Lizeth Delgado, O.D., CR6452 (2024)

DECISION

This decision affirms the determination by the Centers for Medicare & Medicaid Services (CMS) to revoke the Medicare enrollment and billing privileges of Petitioner, Lizeth Delgado (Petitioner), and to place Petitioner on the CMS preclusion list.  

I.     Background

Petitioner is a Doctor of Optometry (O.D.) who was enrolled in two different Medicare contractor jurisdictions in Florida and Hawaii and had multiple Provider Transaction Access Numbers (PTANs), all of which were revoked.  

On April 20, 2022, Respondent, CMS, acting through its Medicare Administrative Contractor (MAC), First Coast Service Options, Inc., revoked the Florida Medicare enrollment and billing privileges of Petitioner pursuant to 42 C.F.R. § 424.535(a)(3), (a)(4), and (a)(9).  The revocation notice referenced PTANs IR458A and IR458B.  CMS

Page 2

Exhibit (Ex.) 4 at 1.  CMS subsequently placed Petitioner on its preclusion list and imposed a ten-year re-enrollment bar, effective 30 days from the date of the letter.  CMS Ex. 4 at 2, 4.  

On April 21, 2022, CMS, acting through its MAC, Noridian Healthcare Solutions, revoked Petitioner’s Hawaii Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) and (a)(4).  The revocation notice referenced PTANs H113161, H114278, and H116738.  CMS Ex. 3 at 1.  CMS subsequently placed Petitioner on its preclusion list and imposed a ten-year re-enrollment bar, effective 30 days from the date of the letter.  CMS Ex. 3 at 1-3. 

Petitioner requested reconsideration of CMS’s determinations on April 25, 2022.  CMS Ex. 2.  On June 28, 2022, a CMS hearing officer issued a reconsidered determination upholding the revocation of Petitioner’s Florida and Hawaii Medicare enrollment and billing privileges, a ten-year re-enrollment bar, and placement on the CMS preclusion list.  CMS Ex. 1 at 10.  

Petitioner timely requested a hearing (Hearing Request) before an Administrative Law Judge (ALJ) in the Civil Remedies Division.  On August 30, 2022, the Civil Remedies Division issued an Acknowledgment and Standing Prehearing Order (Standing Order) setting forth deadlines for the parties to submit arguments and proposed exhibits. 

On October 4, 2022, CMS filed a combined motion for summary judgment and brief (CMS Br.), along with sixteen proposed exhibits (CMS Exs. 1-16).  On November 11, 2022, Petitioner filed a brief opposing summary judgment (P. Br.), as well as twenty-one proposed exhibits (P. Exs. 1-21).  CMS filed a reply brief, objections to Petitioner’s exhibits, and a request to cross-examine Petitioner’s witnesses ¹ on November 28, 2022.  Petitioner filed a request for a decision on the written record on January 6, 2024.  CMS filed a response on February 12, 2024, withdrawing its request to cross-examine witnesses and stating that it does not oppose Petitioner’s request for a decision on the written record in the event that its motion for summary judgment is denied.  

II.     Admission of Exhibits and Decision on the Record

CMS objects to Petitioner’s Exhibits (P. Exs.) 1-5 on grounds that the exhibits constitute new evidence for which no good cause has been shown for failing to present the evidence previously to CMS.  See Standing Order ¶ 7.  P. Exs. 1-5 are documents related to Petitioner’s felony conviction in the St. Lucie County, Florida Circuit Court.  Petitioner explains in her brief that good cause exhibits for not presenting P. Exs. 1-5 earlier

Page 3

because she did not know that these documents were available on the state court’s website.  P. Br. at 3.  I need not determine whether Petitioner’s representations constitute good cause to admit P. Exs. 1, 2, 3, and 5 because the exhibits are not new evidence.  In the June 28, 2022 reconsidered determination, the CMS hearing officer listed and described the exhibits considered as evidence in their decision.  CMS Ex. 1 at 2-3.  Based on the hearing officer’s descriptions of Exhibits 6-9, I find that the documents filed as Exhibits 6-9 before the CMS hearing officer are the same documents Petitioner filed as P. Exs. 1, 2, 3, and 5.  With respect to P. Ex. 4, Petitioner’s representation is accepted as a sufficient showing of good cause.  Therefore, CMS’s objections are overruled on these grounds.  

CMS also objects to the relevance of P. Exs. 1-5 arguing that that the documents are an attempt to relitigate the facts and circumstances underlying Petitioner’s conviction and thus not relevant to a reviewable factual or legal determination in this case.  CMS Rep. Br. ALJs are not bound by the Federal Rules of Evidence and may receive evidence that may otherwise be inadmissible.  42 C.F.R. § 498.61.  The ALJ determines admissibility and may choose to “apply the Federal Rules of Evidence where appropriate, for example, to exclude unreliable evidence.”  Civil Remedies Division Procedures (CRDP) § 20.  Generally speaking, evidence is relevant if it has any tendency to make a fact more or less probable than without the evidence and the fact is of consequence in determining the action.  FRE Rule 401.  Petitioner cites P. Exs. 1-5 as evidence to support the argument that her conviction is not a per se detrimental offense under 42 C.F.R. § 424.535(a)(3), one of the regulatory bases upon which Petitioner’s enrollment and billing privileges were revoked.  P. Br. at 7-10.  Therefore, the exhibits are relevant for the purpose offered by Petitioner, and CMS’s objections to the relevance of P. Exs. 1-5 are overruled. 

CMS also objects to P. Exs. 3 and 5 because the documents are duplicative of CMS Exs. 12 and 13.  P. Ex. 3 is a duplicate of CMS Ex. 13, and P. Ex. 5 is a duplicate of CMS Ex. 12.  My Standing Order advised that the CRDP apply to this case.  CRDP § 14 instructs the parties that they should not file as an exhibit a document already filed as an exhibit by the opposing party.  CMS’s objections to P. Exs. 3 and 5 are sustained and the exhibits are excluded from the record. 

Lastly, CMS objects to the relevance of P. Exs. 7-21 because they do not contain information pertaining to reviewable factual and legal determinations.  These exhibits are the written direct testimony of witnesses in the form of declarations.  Specifically, P. Exs. 8-21 are character references from Petitioner’s co-workers, patients, and family members.  However, Petitioner’s character is not relevant to any issue before me, so CMS’s objection to P. Exs. 8-21 is sustained.  P. Ex. 7 is Petitioner’s self-made declaration in which she states, among other things, that the facts underlying her conviction did not involve any collision or injury to a person.  The existence of a collision or injury is relevant to whether Petitioner’s offense constitutes a crime against a person, and thus a per se detrimental offense under 42 C.F.R. § 424.535(a)(3), which is one of the

Page 4

revocation bases challenged by Petitioner.  Furthermore, CMS withdrew its request to cross-examine Petitioner and does not otherwise challenge the authenticity or reliability of Petitioner’s declaration.  

Accordingly, P. Exs. 1, 2, 4, 6, and 7 are admitted into the record.  Petitioner did not object to CMS’s proposed exhibits.  Therefore, CMS Exs. 1-16 are admitted into the record. 

Petitioner requested a decision on the written record and CMS does not oppose the request.  Consequently, CMS’s motion for summary judgment is denied as moot, and this decision will be issued based on the written record.  CRDP § 19(d). 

III.     Issues

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare privileges under 42 C.F.R. § 424.535(a)(3);

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare privileges under 42 C.F.R. § 424.535(a)(4) for submitting false or misleading information on her enrollment applications;

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare privileges under 42 C.F.R. § 424.535(a)(9) for failing to report a felony conviction on her enrollment applications; and

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

IV.     Jurisdiction

This tribunal has 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). 

V.     Statutory and Regulatory Framework

Petitioner, an optometrist, is considered a supplier of health care services under the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 410.22 (describing the limitations on Medicare payments for optometrists’ services), 498.2 (definition of supplier). 

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.  Suppliers must submit enrollment information on the applicable enrollment application.  42 C.F.R § 424.510(a)(1).  The enrollment application must contain complete, accurate, and

Page 5

truthful responses to all information requested within each section as applicable to the provider or supplier type.  42 C.F.R § 424.510(d)(1)-(2).  

To maintain Medicare billing privileges, a supplier must resubmit and recertify the accuracy of its enrollment information every five years.  42 C.F.R. § 424.515.  The supplier must provide the applicable enrollment application with complete and accurate information and applicable supporting documentation within 60 days of CMS’s notification to resubmit and certify to the accuracy of its enrollment information.  42 C.F.R. § 424.515(a)(2). 

CMS may revoke a supplier’s Medicare enrollment and billing privileges for any reason stated in 42 C.F.R § 424.535(a), which includes felony convictions and providing false or misleading information: 

(3)  Felonies. 

(i)  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 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 –

(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. 

* * * *

(4)  False or misleading information.  The provider or supplier certified as “true” misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.  (Offenders may be subject to either fines or imprisonment, or both, in accordance with current law and regulations.) 

* * * *

(9)  Failure to report.  The provider or supplier did not comply with the reporting requirements specified in § 424.516(d) or (e), § 410.33(g)(2) of this chapter, or § 424.57(c)(2).  In determining

Page 6

whether a revocation under this paragraph (a)(9) is appropriate, CMS considers the following factors: 

(i)  Whether the data in question was reported. 

(ii)  If the data was reported, how belatedly. 

(iii)  The materiality of the data in question. 

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

42 C.F.R. § 424.535(a)(3)-(4), (9). 

After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is generally barred from re-enrolling in the Medicare program for a period of one to ten years from the effective date of the revocation.  42 C.F.R. § 424.535(c)(1).  The effective date of the revocation is controlled by 42 C.F.R. § 424.535(g).  Where the revocation is based on a felony conviction, the effective date of the revocation is the date of the felony conviction.  42 C.F.R. § 424.535(g)(2)(ii). 

Furthermore, CMS may place certain individuals and entities on the preclusion list.  Medicare Advantage organizations and Medicare Part D plan sponsors may not provide reimbursement for any items or services furnished by an individual or entity on CMS’s preclusion list, or for prescriptions the individuals write.  42 C.F.R. §§ 422.2, 422.222, 422.224, 423.100, and 423.120(c)(6).  The following definitions of the preclusion list are applicable here: 

Preclusion list means a CMS compiled list of individuals and entities that—

(1) Meet all of the following requirements: 

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in § 424.535(a)(3) of this chapter. 

(ii) The individual or entity is currently under a reenrollment bar under § 424.535(c). 

(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program. In making this determination under this paragraph (1)(iii), CMS considers the following factors: 

Page 7

(A) The seriousness of the conduct underlying the individual's or entity's revocation. 

(B) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program. 

(C) Any other evidence that CMS deems relevant to its determination; or

* * * *

(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 under this paragraph (3) 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, Preclusion list (1) and (3).  

An individual that is revoked under 42 C.F.R. § 424.535 will be included on the preclusion list for the same length of time as the individual's or entity's reenrollment bar.  42 C.F.R. § 422.222(a)(5)(i).  However, if CMS places an individual on the preclusion list based on a felony conviction, the individual will remain on the preclusion list for a ten-year period, beginning on the date of the conviction, unless CMS determines that a shorter length of time is warranted.  In deciding whether a shorter term of preclusion is appropriate, CMS considers:  

(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. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C). 

Page 8

VI.     Findings of Fact

On May 8, 2017, a criminal information was filed in the Circuit Court of the 19th Judicial Circuit in and for St. Lucie County, Florida (state court) which alleged that Petitioner, on or about April 19, 2017, was the driver of a vehicle involved in a crash that resulted in personal injury to a victim, and failed to immediately stop and remain at the scene of the crash or as close thereto as possible, until fulfilling the requirements of Florida Statute (Fla. Stat.) 316.062,² in violation of Fla. Stat. § 316.027(2)(a).  CMS Ex. 13; P. Ex. 3. 

Fla. Stat. § 316.027(2)(a) provides that: 

(2)(a)  The driver of a vehicle involved in a crash occurring on public or private property which results in injury to a person other than serious bodily injury shall immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and shall remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062. A person who willfully violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 

Fla. Stat. § 316.027(2)(a).³ 

On March 28, 2018, Petitioner pleaded nolo contendere to one count of Leaving the Scene of an Accident-Personal Injury in violation of Fla. Stat. § 316.027(2)(a), a third-degree felony.  CMS Ex. 11 at 1; CMS Ex. 12 at 1-2, 5.  A judge of the state court accepted Petitioner’s nolo contendere plea, entered an order withholding adjudication, and placed Petitioner on a two-year period of probation.  CMS Ex. 9; CMS Ex. 11 at 1. 

Pursuant to Fla. R. Crim. P. 3.992, the court prepared a Rule 3.992(a) Criminal Punishment Code Scoresheet ⁴ which contains a section for “Victim Injury” and lists 2nd

Page 9

Degree Murder, Death, Severe, Moderate, Slight, Sex Penetration, and Sex Contact, along with blank fields next to each injury to indicate severity in terms of sentencing points.  The scoresheet shows entries of “0” in all the fields and was signed by the state court judge who accepted Petitioner’s nolo contendere plea.  P. Ex. 4.  

Petitioner did not report her March 28, 2018 conviction to CMS within 30 days of the conviction.  

On July 27, 2018, Petitioner submitted an enrollment application via the Provider Enrollment, Chain, and Ownership System (PECOS) to add, delete, or change her general Medicare enrollment information for Florida.  CMS Ex. 8 at 1.  The enrollment application requires applicants to disclose final adverse legal actions,⁵ asking “[h]as a final adverse legal action ever been imposed against an applicant under any current or former name of business entity?”  Petitioner answered “No” and did not mention her May 2018 felony conviction on the application.  CMS Ex. 8 at 2.  Petitioner electronically signed the certification statement for individual practitioners and was the authorized signer for the application.  CMS Ex. 8 at 1. 

On January 17, 2019, Petitioner submitted an enrollment application to bill for Medicare Part B services in Hawaii.  CMS Ex. 7 at 1.  Section 3 of the application requires applicants to disclose final adverse legal actions.  Petitioner did not mention her May 2018 felony conviction on the application.  CMS Ex. 7 at 3.  Petitioner electronically signed the certification statement for individual practitioners and was the authorized signer for the application.  CMS Ex. 7 at 1. 

On September 6, 2019, Petitioner submitted an enrollment application to add, delete, or change her general Medicare enrollment information for Hawaii.  CMS Ex. 6 at 1.  Section 3 of the application requires applicants to disclose final adverse legal actions.  Petitioner did not mention her May 2018 felony conviction on the application.  CMS Ex. 6 at 3.  Petitioner electronically signed the certification statement for individual practitioners and was the authorized signer for the application.  CMS Ex. 6 at 1. 

Page 10

On August 29, 2020, Petitioner submitted another enrollment application to add, delete, or change her general Medicare enrollment information for Hawaii.  CMS Ex. 5 at 1.  Section 3 of the application requires applicants to disclose final adverse legal actions.  Petitioner again did not mention her May 2018 felony conviction on the application.  CMS Ex. 5 at 3.  Petitioner electronically signed the certification statement for individual practitioners and was the authorized signer for the application.  CMS Ex. 5 at 1. 

By letter dated April 20, 2022, First Coast notified Petitioner that her Florida Medicare enrollment and billing privileges were revoked effective March 28, 2018.  CMS Ex. 4 at 1.  First Coast explained that Petitioner’s Medicare privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(3) due to her felony conviction, as defined in 42 C.F.R. § 1001.2, for Leaving the Scene of an Accident-Personal Injury in violation of Fla. Stat. § 316.027(2A).  Id. at 1.  First Coast also revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(9) because Petitioner failed to report the March 28, 2018 felony conviction.  Id.  Finally, First Coast revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(4) because she provided false or misleading information on the July 27, 2018 enrollment application by responding “No” when asked whether an adverse legal action had been imposed against her.  Id.  First Coast notified Petitioner that she would be added to the CMS Preclusion list, effective either the date of an unsuccessful reconsidered decision or, if Petitioner did not request reconsideration, 65 days from the date of the notice letter, and subject to a ten-year re-enrollment bar effective 30 days from the date of the letter.  CMS Ex. 4 at 2, 4.  

By letter dated April 21, 2022, Noridian notified Petitioner that her Hawaii Medicare enrollment and billing privileges were revoked effective January 15, 2019.  CMS Ex. 3 at 1.  Noridian explained that Petitioner’s Medicare privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(3) due to her felony conviction, as defined in 42 C.F.R. § 1001.2, for Leaving the Scene of an Accident-Personal Injury in violation of Fla. Stat. § 316.027(2A).  Id. at 1.  Noridian also revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(4) because she provided false or misleading information on the January 17, 2019, September 6, 2019 and August 29, 2020 enrollment applications by responding “No” when asked whether an adverse legal action had been imposed against her.  Id.  Noridian notified Petitioner that she would be added to the CMS Preclusion list, effective either the date of an unsuccessful reconsidered decision or, if Petitioner did not request reconsideration, 65 days from the date of the notice letter, and subject to a ten-year re-enrollment bar effective 30 days from the date of the letter.  CMS Ex. 3 at 2-3.  

Petitioner timely requested reconsideration of the CMS determination on April 25, 2022.  CMS Ex. 2.  On June 28, 2022, a CMS hearing officer issued a reconsidered determination upholding the revocation of Petitioner’s Florida and Hawaii Medicare enrollment and billing privileges, a ten-year re-enrollment bar, and placement on the CMS preclusion list, effective the date of the reconsidered determination.  CMS Ex. 1 at 10.  

Page 11

In her declaration, Petitioner testifies that she is not factually guilty of the felony conviction of leaving the scene of an accident with injury because there was no collision or injury.  She states, among other things, that: 

There were several cars at a traffic light.  Ms. Isom came out from in between the third or fourth car.  I slammed on my brakes to avoid colliding into Ms. Isom.  I allowed her to pass.  It was a close call, but I did not hit Ms. Isom . . . . I had no reason to stay at the scene because there was no accident, collision, or injury involving Ms. Isom.  It was a mere close call.  

P. Ex. 7.  CMS withdrew its request to cross-examine Petitioner and does not otherwise dispute the reliability of Petitioner’s testimony.  Moreover, Petitioner’s testimony is consistent with the criminal punishment code scoresheet, prepared by the state’s attorney’s office andx signed by the sentencing judge, which shows “0” for all fields related to the victim’s injury, the least severe of which is a “slight” injury.  

VII.     Analysis and Conclusions of Law

1. CMS had a legal basis to revoke Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(3) because, within the ten years prior to her application, Petitioner was convicted of a felony offense that CMS has determined to be detrimental to the best interests of the Medicare program and its beneficiaries.⁶ 

a. Petitioner was convicted of a felony offense within the 10 years prior to revocation.  

CMS may revoke a supplier’s Medicare billing privileges if, within the preceding ten years, they were convicted of a “felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.535(a)(3)(i).  The term “Convicted” means that –

(c)  A Federal, State or local court has accepted a plea of guilty or nolo contendere by an individual or entity; or

Page 12

(d)  An individual or entity has entered into participation in a first offender, deferred adjudication or other program or arrangement where judgment of conviction has been withheld.  

42 C.F.R. § 1001.2 (definition of “Convicted”).  

It is undisputed that on March 28, 2018, Petitioner pleaded nolo contendere to one count of Leaving the Scene of an Accident-Personal Injury in violation of Fla. Stat. § 316.027(2)(a), a third-degree felony.  CMS Ex. 11 at 1; CMS Ex. 12 at 1-2, 5.  A judge of the state court accepted Petitioner’s nolo contendere plea, entered an order withholding adjudication, and placed Petitioner on probation for two years.  CMS Ex. 9; CMS Ex. 11 at 1.  The regulations specifically contemplate convictions to include both nolo contendere pleas and deferred adjudications, as in Petitioner’s case.  

Petitioner, however, argues that she “pled no contest without admitting guilt and without conceding an adjudication of guilt” and did so for practical reasons related to financial constraints and other life circumstances.  P. Br. at 6.  Notwithstanding Petitioner’s reasons for entering into a plea agreement, the evidence shows that Petitioner knowingly and voluntarily entered a nolo contendere plea, and that the court accepted Petitioner’s plea and deferred adjudication.  P. Ex 5 at 6 ¶ 27; CMS Ex. 9.  There is no dispute that the March 2018 conviction occurred within the preceding 10 years.  Therefore, Petitioner was convicted of a felony offense as defined by 42 C.F.R. § 1001.2.  See e.g., Kimberly Shipper, P.A., DAB No. 2804 (2017) (finding a deferred adjudication on a first-degree felony aggravated assault against a public servant constituted a “conviction” sufficient to trigger reporting requirements); Lorrie Laurel, PT, DAB No. 2524 (2013) (whether Petitioner was “convicted” of a felony is a matter of federal and not State law). 

b. CMS reasonably determined that the offense of which Petitioner was convicted is detrimental to the best interests of the Medicare program and its beneficiaries. 

CMS may revoke a supplier’s Medicare billing privileges if, within the preceding ten years, they were convicted of a “felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.535(a)(3)(i).  CMS has determined ⁷ that “[f]elony crimes against persons, such as

Page 13

murder, rape, assault, and other similar crimes” are per se detrimental to the Medicare program.  42 C.F.R. § 424.535(a)(3)(ii)(A).  CMS is also authorized to determine, on a case‑by‑case basis, that a particular felony conviction is detrimental to Medicare.  See Saeed A. Bajwa, M.D., DAB No. 2799 at 12 (2017) (holding that § 424.535(a)(3) authorizes CMS to determine what felony convictions are detrimental and that CMS is not limited to the felonies enumerated in the regulation as bases for revocation). 

In the June 28, 2022 reconsidered determination, CMS concluded that Petitioner’s felony conviction is detrimental to the Medicare program under 42 C.F.R. § 424.535(a)(3).  CMS made two determinations in that regard.  First, the CMS hearing officer determined that Petitioner’s felony conviction is a per se detrimental offense because it is a crime against a person: 

Dr. Delgado admitted that this offense was committed in the presence of others (see Exhibit 1).  Furthermore, an essential element of the offense, as defined in the Florida Statutes, is that the crash “results in injury to a person other than serious bodily injury” (see F.S. § 316.028(2)(a)).  Accordingly, this offense is a felony crime against a person. 

CMS Ex. 1 at 4 (footnote omitted).  The hearing officer also made the case-by-case determination that Petitioner’s felony conviction is detrimental to the best interests of the Medicare program based on the specific facts and circumstances of the case: 

Dr. Delgado’s felony offense involved her failing to stop and remain at the scene of a crash, which resulted in personal injury . . . Dr. Delgado does not dispute that she caused personal injury, or that she failed to remain at the scene . . . CMS finds Dr. Delgado’s actions to be concerning as they indicate a disregard for the safety of others, and it calls into question her ability to exercise good judgment. 

CMS Ex. 1 at 4.  

CMS first argues that the hearing officer reasonably determined Petitioner’s conviction to be per se detrimental to the Medicare program because it was “committed in the presence of others” and involved “personal injury”, and thus constitutes a felony crime against persons similar to assault.  CMS Br. at 9.  However, the evidence does not show that the specific facts of Petitioner’s offense involved personal injury.  ALJs may consider “the conduct and circumstances underlying” a felony conviction to determine whether it is 

Page 14

akin to a crime listed in 42 C.F.R. § 424.535(a)(3)(ii).  See Abdul Razzaque Ahmed, M.D.,DAB No. 2261 at 11 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass 2010).  Although an element of Petitioner’s felony offense under Fla. Stat. § 316.027(2)(a) involves injury to another person, the evidence does not show that the circumstances underlying Petitioner’s conviction involved personal injury.  Petitioner testified in her written declaration that she did not hit the victim and that it was merely a near collision.  P. Ex. 7.  Petitioner’s statement is credible and consistent with the evidence of record.  Significantly, Petitioner’s testimony is consistent with the criminal punishment code scoresheet, which shows “0” for all fields related to the victim’s injury, with the least severe being a “slight” injury.  As such, the evidence reasonably supports a finding that there was essentially little to no injury to the victim.  

Furthermore, the evidence does not show that Petitioner’s offense is similar to murder, rape, assault, or similar crimes, such as kidnapping, robbery, or battery.  Petitioner argues that the crime of leaving the scene of an accident with injury is not a per se detrimental offense because it involves no malicious intent or recklessness.  P. Br. at 8-9 (citing Debra S. Bailey, Ph.D., DAB CR5534 (2020)).  Petitioner testified that she did not hit the victim and it was merely a near collision.  P. Ex. 7 at 1.  CMS argues that § 424.535(a)(3) contains no intent requirement in determining whether an offense is per se detrimental to the Medicare program.  CMS Reply Br. at 4.  Although § 424.535(a)(3) does not contain an explicit intent requirement, the enumerated felony crimes against persons of murder, rape, and assault in § 424.535(a)(3)(ii) generally involve an element of intent to inflict physical harm against another person, which reasonably indicates that similar crimes should contain a similar element. 

It is unclear how Petitioner’s offense can reasonably be considered similar to murder, rape, assault, or similar crimes when Petitioner’s offense neither involved injury to a person, nor any perceivable intent to harm a person.  While CMS correctly notes that an element of Fla. Stat. § 316.027(2)(a) involves intent, the only perceivable intent in the wording of the offense is the willful act of failing to stop after an accident, which is distinct from the willful act to inflict injury on another person.  CMS cites the Departmental Appeals Board’s (Board’s) decision in Sunsites Pearce Fire District for the proposition that Petitioner’s offense can be analogized to crimes like murder, rape, or assault.  DAB No. 2926 at 11 (2019).  In Sunsites,the Board found the crime “felony disorderly conduct” sufficiently analogous to assault because the crime is defined “in a way which highlights its hostile impact on other persons in a manner endangering their safety[.]”  Id.  However, the facts in Sunsites are distinguishable from those here because in Sunsites it was “undisputed that JS fired off a semi-automatic handgun in the presence of an ex-girlfriend.”  Id.  Here, Petitioner disputes whether there was an injury or collision with the victim, and there is no evidence to contradict Petitioner’s assertion.  Id. 

Page 15

Therefore, CMS did not reasonably determine that Petitioner’s felony offense is a per se detrimental crime against a person such as murder, rape, assault, and other similar crimes. 

CMS also exercised its discretion to determine that Petitioner’s felony conviction is detrimental to the Medicare program and its beneficiaries based on the specific facts and circumstances of the case.  CMS Ex. 1 at 4.  On February 3, 2015, 42 C.F.R. § 424.535(a)(3) was amended to permit CMS to determine that a felony is detrimental to Medicare or its beneficiaries even if it is not one described in 42 C.F.R. § 424.535(a)(3)(i).  79 Fed. Reg. 72,500, 72,509-10 (Dec. 5, 2014) (explaining that “we proposed to modify the list of felonies in each section such that any felony conviction that we determine to be detrimental to the best interests of the Medicare program and its beneficiaries would constitute a basis for denial or revocation.”).  Petitioner argues that CMS’s case-by-case determination is not entitled to unreviewable discretion.  P. Br. at 10-11.  However, it is well-established that so long as CMS establishes a legal basis for its action, an ALJ cannot substitute their discretion for that of CMS and must sustain the revocation.  See e.g., Stephen White, M.D., DAB No. 2912 at 14 (2018); Ahmed, DAB No. 2261, at 19.  

Petitioner argues that CMS’s determination is unreasonable when comparing the facts of Petitioner’s offense to those in several other cases arising under § 424.535(a)(3), such as felony disorderly conduct stemming from discharging a semi-automatic handgun in front of another in Sunsites, DAB No. 2926 at 11, or felony possession of cocaine in White, DAB No. 2912.  P. Br. at 13-14.  While the facts underlying Petitioner’s offense may appear less severe than the cases cited by Petitioner, CMS nevertheless reasonably determined that Petitioner’s conduct posed a risk to Medicare beneficiaries should she be allowed to participate.  The hearing officer explained that Petitioner’s actions “indicate a disregard for the safety of others and it calls into question her ability to exercise good judgment.”  CMS Ex. 1 at 4.  Petitioner concedes that she left the scene of a near collision which resulted in a heated verbal altercation with a pedestrian in traffic.  P. Ex. 7 at 1 ¶ 7.  Even if there were no collision or injury, Petitioner’s decision to leave the scene of such an incident could reasonably be viewed as a failure to exercise good judgment and a disregard for the safety of others that would be detrimental to her ability to act in the best interests of the Medicare program and its beneficiaries.  CMS reasonably determined that Petitioner’s felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries.  Accordingly, CMS had a legal basis to revoke Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(3).  Because CMS has a legal basis for its revocation determination, I do not have the authority to substitute my discretion for that of CMS or its contractor.  Brian K. Ellefsen, D.O., DAB No. 2626 at 7 (2015).  

Page 16

2.  CMS had a legal basis to revoke Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(4) because Petitioner provided false or misleading information on enrollment and revalidation applications by failing to report an adverse legal action. 

CMS may revoke a supplier’s Medicare enrollment and billing privileges for providing false or misleading enrollment information, as follows: 

(a)  Reasons for revocation.  CMS may revoke a currently enrolled [supplier’s] Medicare enrollment and any corresponding [supplier] agreement for the following reasons: 

* * * *

(4)  False or Misleading Information.  The [supplier] certified 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). 

The enrollment and revalidation applications require suppliers to provide information on any final adverse legal actions imposed against the applicant under any current or former name or another business entity.  CMS Exs. 5 at 3, 6 at 3, 7 at 3, 8 at 2.  Petitioner signed and submitted four enrollment applications to CMS on July 27, 2018, January 17, 2019, September 6, 2019, and August 29, 2020.  However, Petitioner did not report her March 2018 felony conviction on any of the applications.  Each application requires  the applicant to disclose final adverse legal actions, asking “[h]as a final adverse legal action ever been imposed against an applicant under any current or former name of business entity?”  Petitioner answered “No” and did not mention her May 2018 felony conviction on all four applications.  Petitioner electronically signed the certification statement and was the authorized signer for the applications.  CMS Exs. 5, 6, 7, 8 at 1.  

Petitioner does not dispute these facts.  Instead, Petitioner contends that she was not required to report her conviction on the enrollment applications because page 16 of CMS Form 855A defines a final adverse action in the same manner as § 424.535(a)(3)(i), namely a “Federal or State felony offense that CMS has determined to be detrimental to the best interests of the program and its beneficiaries.”  P. Br. at 14-15.  Petitioner thus argues that because she was not convicted of a felony that CMS has determined to be detrimental to the Medicare program, she was not required to report this on the enrollment applications. 

Page 17

Petitioner’s argument is without merit.  The evidence shows that applicants are specifically advised in PECOs to report a State or Federal felony when a conviction has occurred, and that “conviction has occurred when a judgment has been entered against an individual/entity by a judge/jury or the court has accepted a plea of guilty or nolo contendere.”  CMS Ex. 14 at 3.  Furthermore, contrary to Petitioner’s assertion, CMS-855A ⁹ requires applicants to report:  

Any crime, under Federal or State law, where an individual or entity has entered into participation in a first offender, deferred adjudication or other program or arrangement where judgment of conviction has been withheld, or the criminal conduct has been expunged or otherwise removed, or there is a post-trial motion or appeal pending, or the court has made a finding of guilt or accepted a plea of guilty or nolo contendere. 

As such, Petitioner’s conviction pursuant to her nolo contendere plea satisfies the definition of a reportable conviction for purposes of Medicare enrollment. 

To the extent that Petitioner argues in her Hearing Request that she was unaware that her applications were “not in compliance with Medicare,” Petitioner’s awareness of, or intent to submit, false information on enrollment applications is irrelevant in determining whether CMS was authorized to revoke her program participation.  The Board has consistently held that section 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.”  Sandra E. Johnson, CRNA, DAB No. 2708 at 15 (2016) (quoting Mark Koch, D.O., DAB No. 2610 at 4-5 (2014) (emphasis in original)). 

The Board has also held: 

Given the affirmative duty to provide “complete, accurate, and truthful” information on the enrollment application, if a supplier submits a signed application and fails to list a final adverse legal action on the application, then the supplier will have certified as true information concerning [their] adverse legal history that is manifestly not “complete, accurate, and truthful,” but rather false or misleading.  In those circumstances, CMS may revoke the supplier’s Medicare billing privileges under section 424.535(a)(4).  See,

Page 18

e.g., Dennis McGinty, PT, DAB No. 2838, at 6, 8 (2017) (holding that the supplier was subject to revocation under section 424.535(a)(4) because he certified his enrollment application as true and complete, yet failed to report on the application a final adverse legal action), aff’d, No. 3:18-CV-359, 2019 WL 3034596 (N.D. Tex. July 19, 2019). 

William Garner, M.D., DAB No. 3026 (2020). 

Regardless of the supplier’s intent, CMS has the authority to revoke a supplier’s Medicare enrollment and billing privileges when the supplier certifies as true information on the enrollment application that is in fact false or misleading.  Although Petitioner may have been under the misapprehension that her conviction pursuant to a nolo contendere plea was not a reportable final adverse action, she in fact provided inaccurate, and thus false or misleading, information by failing to report her March 2018 conviction on the July 27, 2018, January 17, 2019, September 6, 2019, and August 29, 2020 enrollment applications.  Therefore, CMS had a legal basis to revoke Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(4). 

3.  CMS had a legal basis to revoke Petitioner’s Florida Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(9) because she did not comply with applicable reporting requirements.     

Under 42 C.F.R. § 424.535(a)(9), CMS may revoke a supplier’s enrollment and billing privileges if a supplier does not comply with the reporting requirements of 42 C.F.R. §§ 424.516(d)-(e), 410.33(g)(2), 424.57(c)(2).  Petitioner is neither an independent diagnostic testing facility, nor a supplier of durable medical equipment, prosthetics, orthotics and supplies, so the reporting requirements of sections 410.33(g)(2) and 424.57(c)(2) do not apply.            Relevant here is 42 C.F.R. § 424.516(d), which establishes reporting requirements for physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations and requires suppliers to report “[a]ny adverse legal action” within 30 days.  

CMS revoked Petitioner’s Medicare enrollment and billing privileges in Florida because she failed to comply with the reporting requirements of 42 C.F.R. § 424.516(d).  CMS Ex. 1 at 6; CMS Ex. 4 at 1.  The hearing officer determined that: 

Pursuant to § 424.535(a)(9), CMS may revoke a supplier’s enrollment in the Medicare program if the supplier did not comply with the reporting specified in § 424.516(d)(1)(i)-(iii). Under § 424.516(d)(1)(ii), physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations must report any adverse legal action to their

Page 19

Medicare Administrative Contractor (MAC) within 30 days. Because [Petitioner] is enrolled in the Medicare program as a physician, this reporting requirement in applicable to her. 

CMS Ex. 1 at 6.  

It is undisputed that Petitioner failed to report her March 28, 2018 felony conviction for violating Fla. Stat. § 316.027(2)(a), as required by the regulations.  Petitioner, however, argues that she was not required to report her conviction under § 424.535(a)(9) because she was only required to report offenses that CMS has determined are detrimental to Medicare, and that her conviction is not such an offense.  P. Br. at 15.  Petitioner’s argument is based on a selective citation to 42 C.F.R § 424.57(a), which defines a “final adverse action” as a “conviction of a Federal or State felony offense (as defined in § 424.535(a)(3)(i) within the last 10 years preceding enrollment, revalidation, or re-enrollment.”  Petitioner’s argument fails in two respects.  

First, the definition of “final adverse action” relied upon by Petitioner is found in 42 C.F.R § 424.57(a).  However, the regulation cited by Petitioner explicitly applies to DMEPOS suppliers, so the regulation is inapplicable in this case. The relevant reporting requirement is found in § 424.57(c)(2), which requires suppliers to have “not made, or caused to be made, any false statement or misrepresentation of a material fact on its application for billing privileges,” and makes no mention of final adverse actions.  

Second, the reporting requirement relevant to Petitioner is found in § 424.516(d), which CMS specifically cited as the reporting requirement with which Petitioner did not comply in both the initial and reconsidered determinations.  CMS Ex. 1 at 6; CMS Ex. 4 at 1.  The regulation requires the reporting of “[a]ny adverse legal action,” which is distinct from a “final adverse action” because it is a broader reporting requirement that includes, but is not limited to, a final adverse action.  Akram A. Ismail, M.D., DAB No. 2429 at 11 (2011).  Petitioner’s felony conviction under Fla. Stat. § 316.027(2)(a) undoubtedly falls under the requirement to report any adverse legal action.  The evidence does not show that Petitioner reported the March 2018 conviction to CMS within the 30-day time frame required by the regulation, nor does Petitioner assert that she timely reported the conviction.  Therefore, CMS had a legal basis to revoke Petitioner’s Medicare privileges under 42 C.F.R. § 424.535(a)(9).  

4. CMS had a legal basis to add Petitioner to the preclusion list effective June 28, 2022, the date of the reconsidered determination, until March 28, 2028, ten years from the date of Petitioner’s felony conviction. 

The CMS preclusion list is comprised of individuals and entities who are precluded from receiving payment for Medicare Advantage items and services or Medicare Part D drugs

Page 20

furnished or prescribed to Medicare beneficiaries.  CMS may place an individual or entity on the preclusion list if:  

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in [42 C.F.R.] § 424.535(a)(3).  

(ii) The individual or entity is currently under a reenrollment bar under [42 C.F.R.] § 424.535(c).  

(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program. 

In determining whether conduct is detrimental to the best interests of the Medicare program, CMS considers:  

(i) the seriousness of the conduct underlying the revocation,

(ii) the degree to which that conduct could affect the integrity of the Medicare program,

(iii) and any other evidence that CMS deems relevant to its determination. 

CMS may also place an individual or entity on the preclusion list if:  

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 under this paragraph (3) 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, Preclusion list

When CMS made the decision to add Petitioner to the preclusion list, Petitioner was “revoked from Medicare” under 42 C.F.R. § 424.535(a)(3), (a)(4), and (a)(9).  CMS Exs. 3, 4.  Petitioner was also subject to a ten-year re-enrollment bar under 42 C.F.R. § 424.535(c).  CMS Ex. 3 at 3; CMS Ex. 4 at 4.  In addition, CMS determined that the conduct underlying Petitioner’s revocation is detrimental to the best interests of the

Page 21

Medicare program and therefore warranted placing Petitioner on the preclusion list.  CMS Ex. 1 at 7-10.  Specifically, CMS found the conduct underlying Petitioner’s revocation under 42 C.F.R. § 424.535(a)(3), (a)(4), and (a)(9) to be detrimental to the Medicare program.  CMS Ex. 1 at 7-10. 

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, DAB No. 2626 at 7; see also Pa. Physicians, P.C., DAB No. 2980 at 13 (2019). 

Here, CMS 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 deemed relevant to its determination.  42 C.F.R. § 422.2, Preclusion list.  In its reconsidered determination, CMS explicitly determined the basis for Petitioner’s revocation under section 424.535(a)(4) was detrimental to the best interests of the Medicare program, observing that: 

CMS finds [Petitioner’s] conduct to be very serious . . . [Petitioner’s] failure to disclose her felony conviction, despite clear instructions, calls her honesty, trustworthiness and willingness to abide by program rules and regulations into question . . . . Because [Petitioner] provided false information on her enrollment applications, she remained enrolled in the program inappropriately . . . . The integrity of the Medicare program is dependent upon the integrity and reliability of our partners.  As a result, CMS finds that [Petitioner’s] conduct could significantly affect the integrity of the Medicare program . . . . CMS also finds it relevant that [Petitioner] has a history of failing to disclose and report information . . . .Therefore, CMS finds that the totality of the facts and circumstances of [Petitioner’s] submission of false or misleading information, along with the other relevant information considered, indicates the conduct that led to the revocation of both [Petitioner’s] Florida and Hawaii Medicare enrollments under § 424.535(a)(4) is detrimental to the best interests of the Medicare program. 

CMS Ex. 1 at 8-9. 

Page 22

CMS also weighed these factors for the revocation under 42 C.F.R. § 424.535(a)(9), observing that:  

The conduct that led to the revocation of [Petitioner’s] Florida Medicare enrollment under § 424.535(a)(9) was her failure to report her felony conviction to CMS . . . . Failure to understand or comply with program requirements is very serious because CMS relies upon the most recent information reported to CMS by providers and suppliers . . . .[Petitioner’s] failure to report her felony conviction presents a risk to the integrity of the Medicare program . . . CMS relies on complete and accurate data on each provider and supplier to help confirm that they still meet all Medicare requirements and that Medicare payments are made correctly. . . . the submission of false information or the withholding of information relevant to the provider’s or supplier’s enrollment eligibility represents a significant program integrity risk . . . Therefore, CMS finds that the conduct that led to the revocation of [Petitioner’s] Florida Medicare enrollment pursuant to § 424.535(a)(9) is detrimental to the best interests of the Medicare program.  

CMS Ex. 1 at 9-10. 

CMS also placed Petitioner on the preclusion list due to her felony conviction within the previous 10 years that CMS deemed detrimental to the best interests of the Medicare program.  CMS found Petitioner’s offense to be severe based on the facts alleged and the court’s sentence, noted that it occurred approximately five years ago, and ultimately determined that her actions “jeopardize public confidence in Medicare providers and suppliers.”  CMS Ex. 1 at 7-8.  

Petitioner does not dispute that her Medicare billing privileges were revoked or that she was under a re-enrollment bar at the time of preclusion.  However, Petitioner, argues that CMS does not have the legal authority to revoke her billing privileges or place her on the preclusion list.  Petitioner contends that CMS’s decision to revoke “was concocted after CMS has made its decision,” and characterizes CMS’s determination as “unreasonable and non-judicious” because it failed to consider the specific facts and circumstances underlying her conviction.  P. Br. at 15-17. 

Although Petitioner may disagree with CMS’s determinations, CMS is not required to explain the reasons underlying its use of discretion.  See Ellefsen, DAB No. 2626 at 10. CMS need only identify the legal basis enabling its use of discretion.  Douglas Bradley, M.D., DAB No. 2663 at 13 (2015).  Moreover, to the extent that Petitioner’s argument

Page 23

would require review of CMS’s exercise of discretion to place her on the preclusion list, an ALJ is simply not authorized to review the reasonableness of CMS’s exercise of discretion.  See id. at 13 n.13 (Board explaining that “the reasonableness of CMS’s exercise of discretion is not a reviewable issue under any standard of review.”). 

The evidence shows that CMS considered the factors required by the regulations in determining whether Petitioner’s conduct is detrimental to the best interests of the Medicare program, including the seriousness of Petitioner’s conduct and the degree to which Petitioner’s conduct could impact the integrity of the Medicare program.  42 C.F.R. § 422.2, Preclusion list; see also 42 C.F.R. § 423.100.  Furthermore, Petitioner’s enrollment is revoked under 42 C.F.R. § 424.535(a)(3), (a)(4), and (a)(9), and Petitioner is subject to a ten-year reenrollment bar.  CMS considered the foregoing elements in the context of 42 C.F.R. §§ 422.2, 423.100 in deciding to place Petitioner on the preclusion list and articulated at length the reasons justifying its conclusions in the reconsidered determination.  CMS Ex. 1 at 7-10.  Therefore, CMS had a legal basis under 42 C.F.R. § 422.2 for placing Petitioner on the preclusion list effective June 28, 2022, the date of the reconsidered determination, until March 28, 2028, ten years from the date of Petitioner’s felony conviction.  42 C.F.R. § 422.222(a)(5)(iii).  

4.  Petitioner’s equitable arguments are not a basis to reverse CMS’s decision to revoke Petitioner’s Medicare privileges or to place her on the preclusion list. 

Petitioner argues in the alternative that she was not aware of the applicable laws, the revocation will adversely impact her ability to work in the field of optometry, and she will suffer a severe financial impact because she would be required to reimburse Medicare for all payments made since the date of her conviction.  P. Br. at 18.  Petitioner contends that the punishment is not proportionate to the conduct and additionally cites her good reputation amongst her colleagues and patients.  P. Br. at 19. 

To the extent Petitioner requests equitable relief, I am unable to grant it.  US Ultrasound, DAB No. 2302 at 8 (2010)( “Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  If CMS’s action is legally authorized, as found here, then it must be upheld.  Wendell Foo, M.D., DAB No. 2904 at 25 (2018) (The Board “has repeatedly confirmed that neither it nor the ALJs have authority to overturn a legally valid agency action on equitable grounds or otherwise grant equitable relief.”). 

Page 24

VIII.     Conclusion

CMS has established a legal basis to revoke Petitioner’s Medicare privileges and to include Petitioner on its preclusion list.  Therefore, the revocation of Petitioner’s Medicare privileges under 42 C.F.R. § 424.535(a)(3), (a)(4), and (a)(9), and the inclusion of Petitioner on the CMS Preclusion List, effective June 28, 2022, are affirmed. 

Endnotes

¹  Petitioner did not propose any witnesses, but did submit the written direct testimony of fifteen individuals, including herself, in the form of declarations.  P. Br. at 3; P. Exs. 7-21.

²  Requiring “the driver of any vehicle involved in a crash resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person” to give certain information and render reasonable assistance if apparently necessary or requested by the injured person.

³  http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0316/Sections/0316.062.html#:~:text=(1)%20The%20driver%20of%20any,shall%20upon%20request%20and%20if (last accessed March 11, 2024).

⁴  The scoresheet states that “[t]he Criminal Punishment Scoresheet Preparation Manual is available at:  http://www.dc.state.fl.us/pub/sen_cpcm/index.html”.  The link leads to the 
Florida Department of Corrections’ Scoresheet Preparation Manual, which provides that 
“‘Victim injury” is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing.’”  Scoresheet Preparation Manual at 9-10 (2019).

⁵  CMS offered as evidence a screenshot of the section in PECOs concerning final adverse legal actions, which a supplier would potentially encounter when filling out the section.  The page defines final adverse legal actions as including, among other things, “[a]ny crime, under Federal or State law, which received a sentence of deferred adjudication, adjudication withheld, stay of adjudication, withholding of judgment, or order of deferral . . . .”  CMS Ex. 14 at 1.

⁶  My conclusions of law appear as headings in bold italic type.  My findings of fact and analysis appear in the supporting text.

⁷  In discussing the provisions of the final rule for § 424.535, CMS stated that it may revoke a provider or supplier’s billing privileges if they are “convicted of a Federal or State felony offense that we determine to be detrimental to the best interests of the program as outlined in ‘Denial of Enrollment’ above.”  71 Fed. Reg. 20,754, 20,769 (April 21, 2006) (emphasis added).  In the Denial of Enrollment section, CMS explained that for “crimes against persons, such as rape, murder, kidnapping, assault and battery, robbery, and other similar crimes . . . We believe it is reasonable for the Medicare program to question the ability of the individual or entity with such a history to respect the life and property of program beneficiaries.”  71 Fed. Reg. at 20,760.

⁸  As noted above, CMS has determined these crimes to be detrimental to the best interests of the Medicare program.  See supra fn. 7 (citing 71 Fed. Reg. at 20,760).

⁹  https://www.cms.gov/medicare/cms-forms/cms-forms/downloads/cms855a.pdf at 18 (last accessed March 11, 2024)