), and 1395cc(j)(1)(A).”  DAB No. 2804 at 9.  But it is unclear why the Board viewed 42 U.S.C. § 1395cc(b)(2)(D)’s lack of definition for the term “convicted” as an indication of Congress’s intent to afford the Secretary authority to define that term by rule-making; the absence of a definition for the word “convicted” in the phrase “convicted of a felony under Federal or State law” does not imply the grant of authority to fashion one.  It instead suggests Congress intended the phrase to be given its ordinary, everyday meaning.  FDIC v. Meyer, 510 U.S. 471, 476 (1994) (absent a statutory definition, courts will “construe a statutory term in accordance with its ordinary or natural meaning”).

The Board next concluded the plain meaning of the provision authorizing the Secretary to refuse to contract with a provider “convicted of a felony under Federal or State law” did not limit the Secretary’s ability to define convictions differently because the phrase “under Federal or State law” applies to the preceding word “felony” and not to “convicted,” meaning the term “convicted” was not intended to be limited to felony offenses arising under state or federal law but could include any definition of that term arising under federal or state law.  Shipper, DAB No. 2804 at 7; 42 U.S.C. § 1395cc(b)(2)(D).  In other words, this phrase constrains the Secretary from defining felonies to include those that do not arise under federal or state law but does not limit the Secretary from defining the word “convicted.”  But this strained reading disregards the word “under” in the phrase “convicted of a felony under Federal or State law,” which more plainly read means a felony conviction arising under federal or state law, not a felony conviction within the meaning of federal or state law.  42 U.S.C. § 1395cc(b)(2)(D).

In any event, it is not clear Congress intended for the section of the Act pertaining solely to the Secretary’s exclusion authority to provide an all-encompassing “federal definition of conviction” intended for any action the Secretary might wish to take against a provider or supplier so long as protection of the Medicare program or its beneficiaries could plausibly be invoked, particularly when that section itself expressly limits the use of its broader definition of “convicted” to exclusion actions.  42 U.S. Code § 1320a–7(i).

Whatever its merits, I am nevertheless bound to follow the Board’s interpretation here.  Even if I were to disregard the Board and conclude the Secretary improperly expanded the definition of conviction by promulgating 42 C.F.R. § 1001.2 and applying it to revocation and enrollment denial actions, I have no authority to declare regulations invalid.  1866ICPayday.com, DAB No. 2289 at 14 (2009) (“An ALJ is bound by the applicable regulations and may not invalidate either a law or regulation on any ground, even a constitutional one.”).

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And even if I were to disregard the plain language of the regulation and binding Board precedent and apply Florida state law to assess whether Petitioner has been convicted of a felony offense, as he urges me to do, he would still not prevail.  As the Board observed in Laurel, which also involved an individual who received withheld adjudication from a Florida state court to resolve a felony charge against her, Florida defines convictions to include withheld adjudications:

Florida’s Criminal Punishment Code defines “conviction” as “a determination of guilt that is the result of a plea or trial, regardless of whether adjudication is withheld.”  Fla. Stat. § 921.0021(2).  The Florida Supreme Court has concluded that section 921.0021(2) “clearly indicates that the Legislature wanted to include all determinations of guilt [in the definition of conviction] even where adjudication had been withheld.”  Montgomery v. State, 897 So.2d 1282, 1287 (2005).

DAB No. 2524 at 5.

Whether applying the definition of “convicted” urged by CMS or Petitioner, the withheld adjudication Petitioner received for two felony counts when he pleaded to resolve the charges against him amounts to a conviction.  I therefore conclude CMS has established Petitioner was convicted of a felony offense.

2. Petitioner’s felony conviction occurred within the 10 years preceding his application.

Petitioner executed a no-contest plea agreement to resolve the charges against him, including two felony charges, on October 30, 2020.  CMS Ex. 5 at 1.  He submitted the enrollment application at issue here on February 28, 2022.  CMS Ex. 2 at 2.  Petitioner’s felony conviction therefore occurred within the 10 years preceding the date he submitted an enrollment application for Medicare billing privileges.

3. Petitioner’s felony conviction is per se detrimental to the best interests of the Medicare program or its beneficiaries because it is an enumerated offense.

The Act gave the Secretary the authority to determine which offenses were detrimental to Medicare and its beneficiaries.  42 U.S.C. § 1395u(h).  The Secretary’s regulations expressly identified felonies that are per se detrimental – making them, as the Board has observed, “detrimental to Medicare and its beneficiaries as a matter of law – that is, without regard to the circumstances underlying a particular supplier’s conviction. . . .”  John Hartman, D.O., DAB No. 2564 at 4 (2014).

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The felony offenses deemed as a matter of law to be per se detrimental include “[f]elony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.” 42 C.F.R. § 424.530(a)(3)(i)(A).  Here, Petitioner pleaded no-contest to two felony charges of aggravated assault with a deadly weapon.  CMS Ex. 4 at 1.  Assault is one of the crimes against persons identified by CMS in its regulations as per se detrimental.  42 C.F.R. § 424.530(a)(3)(i)(A).  CMS had a legal basis to find Petitioner’s felony conviction per se detrimental to the Medicare program or its beneficiaries and therefore deny Petitioner’s enrollment application.

B. CMS had a valid basis to add Petitioner to its Preclusion List.

Petitioner reiterates his argument that the withheld adjudication of the felony charges against him does not meet the meaning of conviction for purposes of preclusion.  P. Hearing Req. at 1-2; P. Br. at 6-7.  He contends that even if he could be considered “convicted” while the state court withheld adjudication pending completion of probation, that condition ended altogether once the state court released him from probationary status.  Id.  As I have already explained supra at section A.1, I must reject this argument and conclude that once Petitioner executed an agreement to plead nolo contendere to resolve the felony charges against him, he was convicted of a felony offense and thus eligible for preclusion.  42 C.F.R. § 1001.2, Convicted; 42 C.F.R. § 422.2, Preclusion list (3).

CMS must next establish it had a valid basis to place Petitioner on its Preclusion List by considering whether Petitioner’s felony conviction within 10 years of his enrollment application was detrimental to the best interests of the Medicare program by assessing the severity of Petitioner’s offense, when it occurred, and any other information CMS deems relevant.  42 C.F.R. § 422.2, Preclusion list (3).  I conclude CMS has met this burden.  In her reconsidered determination, Hearing Officer Hicks explicitly weighed these factors in determining Petitioner’s offenses of conviction were detrimental to the best interests of the Medicare program.  She first found Petitioner’s felony offenses severe because he “intentionally threatened to do violence to another person with a deadly weapon.  He shot in the direction of landscapers working at his home.  [Petitioner] committed this offense with a complete disregard for public safety and welfare.”  CMS Ex. 2 at 5.⁶  She observed Petitioner’s conviction to be recent because the acts he committed related to that conviction occurred on June 24, 2020, making Petitioner’s offense more likely to be detrimental to the Medicare program.  Id.  Finally, Hearing Officer Hicks observed CMS

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deemed Petitioner’s felony conviction for assault charges to be per se detrimental to the Medicare program or its beneficiaries, which militated towards placing him on the Preclusion List.  Id.

Petitioner disputes the severity of his offense conduct, contending Hearing Officer Hicks improperly relied on statements made in charging documents, a newspaper article, and pre-trial accusations.  P. Hearing Req. at 3.  He points out the non-severe nature of the state court’s sentence and that Florida considers intoxication and substance abuse or addictions a mitigating circumstance.  Id.  Petitioner’s arguments do not ultimately undermine CMS’s finding of severity or its ultimate determination that his offenses of conviction were detrimental to the best interests of the Medicare program.

In an effort to diminish the severity of his offense, Petitioner now claims he was simply shooting at targets from his property under the influence of alcohol.  P. Hearing Req. at 4.  But investigating deputies noted the foreman of a nearby landscaping crew reported Petitioner had been yelling at them earlier in the day, hearing Petitioner’s glass patio door shatter, and hearing gunshots from that direction.  CMS Ex. 7 at 1; P. Ex. 2 at 11.  Deputies reported entering Petitioner’s home and discovering a shattered glass door, what appeared to be a bullet hole in the blinds near the door, several spent and live shotgun shells, and a shotgun.  CMS Ex. 7 at 1.  I have no reason to discredit the official report of a law enforcement official who recorded his own observations in the course of an investigation.  The sequence of events reported in the newspaper article is consistent with details set forth in the arrest report.  They demonstrate Petitioner in fact “intentionally and unlawfully threaten[ed] by word or act to do violence” to others and used a deadly weapon in the process.  CMS Ex. 4 at 1.  In short, I find these sources credible and reject Petitioner’s claim that CMS should not have relied upon them.

Even accepting Petitioner’s version of events, which I do not find credible, it would be reasonable for CMS to conclude that a medical professional who fired a weapon in a residential area while intoxicated, thus threatening the lives of nearby individuals, committed an offense detrimental to the best interests of the Medicare program and thus requiring preclusion.⁷  In any event, the preponderance of the evidence here strongly suggests Petitioner did more than drunkenly target-shoot in the vicinity of others, as he claims.  CMS properly considered the severity of the offenses to which he pleaded no-contest in determining whether Petitioner should be placed on the Preclusion List.

Petitioner does not dispute CMS’s consideration of the remaining two factors, but I briefly note both favor CMS’s ultimate determination.  In June 2020, Petitioner shot a firearm either at or near individuals in a residential area.  He was charged with doing so intentionally and in an unlawful manner to threaten with violence while brandishing a

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deadly weapon.  CMS Ex. 4 at 1.  Petitioner did not contest this accusation against him.  CMS Ex. 5 at 1.  Hearing Officer Hicks found this conduct to be sufficiently recent in time to militate in favor of placing Petitioner on the Preclusion List.  I cannot say her conclusion is erroneous.

Hearing Officer Hicks also observed that CMS deemed Petitioner’s offense conduct per se detrimental to the best interests of the Medicare program in the context of enrollment denials and weighed that as another factor to consider in determining whether that same offense is detrimental in the context of preclusion.  CMS Ex. 2 at 5.  In considering whether Petitioner’s offenses of conviction are detrimental to the Medicare program, it was reasonable for the hearing officer to consider (though not rely upon as dispositive) the fact that in a similar context, CMS has deemed Petitioner’s offense per se detrimental.

The remainder of Petitioner’s arguments have merit but do not change the outcome here.  P. Br. at 7.  It is true he self-reported the charges against him and their disposition when he applied to enroll as a supplier.  He may correctly observe his preclusion will do nothing to safeguard the integrity of the Medicare program because he does not intend to enroll as a supplier and instead seeks merely to avoid an unnecessary financial burden for his cash-only patients insured by Medicare for tests and prescriptions.  Id. at 7-8.  But these facts have no bearing on whether CMS was authorized to place him on its Preclusion List.

VI.  Conclusion

Petitioner was convicted of felony offenses within ten years of the denial of his enrollment application.  His conviction was per se detrimental to the Medicare program or its beneficiaries.  CMS exercised its discretion to preclude Petitioner after analyzing the appropriate regulatory factors to conclude his offenses of conviction were detrimental to the Medicare program.  I affirm CMS’s decision to deny Petitioner’s enrollment application and place him on its Preclusion List.

Endnotes

¹ Petitioner does not contest the denial of his enrollment application as his patients pay cash for his services.  P. Br. at 1, 7-8.  He challenges his preclusion because his patients insured by Medicare are unable to file claims for laboratory testing or prescriptions he orders.  Id. at 7-8.  However, CMS’s determination addresses both enrollment denial and preclusion, and its articulation of why it took both actions addresses factors common to both analyses.  CMS Br. at 1 (“Here, CMS analyzed the applicable regulatory factors and decided that Petitioner’s per se violation warranted denial and inclusion to the Preclusion List.”).  My decision therefore addresses the propriety of CMS’s decision to deny Petitioner’s enrollment application as well as place him on its preclusion list.

² The form plea agreement executed by Petitioner specifies he believed “the plea is in my best interest even though I am innocent of the charge, charges, or violations, or may have defenses to them.”  CMS Ex. 5 at 2.

³ Petitioner had only 65 days to seek reconsideration, see CMS Ex. 8 at 2, making his request extremely untimely.  However, CMS found good cause to accept his untimely reconsideration request, though it did not specify its reasons for doing so.  CMS Ex. 2 at 1.

⁴ On January 10, 2024, Petitioner’s non-attorney representative sought a 180-day extension of time to file Petitioner’s pre-hearing exchange, citing limited access to his client following an emergent medical event in November 2023.  Initially, that request was improvidently granted.  On January 12, 2024, I convened a pre-hearing conference with the parties to explain to Petitioner’s representative that the regulations governing this matter required me to issue a decision within 180 days of the hearing request and did not provide means for me to toll that deadline for any reason.  See 42 C.F.R. §§ 498.79.  I afforded Petitioner as much as time possible, until March 8, 2024, to permit me to issue a timely decision.  The rigidity of this regulatory deadline, likely intended to benefit those whose enrollment applications are denied with a speedy appeals process, has, in this instance, prejudiced Petitioner to some degree.

⁵ Subsection (a) addresses mandatory exclusions while subsection (b) addresses permissive exclusions.  42 U.S. Code § 1320a–7(a),(b).

⁶ Hearing Officer Hicks also opined the state court’s imposition of a three-year sentence of probation and a $1,465 fine reinforced the severe nature of Petitioner’s felony offenses.  CMS Ex. 2 at 5.  As Petitioner correctly observes, a sentence of withheld adjudication, probation, and a minimal fine to resolve felony assault charges does not suggest the state court deemed Petitioner’s offense severe; it in fact suggests the opposite.  P. Hearing Req. at 3.  But even disregarding this characterization, the remainder of Hearing Officer Hicks’s analysis as to the severity of Petitioner’s offense is supported by the record.

⁷ By his own reckoning Petitioner acknowledges his conduct to be “grossly irresponsible.”  P. Hearing Req. at 4.