Stephen C. White, M.D., DAB No. 3116 (2023)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Stephen C. White, M.D., (Petitioner) appeals the decision of an administrative law judge (ALJ) granting summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) in Stephen D. White, M.D., DAB CR5809 (2021) (ALJ Decision).¹   The ALJ upheld CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3).  The ALJ concluded that CMS had a legal basis for the revocation because (i) Petitioner was convicted of a felony offense within 10 years preceding the revocation, (ii) CMS determined that the felony offense (possession of a controlled substance) is detrimental to the best interests of the Medicare program and its beneficiaries, and (iii) Petitioner was “currently enrolled” in Medicare at the time of the revocation.  For the reasons explained below, we affirm the ALJ Decision. 

Legal Background

CMS is authorized under the Social Security Act (Act) to administer the enrollment of health care practitioners in Medicare through regulations promulgated by the Secretary of Health and Human Services (Secretary).  Act § 1866(j)(1)(A).²   The requirements for establishing and maintaining Medicare billing privileges are set forth in 42 C.F.R. Part 424, subpart P (sections 424.500-.570).  To participate in Medicare, physicians and other “suppliers” of health care services must be enrolled in the Medicare program.  42 C.F.R. §§ 424.500, 400.202 (defining “Supplier”), 424.502 (defining “Enroll/Enrollment”).  Enrollment confers on a supplier “billing privileges,” i.e., the right to claim and receive

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Medicare payment for health care services provided to program beneficiaries.  Id. §§ 424.500, 424.505. 

The Act gives the Secretary discretion to refuse to enter into a Medicare participation agreement or to terminate or refuse to renew an agreement with a physician or supplier who “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.”  Act § 1842(h)(8).  The Secretary delegated the authority to terminate a supplier’s Medicare billing privileges to CMS through 42 C.F.R. § 424.535.  CMS may revoke a “currently enrolled” supplier’s Medicare billing privileges for any of the reasons set forth in section 424.535(a), including the following:

(3) Felonies.

(i)  The . . . 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. 

(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.

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

(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that results in a conviction of criminal neglect or misconduct.

(D) Any felonies that would result in mandatory exclusion under section 1128(a) of the Act.

42 C.F.R. § 424.535(a)(3)(i)-(ii) (emphasis added).³ 

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For purposes of section 424.535(a)(3), the term “convicted” includes, among other things, when a court enters a judgment of conviction, when a court accepts an individual’s guilty plea, or when an individual has entered into a deferred adjudication or other program or arrangement where judgment of conviction has been withheld.  See 42 C.F.R. § 1001.2 (defining “Convicted”).

When a revocation is based on a felony conviction, the revocation’s effective date is the date of conviction.  Id. § 424.535(g).  A revoked provider is barred from participating in the Medicare program from the effective date of the revocation until the end of the reenrollment bar.  Id. § 424.535(c)(1).  At the time of the revocation here, CMS regulations set the reenrollment bar for a period between one and three years, depending on the severity of the basis for the revocation.  Id.

A supplier may appeal a revocation determination in accordance with the procedures in 42 C.F.R. Part 498.  The supplier must first request “reconsideration” of the initial revocation determination from a CMS hearing officer.  Id. §§ 498.5(1)(1), 498.22.  If dissatisfied with the reconsidered determination, the supplier may request a hearing before an ALJ.  Id. § 498.40.  A party dissatisfied with an ALJ’s decision may seek review by the Board.  Id. § 498.80. 

Case Background

The following facts are undisputed and drawn from the record evidence on which the ALJ made his decision. 

Petitioner is a physician who had been enrolled in Medicare in Texas.  CMS Ex. 3, at 1-7.  On or about November 2, 2010, Petitioner pled guilty to a felony offense of possession of a controlled substance (Tex. Health & Safety Code Ann. § 481.115(b)) in the 124th District Court of Gregg County, Texas (Texas Court).  CMS Ex. 1, at 38-40.  The Texas Court entered an Order of Deferred Adjudication (Order).  Id.  According to the Order, the Texas Court “received the plea and entered it of record.”  Id. at 39.  The Texas Court “admonished [Petitioner] as required by law,” and it “appeared to the Court that [Petitioner] … was aware of the consequences of this plea.”  Id.  Per the terms of the plea bargain, the Texas Court deferred the adjudication of guilt, placed Petitioner on community supervision for four years, and imposed a fine, court costs, and restitution.  Id. at 38-39.  The Texas Court noted that it heard the evidence and found the evidence “substantiates Petitioner’s guilt.”  Id. at 39.  The Texas Court further found it was in the “best interest of society and [Petitioner] to defer proceedings without entering an adjudication of guilt and to place [Petitioner] on community supervision.”  Id.  Thus, the Texas Court ordered “that no judgment shall be entered at this time” and that Petitioner was “placed on community supervision for the adjudged period so long as [Petitioner]

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abides by and does not violate the terms and conditions of community supervision.”  Id.⁴  Both the presiding judge and Petitioner signed the Order, and Petitioner’s thumbprint was affixed to the Order.  Id. at 40. 

By letter dated June 8, 2017, Noridian Healthcare Solutions (Noridian), a Medicare contractor, denied Petitioner’s application to enroll in Medicare in the State of Washington under 42 C.F.R. § 424.530(a)(3) based on Petitioner’s November 2010 felony conviction.  CMS Ex. 3, at 162-63.  An ALJ sustained the denial of Petitioner’s enrollment application, finding that CMS had a legitimate basis under section 424.530(a)(3) to deny enrollment because Petitioner was convicted of a felony offense that CMS determined to be detrimental to the best interests of the Medicare program and its beneficiaries.  See Stephen White, M.D., DAB CR5069 (2018) (a copy may be found at CMS Ex. 1, at 27-37).⁵ 

In Stephen White, M.D., DAB No. 2912 (2018), the Board affirmed the ALJ’s decision (CR5069) upholding CMS’s denial of Petitioner’s Medicare enrollment.  The Board determined that (i) the ALJ correctly decided that Petitioner’s guilty plea and deferred adjudication for felony drug possession established a qualifying felony conviction for purposes of denying enrollment under 42 C.F.R. § 424.530(a)(3), and (ii) the ALJ did not err by upholding CMS’s determination that Petitioner’s felony offense was detrimental to the Medicare program and its beneficiaries.  Id. at 12-17.⁶ 

By letter dated March 21, 2019, Novitas Solutions (Novitas), a different Medicare contractor, notified Petitioner that it revoked his Medicare billing privileges under 42 C.F.R. § 424.535(a)(3).  CMS Ex. 1, at 10-11.  Novitas explained that Petitioner’s billing privileges were revoked effective November 2, 2010, due to Petitioner’s felony conviction (as defined in 42 C.F.R. § 1001.2) for possession of a controlled substance in violation of Texas Health and Safety Code § 481.115(b).  Id. at 10.  Novitas imposed a three-year reenrollment bar beginning 30 days after the postmark date of the letter.  Id. at 11 (citing 42 C.F.R. § 424.535(c)). 

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By letter dated May 17, 2019, Petitioner requested reconsideration, arguing that he was not convicted of a felony and that his conduct was not detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 1, at 8-9.  On July 23, 2019, CMS issued a reconsidered determination, upholding Petitioner’s revocation under section 424.535(a)(3).  Id. at 1-7.  CMS explained that for purposes of revocation, a conviction includes a “deferred adjudication or other program or arrangement where judgment of conviction has been withheld.”  Id. at 3 (citing 42 C.F.R. §§ 424.535(a)(3) and 1001.2).  CMS found that Petitioner was convicted within the meaning of section 1001.2 because he pled guilty to a felony charge of possession of a controlled substance, he was placed into a community supervision program under an order of deferred adjudication by the Texas Court, and the Texas Court later dismissed the case after Petitioner completed his community supervision.  Id. at 2-4 (relying, in part, on the ALJ decision at CR5069).  

CMS also determined that Petitioner’s “felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries based on the particular circumstances surrounding it.”  Id. at 4.  CMS noted that the circumstances surrounding Petitioner’s conviction “involved his possession of one to four grams of crack and powdered cocaine” discovered in his hotel room because of an ongoing criminal investigation.  Id. (citing “Exhibit 6”).⁷   CMS acknowledged Petitioner’s argument “that during the time the events transpired in his life, [Petitioner] was not practicing medicine, and prior to his return to the practice of medicine, he had completed multiple programs to ensure his sobriety.”  CMS Ex. 1, at 3.  CMS found, however, that Petitioner’s “conviction of possessing a controlled substance involves disregard for abiding by laws and a lack of good judgment,” and that Petitioner’s “involvement with illegal drugs presents a danger to the health, safety and welfare of Medicare beneficiaries,” regardless of whether the events took place when Petitioner was practicing medicine.  Id. at 4.  CMS concluded that “the Medicare beneficiaries and Trust Funds may be at risk if [Petitioner] is allowed to continue to participate in the Medicare program.”  Id.⁸ 

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ALJ Proceedings and Decision

Petitioner requested a hearing before an ALJ.  In his request for hearing (RFH), Petitioner argued that he was not convicted of a felony within the meaning of 42 C.F.R. § 1001.2, and he challenged CMS’s determination that his offense was detrimental to the best interests of the Medicare program and its beneficiaries.  RFH at 1-3.  Specifically, Petitioner asserted that “his plea was never accepted, a finding of guilt was never made; he was never adjudged convicted; and his case was dismissed.”  Id. at 1.  While acknowledging that sections 1001.2(c) and (d) are relevant here, Petitioner asserted that there is no evidence that the Texas Court accepted his guilty plea and, moreover, there was no conviction to withhold because there was no finding of guilt.  Id. at 2 (“It is not possible to adjudicate conviction without a finding of guilt.”).  Petitioner also asserted that CMS made no showing of a nexus between Petitioner’s acts and the Medicare program or its beneficiaries, and he argued that “CMS fails to explain how Medicare beneficiaries could be in danger from a doctor who did not see the beneficiaries, and who was not practicing medicine.”  Id. at 3.  Petitioner asserted that CMS’s revocation decision was arbitrary and capricious and a “retaliatory act.”  Id. at 3-4.

CMS moved for summary judgment, arguing that based on Petitioner’s guilty plea he was convicted of a felony within the preceding 10 years for purposes of section 424.535(a)(3), and that CMS reasonably determined that the felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Mot. for Summ. J. at 6-8.  Petitioner filed a response, arguing that he was not convicted of a felony within the meaning of the applicable regulations and the offense is not one that is detrimental to Medicare or placed the program at immediate risk.  P. Resp. to CMS’s Mot. at 3-6.  

The ALJ raised the issue of Petitioner’s Medicare enrollment status, citing the June 2017 enrollment denial in Washington State.  Order to Respond at 1; Order to File Any Obj. at 4.  The ALJ questioned whether CMS had a basis to revoke given that Petitioner’s Medicare enrollment had been denied.  Petitioner asserted that he was not currently enrolled in Medicare and pointed out that his reassignment of benefits to his former business, Texoma Orthopedic and Spine, PLLC (PTAN TXB151486) had been terminated effective August 1, 2016.  P. Br. Re: Summ. J. at 2 (with Exhibits A & B).⁹   CMS then submitted enrollment information and declarations from M.H., CMS Director of the Division of Provider Enrollment Appeals (Director M.H.).  CMS Exs. 2, 3, 4.   CMS showed that at the time of the revocation determination in March 2019, Petitioner was individually enrolled in the Medicare program and had an active reassignment of benefits to a different entity, Orthopedics Texoma, LLC (PTAN 8F23757).  CMS Ex. 2, at 2 (¶ 5).

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The Enrollment Record Data Report submitted by CMS confirmed that Petitioner had a reassignment of benefits to Orthopedics Texoma, LLC (PTAN 8F23757) that was not revoked until March 21, 2019.  CMS Ex. 3, at 1, 4-5.  Director M.H. further explained that “[a] provider or supplier has a separate enrollment record for each state he or she is enrolled in,” and that Petitioner was already enrolled in Texas when he applied for enrollment in Washington State and remained enrolled in Texas after the enrollment denial in June 2017.  CMS Ex. 4, at 4 (¶ 10), 6 (¶ 15); see also CMS Ex. 2, at 2 (¶¶ 5-6).  In response, Petitioner made no request to cross-examine Director M.H., but argued that CMS “should have” deactivated his billing privileges related to PTAN 8F23757 because no claims were submitted under that number for 12 consecutive months.  P. Suppl. Br. at 2-3.

The ALJ granted summary judgment for CMS, sustaining its decision to revoke Petitioner’s enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3).  ALJ Decision at 1, 7-8.  The ALJ concluded that the undisputed facts establish that CMS had a legal basis for the revocation because (i) Petitioner was convicted of a felony within 10 years of the revocation, and (ii) CMS reasonably determined that the offense is detrimental to Medicare and its beneficiaries.  Id. at 7-8, 12-14.¹⁰   The ALJ found, based on uncontroverted evidence, that the Texas Court “clearly accepted Petitioner’s guilty plea and simply withheld the adjudication of guilt, while nevertheless imposing four years of community supervision (probation).”  Id. at 13 (citing CMS Ex. 1, at 38-39).  The ALJ concluded that Petitioner was “convicted” within the meaning of subsections 1001.2(c) and 1001.2(d) because Petitioner’s guilty plea was accepted by the Texas Court and Petitioner was granted a deferred adjudication on November 2, 2010.  Id. at 13.  The ALJ explained:  “The fact that Petitioner was eventually released from community supervision on June 26, 2012, and the criminal charge was dismissed (CMS Ex. 1 at 19), does not negate the undisputed facts that he pled guilty, the guilty plea was accepted, and he was granted deferred adjudication.”  Id. (citing White, DAB No. 2912, at 13).

The ALJ also found that CMS made the “case-by-case determination” that Petitioner’s felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  Id. at 14 (quoting CMS Ex. 1, at 4).  The ALJ noted that CMS is “granted the discretion to make this individualized determination,” even if the offense is not one of the listed offenses deemed to be per se detrimental.  Id.  The ALJ concluded that CMS’s determination in this regard is “not unreasonable,” noting that there is no evidence CMS failed to consider the seriousness of Petitioner’s offense or otherwise failed to properly exercise its discretion.  Id. (citing White, DAB No. 2912, at 16-17).

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The ALJ further concluded that despite the denial of Petitioner’s Medicare enrollment in Washington State in June 2017, there is no dispute that Petitioner remained enrolled in Medicare in Texas in March 2019.  ALJ Decision at 15-16 (explaining that CMS submitted uncontroverted evidence establishing that the denial of Petitioner’s Medicare enrollment application in Washington State had no effect on Petitioner’s existing Medicare enrollment in Texas) (citing CMS Exs. 2, 4).  The ALJ rejected Petitioner’s argument that CMS should have deactivated his billing privileges in Texas, noting that deactivation and revocation are different things and, even if CMS could have deactivated Petitioner’s billing privileges, that would not negate its authority to revoke Petitioner’s enrollment and billing privileges under section 424.535(a)(3).  Id.  The ALJ concluded, as a matter of law, that CMS was authorized to revoke Petitioner’s Medicare enrollment and billing privileges because Petitioner was “currently enrolled” in Medicare at the time of the revocation decision.  Id. (citing 42 C.F.R. § 424.535(a)). 

The ALJ also rejected Petitioner’s argument that the revocation was retaliatory and arbitrary and capricious, concluding that CMS acted within its authority to revoke and noting that the arbitrary and capricious standard of review is not applied in this administrative context.  Id. at 17 (citing NMS Healthcare of Hagerstown, DAB No. 2603, at 5-6 (2014)).  The ALJ further noted:  “To the extent Petitioner’s arguments are requests for equitable relief, I have no authority … to substitute my judgment and void the revocation based on equitable considerations.”  Id. (citing US Ultrasound, DAB No. 2302, at 8 (2010)).¹¹ 

Standard of Review

Whether summary judgment is appropriate is a legal issue that we review de novo.  1866ICPayday.com, DAB No. 2289, at 2 (2009) (citing Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004)).  Summary judgment is appropriate if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.  Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).  In reviewing whether there is a genuine dispute of material fact for purposes of summary judgment, the Board views the proffered evidence in the light most favorable to the non-moving party.  See Patrick Brueggeman, D.P.M., DAB No. 2725, at 6 (2016).

The Board’s standard of review on a disputed issue of law is whether the ALJ’s decision is erroneous.  Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), accessible at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html.

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Analysis

Petitioner filed a Request for Review (RR) challenging the ALJ’s findings of fact and conclusions of law.  Before the Board, Petitioner argues that CMS was not entitled to summary judgment because:  (i) Petitioner was not convicted of a felony offense within the meaning of 42 C.F.R. § 1001.2 (RR at 2‑7); (ii) CMS’s determination that Petitioner’s offense is detrimental to Medicare and its beneficiaries is unfounded (RR at 7-10); and (iii) Petitioner had no billing privileges to revoke (RR at 10).  For the reasons explained below, we reject each of Petitioner’s arguments and affirm the ALJ Decision because there is no genuine dispute of material fact and CMS is entitled to judgment as a matter of law.

I.         Petitioner was “convicted” of a felony offense within the meaning of 42 C.F.R. § 1001.2.

On review of a determination to revoke a Medicare supplier’s billing privileges, an ALJ and the Board “decide only whether CMS has established a lawful basis for the revocation.”  Cornelius M. Donohue, DPM, DAB No. 2888, at 4 (2018).  Revocation of a physician’s billing privileges under 42 C.F.R. § 424.535(a)(3) is authorized if two conditions are met:  (i) the 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”; and (ii) the conviction was for an “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); Pa. Physicians, P.C., DAB No. 2980, at 5 (2019).  If the regulatory elements for revocation are satisfied, “then the revocation must be sustained.”  Douglas Bradley, M.D., DAB No. 2663, at 13 (2015) (internal quotations and citation omitted).

Petitioner argues that he was not convicted within the meaning of 42 C.F.R. § 1001.2.  RR at 2.  This same issue was previously resolved by the Board in White, DAB No. 2912, at 12-13.  As the Board previously held, “[t]he definition of ‘convicted’ in section 1001.2 includes the very outcome of the charges lodged against Petitioner in this case:  deferred adjudication where judgment of conviction has been withheld.”  Id. at 13 (describing the Texas Court’s acceptance of Petitioner’s guilty plea and subsequent order of deferred adjudication).  Thus, the Board concluded that Petitioner was convicted of a felony within the meaning of section 1001.2.  Id.  Both section 424.530(a)(3), addressing Medicare enrollment denials, and section 424.535(a)(3), addressing revocations, invoke the same definition of “convicted” set forth in section 1001.2.  Thus, the Board’s determination that Petitioner was convicted of a felony in DAB No. 2912 is binding on Petitioner and applies with equal force here.

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Petitioner’s efforts to distinguish the Board’s decisions in Kimberly Shipper, P.A., DAB No. 2804 (2017), and Denis McGinty, PT, DAB No. 2838 (2017), are also unavailing.¹²   Here, as in both Shipper and McGinty, the Texas court received a guilty plea and entered a deferred adjudication order, which meets the definition of “convicted” under section 1001.2.  Shipper at 5-6; McGinty at 7-8.  Petitioner’s recitation of the facts of Shipper and McGinty fails to establish any meaningful distinction that would warrant a different outcome here.  RR at 4. 

In Shipper, the Board found that the state court’s receipt and entry of a guilty plea into the record constituted a conviction under the precise wording of section 1001.2(c), and that there is no logic in any distinction between “accepting” and “receiving” a guilty plea.  Shipper at 5.  Likewise, in McGinty, the Board found the definition of conviction was met where a guilty plea was entered and received by the court.  McGinty at 8.  Here, it is undisputed that Petitioner pled guilty to a felony offense in the Texas Court, which “received [Petitioner’s] plea and entered it of record.”  CMS Ex. 1, at 38-39.  This is unquestionably a conviction within the meaning of section 1001.2(c).

Petitioner argues that the actual guilty plea and not just a reference thereto must be made part of the Texas Court’s record and that Texas Criminal Procedure requires certain admonishments prior to accepting a guilty plea, at least one of which must be done in writing and signed by the defendant.  RR at 5.  However, as noted above, section 1001.2(c) only requires that the court accept the guilty plea, which the Order plainly establishes.  Petitioner presented no evidence that the Texas Court did not accept his guilty plea.  Petitioner further fails to address the uncontroverted fact that he was admonished, as required by law, and he signed and affixed his thumbprint to the Order.  CMS Ex. 1, at 39-40.  Petitioner presented no evidence challenging the accuracy of the Order, which establishes a conviction within the meaning of section 1001.2(c).  Petitioner’s further assertion that a copy of the actual guilty plea is necessary to establish the undisputed facts of the Order is without basis in the Act § 1842(h)(8), 42 C.F.R. § 424.535, and 42 C.F.R. § 1001.2, and Petitioner has not cited any federal authority in this regard.  Federal law, not state law, controls the meaning of “conviction” in this context.  Shipper at 7; McGinty at 9.

Petitioner was also “convicted” within the meaning of section 1001.2(d).  Petitioner argues that a conviction is not possible because the Texas Court withheld adjudication of guilt and did not enter judgment.  RR at 6 (“If the Court refuses to enter an adjudication

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of guilt, conviction is not a possibility.”).  However, the Board’s conclusions in Shipper and McGinty directly refute Petitioner’s assertion.  In both cases, the Board concluded that Texas deferred adjudication orders (like the one here) that withheld adjudication of guilt and did not enter judgment met the definition of “convicted” under section 1001.2(d).  See Shipper at 2, 6; McGinty at 2, 7-8. 

The Order in Petitioner’s case closely resembles the orders of deferred adjudication described in Shipper and McGinty.  In Shipper, the Texas court did not enter judgment but instead ordered community supervision, and the defendant signed the order, acknowledging that failure to abide by the conditions of community supervision may result in adjudication of guilt.  Shipper at 6.  In McGinty, the Texas court found there was sufficient evidence to support the guilty plea, ordered community supervision, and “deferred further proceedings without an adjudication of guilt.”  McGinty at 2.  Likewise, here, no “adjudication of guilt” or judgment of conviction was to be entered by the Texas Court, so long as Petitioner abided by the terms and conditions of community supervision.  CMS Ex. 1, at 39.  That arrangement constitutes a “deferred adjudication,” which plainly falls within the scope of section 1001.2(d).  Thus, the uncontroverted facts establish that Petitioner was convicted within the meaning of section 1001.2(d) based on the Order, regardless of any subsequent action by the Texas Court, including the dismissal after Petitioner’s community supervision was discharged.  CMS Ex. 1, at 19.

Petitioner further argues that unlike his felony offense, “[b]oth McGinty and Shipper involved crimes against persons.”  RR at 5.  Petitioner asserts, for the first time before the Board, that the inclusion of “guilty pleas” in the language of subsections 42 C.F.R. § 424.535(a)(3)(ii)(A) and (B), but the exclusion of the same from (C) and (D), means that only guilty pleas for felony crimes against persons and financial crimes constitute “convictions” within the meaning of the regulation.  RR at 5; P. Reply at 3.  Petitioner is not permitted to raise new arguments for the first time before the Board.  See Jason R. Bailey, M.D., P.A., DAB No. 2855, at 12 (2018) (“A party appearing before the Board is not permitted to raise on appeal issues that could have been raised before the ALJ but were not.”); see also the Board’s Guidelines, “Completion of the Review Process,” ¶ (a) (the Board “will not consider issues . . . which could have been presented to the ALJ but were not”); ACT for Health, Inc., DAB No. 1972, at 5 (2005) (explaining that the bar on raising issues not presented to the ALJ as specified in the Guidelines “mirrors the rule applied in federal appellate courts, which generally refuse to consider issues or arguments raised for the first time on appeal”).  Since Petitioner did not raise this argument below and has not shown that he could not have done so, the argument is not properly before us. 

Even if the issue were properly before the Board, Petitioner’s regulatory interpretation has no merit.  Section 424.535(a)(3)(ii)(A)-(D) provides separate bases to find that a supplier has been “convicted,” apart from section 424.535(a)(3)(i), which incorporates the definition of “convicted” provided in section 1001.2.  Here, it is only necessary to determine whether Petitioner was “convicted” within the meaning of section 1001.2.  As

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the Board explained in Shipper, “the Medicare enrollment regulations define the term ‘convicted’ to encompass multiple circumstances, including a guilty plea or adjudicated pretrial diversion for a felony against a person, 42 C.F.R. § 424.535(a)(3)(ii)(A); a ‘Federal, State or local’ court’s acceptance of a guilty plea, 42 C.F.R. § 1001.2(c); or a ‘deferred adjudication or other program or arrangement where judgment of conviction has been withheld,’ 42 C.F.R. § 1001.2(d).”  Shipper at 7; see also McGinty at 10 (“That the term ‘convicted’ is defined more expansively under the Act and regulations than under some state criminal laws reasonably reflects the different objectives of the federal civil laws and state criminal laws.”).

Here, the issue is whether Petitioner was “convicted” within the meaning of 42 C.F.R. § 1001.2.  The undisputed facts establish that in November 2010, Petitioner was “convicted” within the meaning of section 1001.2(c) because the Texas Court accepted his guilty plea, and Petitioner was “convicted” within the meaning of section 1001.2(d) because Petitioner entered into a deferred adjudication arrangement where judgment of conviction had been withheld.

II.        CMS lawfully determined Petitioner’s felony offense was detrimental to the best interests of the Medicare program and its beneficiaries.

Having determined that Petitioner was (within 10 years preceding the revocation) convicted of a felony within the meaning of section 1001.2, the remaining question is whether CMS lawfully determined that Petitioner’s felony offense “is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.535(a)(3)(i).  Before the ALJ, CMS did not rely on the listing of per se detrimental offenses in section 424.535(a)(3)(ii), but “made the case-by-case determination that Petitioner’s offense was detrimental to the interests of Medicare and its beneficiaries.”  ALJ Decision at 14.  “[T]he Board has repeatedly held that if the conviction is for a crime other than one of the felonies enumerated in the regulations, CMS may make the determination, on a case-by-case basis, whether the felony conviction at issue is detrimental to the Medicare program and its beneficiaries.”  White, DAB No. 2912, at 15 (collecting cases); see also Eva Orticio Villamor-Goubeaux, DAB No. 2997, at 8 (2020) (“[Section] 424.535(a)(3)(i) authorizes CMS to determine on a case-by-case, adjudicative basis whether a felony, even one that does not fall within any named category of felony offenses, is detrimental to the Medicare program and its beneficiaries.”); Michael Scott Edwards, OD, and M. Scott Edwards, OD, PA, DAB No. 2975, at 9 (2019) (“CMS has the authority to determine on a case-by case basis whether a felony crime that is not identified in the regulations is detrimental to the best interests of the Medicare program.”).

Moreover, when CMS revised the Medicare regulations (effective February 3, 2015), it expressly declined to exclude “felonies relating to drugs, alcohol, or traffic violations” from the purview of section 424.535(a)(3)(i).  See Preamble to the Final Rule revising the

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Medicare Program Requirements for Providers and Suppliers to Establish and Maintain Medicare Enrollment, 79 Fed. Reg. 72,500, 72,510 (Dec. 5, 2014).  CMS expressly rejected the notion that “felonies relating to drugs, alcohol, or traffic violations cannot be detrimental to the best interests of Medicare beneficiaries and thus should be automatically excluded from the purview of §§ 424.530(a)(3) and 424.535(a)(3).”  Id.  CMS emphasized that “considering the very serious nature of any felony conviction, our authority in §§ 424.530(a)(3)(i) and 424.535(a)(3)(i) should not be restricted to the categories of felonies identified in (a)(3)(i).”  Id. at 72,509-10.  Thus, CMS “modif[ied] the list of felonies in each section such that any felony conviction that [CMS] determine[s] to be detrimental to the best interests of the Medicare program and its beneficiaries would constitute a basis for denial or revocation.”  Id. at 72,509, 72,512.  CMS further explained that it takes the severity of the underlying offense into account when determining whether denial or revocation is warranted, and that “[e]ach case will be carefully reviewed on its own merits and . . . [CMS] will act judiciously and with reasonableness in [its] determinations.”  Id. at 72,510.  CMS also saw the “need for flexibility with respect to the application of §§ 424.530(a)(3)(i) and 424.535(a)(3)(i).” Id. The regulations, therefore, clearly permit CMS to conclude, based on the facts of a particular case, that felony drug possession is detrimental to the Medicare program and establishes a legal basis for revocation.  Cf. White, DAB No. 2912, at 16.

In its reconsidered determination, CMS specifically addressed its conclusion that Petitioner’s felony offense was detrimental to the best interests of the Medicare program and its beneficiaries, stating:

CMS also finds that Dr. White’s felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries based on the particular circumstances surrounding it.  First, because Dr. White’s conviction of possessing a controlled substance involves disregard for abiding by laws and a lack of good judgment.  The circumstances surrounding Dr. White’s conviction involved his possession of one to four grams of crack and powdered cocaine, which was discovered in Dr. White’s hotel room as a result of an ongoing investigation conducted by the Gregg County Organized Drug Enforcement (see Exhibit 6).  Additionally, Dr. White’s involvement with illegal drugs present[s] a danger to the health, safety and welfare of Medicare beneficiaries, regardless of Dr. White’s argument that these events took place during a time when he was not practicing medicine.

CMS Ex. 1, at 4.  The ALJ found that this determination by CMS is “not unreasonable,” noting that Petitioner presented no evidence that CMS failed to consider the seriousness of his offense or otherwise failed to properly exercise its discretion.  ALJ Decision at 14 (citing White, DAB No. 2912, at 16-17).

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Petitioner argues that CMS’s determination that his felony offense was detrimental to the Medicare program and its beneficiaries was “patently and facially unreasonable; failed to consider the circumstances surrounding the offense; and was an improper exercise of discretion.”  RR at 8.  Petitioner complains that CMS’s contention that his felony offense “involves disregard for abiding by laws and lack of good judgment” applies to “virtually all transgressions of the law.”  Id. at 7.  Petitioner further argues that CMS did not show a “nexus” between his felony drug offense and any detriment to Medicare given that his offense took place at a time when he was not practicing medicine or treating Medicare beneficiaries.  Id. at 7-8.

As noted above, the Board previously affirmed, in the context of Petitioner’s enrollment appeal, CMS’s determination that Petitioner’s felony drug offense was detrimental to the Medicare program and its beneficiaries.  White, DAB No. 2912, at 14-17.  That holding applies with equal force here.  Both section 424.530(a)(3), addressing enrollment denials, and section 424.535(a)(3), addressing revocations, provide that CMS determines whether a felony offense “is detrimental to the best interests of the Medicare program and its beneficiaries.”  Petitioner has not produced any evidence to show that CMS failed to consider the severity of his felony offense or that it otherwise failed to exercise its discretion in reaching its determination that Petitioner’s felony offense is detrimental to the Medicare program or its beneficiaries.  See White, DAB No. 2912, at 16. 

Moreover, Petitioner’s assertion that his felony offense did not occur while he was actively practicing medicine or treating Medicare beneficiaries does not, in any way, negate CMS’s concerns about the seriousness of his offense.  The regulations do not require CMS to show that Petitioner’s offense occurred in connection with the practice of medicine or resulted in actual harm to Medicare beneficiaries.  Rather, the “essential question” is whether CMS determined that the felony offense “poses a risk to the best interests of the Medicare program.”  See Edwards at 10-11 (concluding that CMS determined that petitioner’s felony obstruction of justice offense in connection with political campaign contributions was detrimental to the Medicare program and its beneficiaries); see also Villamor-Goubeaux at 9-11 (concluding that CMS determined that petitioner’s felony interference with custody offense in connection with a domestic relations dispute was detrimental to the Medicare program and its beneficiaries).    

Here, CMS determined that Petitioner’s involvement with illegal drugs, including crack cocaine and powder cocaine, demonstrates a lack of good judgment, and a disregard for the law, as well as for the health and safety of himself and others.  CMS’s concern about such conduct is not unfounded.  The nature of Petitioner’s offense indicates, at the very least, a willingness to knowingly violate the law, thus raising concerns about Petitioner’s ability to participate in the Medicare program as a supplier who understands the importance of complying with supplier requirements and complies with them.  See 71 Fed. Reg. 20,754, 20,758, 20,773-74 (Apr. 21, 2006) (explaining that the central purpose of the enrollment provisions is to protect beneficiaries and the Medicare Trust Funds and,

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to that end, CMS is thus concerned about maintaining the integrity of the program).  As CMS explained, the enrollment provisions are based on the understanding that “there is a relationship between fulfilling the requirements stipulated in the Medicare program statutes and related laws, the integrity of the provider and supplier, the quality of care furnished to Medicare beneficiaries, and the confidence of the public in the Medicare program.”  Id. at 20,758.  Given these concerns, we find no error in the ALJ’s conclusion that CMS reasonably determined that Petitioner’s felony drug offense is detrimental to the best interests of the Medicare program and its beneficiaries.  Cf. White,  DAB No. 2912, at 15 (“CMS’s finding of a nexus between the Medicare program and Petitioner’s felony drug possession conviction is not unreasonable.”).¹³  

Petitioner further asserts that CMS “ignored” various circumstances that allegedly developed after his conviction, including his “subsequent sobriety,” that his “medical board supervision was shortened,” that he “was subsequently licensed to practice medicine in Oklahoma and Washington,” and that he “practiced medicine for nearly a decade since the offense without showing any detriment whatsoever to Medicare beneficiaries.”  RR at 8.  As a preliminary matter, we note that Petitioner does not point to any record evidence to support these contentions.  Id.¹⁴  Petitioner’s counsel made these assertions in the request for reconsideration (CMS Ex. 1, at 8-9) and in subsequent briefing, but attorney argument is not evidence.  See Atty’s Parti Expo, Inc., DAB No. 2925, at 8 (2019) (“[A]rguments by counsel are not evidence.”); see also Nebraska Dept. of Health, DAB No. 373, at 4 (1982).  Still further, none of these alleged contentions, even if true, are relevant to any issue before the Board.  “While Petitioner’s efforts to recover from drug addiction are laudable, … [t]he only issue before the ALJ was whether CMS had established a ‘legal basis for its actions.’”  White, DAB No. 2912, at 14 (citing Letantia Bussell, M.D., DAB No. 2196, at 13 (2008)).  The alleged facts and circumstances that unfolded after Petitioner’s felony conviction do not show that the offense itself is not detrimental to the best interests of the Medicare program or that CMS’s determination in that regard was unreasonable.

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Moreover, to the extent that these subsequent events are intended to challenge CMS’s discretionary decision to revoke, “neither the administrative law judge nor the Board may substitute its discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.”  Bradley, DAB No. 2663, at 13 (internal quotation marks omitted); see also Meadowmere Emergency Physicians, PLLC, DAB No. 2881, at 8-9 (2018) (“[W]hile CMS may have discretion to consider unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority, ALJs and the Board may not substitute their discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.” (internal quotation marks and brackets omitted)).  “Once CMS, in exercising its discretion, proceeds with revocation because, as it determined here, the supplier’s crime is detrimental to the Medicare program and its beneficiaries, on appeal, the ALJ and the Board must uphold the revocation if there is a legal basis for revocation.”  Daniel Wiltz, M.D., DAB No. 2864, at 12 (2018).

None of the circumstances Petitioner alleges, such as his subsequent sobriety, subsequent compliance with state-imposed probation requirements, subsequent medical licensing, and subsequent treatment of Medicare beneficiaries without detriment, show that CMS lacked a lawful basis for the revocation.  Such circumstances “have no bearing on the question of whether there is or is not a legal basis for revocation under subsection 424.535(a)(3).”  See Wiltz at 12 (rejecting contention that physician’s compliance with court-imposed sentencing requirements following felony conviction should be considered to overturn revocation); see also Fayad, DAB No. 2266, at 15-16 (rejecting contention that physician’s exercise of Medicare billing privileges without incident or complaints and adherence to Medicare and Medicaid policies should be considered to overturn revocation based on felony conviction).  We conclude that the regulatory elements in section 424.535(a)(3)(i) are met in this case and, therefore, must sustain the revocation regardless of other factors that CMS might reasonably have weighed in exercising its discretion to revoke.  See Fayad at 16; see also Wiltz at 12.¹⁵ 

Petitioner further contends that “[t]he timing of the revocation action by CMS is clearly retaliatory and is intended to apply pressure on [Petitioner] in the form of additional monetary penalties.”  RR at 11.  Petitioner’s allegation of retaliation is not supported by any evidence and has no merit.  The Medicare statute and regulations do not limit CMS’s authority to revoke based on any prior action or inaction by CMS with respect to a supplier’s enrollment status.  See Blair Allen Nelson, M.D., DAB 3024, at 12 (2020)

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(citing Horace Bledsoe, M.D., DAB No. 2753, at 9 (2016)).  Thus, the timing of CMS’s revocation determination in relation to Petitioner’s enrollment denial and subsequent appeal has no bearing on this matter.  CMS may revoke at any time based on a felony conviction when the regulatory elements in section 424.535(a)(3) are satisfied.  Nelson at 12.  The only legally mandated time limit is the requirement that the conviction occur “within the preceding 10 years.”  Id. (citing 42 C.F.R. § 424.535(a)(3)); see also Donohue at 9.  Here, there is no dispute that Petitioner’s conviction occurred within ten years of CMS’s revocation determination. 

Finally, to the extent Petitioner contends his revocation should be set aside on equitable grounds, such as laches or estoppel, such an argument cannot be sustained.  Nelson at 12 (citing Donna Maneice, M.D., DAB No. 2826, at 7-8 (2017) (“[N]either the ALJ nor the Board has authority to reverse an authorized revocation for reasons of equity.”)).  “CMS is authorized to revoke a supplier’s Medicare billing privileges . . . ‘based solely on a qualifying felony conviction, without regard to equitable or other factors.’”  Id.

For all these reasons, we affirm the ALJ’s conclusion that CMS had a legal basis under section 424.535(a)(3) to revoke Petitioner’s Medicare enrollment and billing privileges.

III.      Petitioner was “currently enrolled” in the Medicare program at the time of the revocation decision.

Petitioner argues that revocation was not authorized under section 424.535(a) because he had no Medicare billing privileges to revoke.  RR at 9-10.  The ALJ rejected this argument, finding there is no dispute that Petitioner remained enrolled in Medicare in Texas in March 2019, and concluded, as a matter of law, that CMS was authorized to revoke Petitioner’s Medicare enrollment and billing privileges because Petitioner was “currently enrolled” in Medicare at the time of the revocation decision.  ALJ Decision at 15-16 (citing 42 C.F.R. § 424.535(a)).  We affirm the ALJ’s determination because the uncontroverted evidence establishes that at the time of the revocation, Petitioner was enrolled in Medicare with billing privileges in Texas, regardless of whether he was actively billing Medicare.

CMS Director M.H. confirmed that at the time of the revocation determination, Petitioner was individually enrolled in the Medicare program and had an active reassignment of benefits to Orthopedics Texoma, LLC (PTAN 8F23757).  CMS Ex. 2, at 2 (¶ 5).  Director M.H. further confirmed that Petitioner was already enrolled in Texas when he applied for enrollment in Washington State and remained enrolled in Texas after the June 2017 enrollment denial.  CMS Ex. 2, at 2 (¶¶ 5-6); CMS Ex. 4, at 6 (¶ 15).  As Director M.H. explained, “[a] provider or supplier has a separate enrollment record for each state he or she is enrolled in.”  CMS Ex. 4, at 4 (¶ 10).  CMS’s Enrollment Record Data Report further confirmed that Petitioner was enrolled in Medicare and had a reassignment of

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benefits to Orthopedics Texoma, LLC (PTAN 8F23757) that was not revoked until March 21, 2019.  CMS Ex. 3, at 1, 4-5.

Petitioner presented no evidence challenging the accuracy of CMS’s enrollment data or the declarations of CMS Director M.H.  Nor does Petitioner deny that his Medicare enrollment and billing privileges remained active in Texas until CMS’s revocation decision.  Instead, Petitioner asserts that CMS “should have” deactivated his billing privileges in connection with PTAN 8F23757 because they were not being used.  RR at 9-10.  However, even if CMS had deactivated Petitioner’s billing privileges, he would have remained enrolled in Medicare.  The regulations make clear that deactivation is not revocation, as deactivation means that a supplier’s billing privileges are paused but can be restored, and revocation means that billing privileges are terminated.  42 C.F.R.§ 424.502.  Thus, even if CMS had deactivated Petitioner’s billing privileges, that would not negate CMS’s authority to revoke Petitioner’s enrollment and billing privileges under section 424.535(a)(3).

Here, the undisputed facts establish that Petitioner was “currently enrolled” in Medicare at the time of the revocation, and that CMS had a legal basis to revoke Petitioner’s Medicare billing privileges under section 424.535(a)(3).

Conclusion

We affirm the ALJ Decision.

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Endnotes

¹  Petitioner’s legal name is Stephen Curtis White and, as Petitioner’s counsel explained, the caption of the ALJ Decision identified Petitioner as “Stephen D. White” due to a typographical error.  Letter to the Board, dated July 27, 2023.  We refer to Petitioner as “Stephen C. White, M.D.” consistent with Petitioner’s legal name and Medicare enrollment information previously submitted to CMS.  CMS Ex. 3, at 1, 13, 21.

²  The current version of the Act can be found at http://www.socialsecurity.gov/OP_Home/ssact/ssact-toc.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.  Cross-reference tables for the Act and the United States Code can be found at http://uscode.house.gov/table3/1935_531.htm and https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.

³  We cite to and apply the regulations in effect on March 21, 2019, the date of the initial revocation determination at issue.  See Dennis McGinty, PT, DAB No. 2838, at 6 n.7 (2017).

⁴  The precise terms and conditions of Petitioner’s community supervision were not made part of the record; however, it appears the Texas Court, on Petitioner’s motion, terminated the community supervision and dismissed the criminal case in June 2012.  CMS Ex. 1, at 19.

⁵  Noridian also denied enrollment under 42 C.F.R. § 424.530(a)(4) based on Petitioner’s failure to report the guilty plea on his enrollment application.  CMS Ex. 3, at 162.  The ALJ in CR5069 determined that because CMS had a legitimate basis to deny enrollment based on section 424.530(a)(3), there was no need to decide whether CMS had a separate lawful basis to deny enrollment under section 424.530(a)(4).  CMS Ex. 1, at 37.

⁶  DAB No. 2912 is currently on appeal in White v. Azar, No. 2:19-cv-00037-SAB (E.D. Wash. Jan. 24, 2019), which is stayed pending the outcome of this appeal before the Board.

⁷  The reference to “Exhibit 6” by CMS is an April 2007 news report titled “Longview Doctor Arrested for Drug Possession,” which reported that Petitioner, who had in the past worked at two area hospitals, was “taken into custody [at a local motel and] accused of possessing crack, cocaine, and pills” as part of a “code operation.”  CMS Ex. 1, at 2 (listing exhibits), 20-22 (report).  The news report noted that Petitioner had previously been arrested on similar charges.  Id. at 20.  Petitioner did not dispute the accuracy of the news report in proceedings before the ALJ. 

⁸  In its reconsidered determination, CMS separately found Petitioner’s felony offense to be “akin” to certain offenses that CMS has determined to be per se detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 1, at 4 (citing 42 C.F.R. § 424.535(a)(3)(ii)(D)).  Before the ALJ, CMS did not rely on any of the per se detrimental offenses under section 424.535(a)(3)(ii) to establish a basis for Petitioner’s revocation and, therefore, we do not review that issue here.  See ALJ Decision at 10 n.10, 14.

⁹  When CMS grants billing privileges to a supplier (such as a physician or physicians organization), it issues a billing number known as a Provider Transaction Access Number (PTAN), which is used by Medicare’s claims processing system to identify the physician as an enrolled supplier and ensure that proper payments are made.”  Richard Weinberger, M.D., and Barbara Vizy, M.D., DAB No. 2823, at 3 (2017).

¹⁰  The ALJ also determined that Petitioner is barred by collateral estoppel from relitigating these issues given the Board’s decision in Stephen White, M.D., DAB No. 2912 (2018).  ALJ Decision at 10-12.  While we agree that the Board previously decided these same issues in DAB No. 2912, we do not address the ALJ’s application of collateral estoppel because it is not necessary to reach a decision in this matter.  

¹¹  The ALJ also determined that the effective date of the revocation is the date of Petitioner’s conviction (November 2, 2010) and that the duration of the three-year reenrollment bar is not reviewable by the ALJ.  ALJ Decision at 17-18 (citing 42 C.F.R. § 424.535(g) and Vijendra Dave, M.D., DAB No. 2672, at 10-11 (2016)).  Petitioner does not challenge either of these determinations on appeal.

¹²  Both Shipper and McGinty were subsequently affirmed.  See Shipper v. Price, No. 6:17-CV-00253, 2019 WL 2098120 (W.D. Tex. Mar. 1, 2019) (Order Adopting Magistrate R. & R. at 2019 WL 1029118 (W.D. Tex. Feb. 11, 2019)); McGinty v. Azar, No. 3:18-cv-359-S, 2019 WL 3034596 (N.D. Tex. July 11, 2019) (Order Accepting Findings, Conclusions, and Recommendation of the United States Magistrate Judge at 2019 WL 3044183 (N.D. Tex. May 15, 2019)). 

¹³  CMS’s determination that Petitioner’s offense was “detrimental to the best interests” of the Medicare program is “distinct from the decision to revoke because CMS could have refrained from revoking Petitioner’s billing privileges despite its determination that the crime was detrimental to Medicare.”  Fady Fayad, M.D., DAB No. 2266, at 16 (2009), aff’d, Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011).  As further discussed below, if there is a legal basis for the revocation, neither an ALJ nor the Board may review CMS’s discretionary determination to revoke.

¹⁴    The record reflects that in August 2008, Petitioner acknowledged before the Texas Medical Board that after self-reporting his cocaine use three years earlier, his privileges at East Texas Medical Center were suspended, he was subsequently arrested three times for possession, and his Texas medical license was temporarily suspended without notice.  CMS Ex. 3, at 97 (¶¶ 5-6).  In December 2008, the Texas Medical Board determined that Petitioner’s medical license would remain suspended, but stayed that suspension and placed Petitioner on probation for fifteen years subject to various terms, conditions, and restrictions, including supervision and monitoring.  CMS Ex. 3, at 102-111.  Contrary to Petitioner’s assertion, CMS did consider Petitioner’s unsupported contention that he “had completed multiple programs to ensure his sobriety,” but nevertheless determined that his felony drug offense was detrimental to the Medicare program and its beneficiaries.  CMS Ex. 1, at 3-4.

¹⁵  Petitioner further asserts that CMS improperly exercised its discretion, citing to a portion of the prior ALJ’s decision in White, DAB CR5069.  RR at 9.  However, ALJ decisions are not precedential or binding on other ALJs or the Board.  See Donohue, DAB No. 2888, at 7.  Further, Petitioner failed to acknowledge that ALJ Bill Thomas ultimately concluded that CMS reasonably determined Petitioner’s felony offense was detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 1, at 35.