Tammy Dobbin, APN and Ebony Wellness, LLC, DAB No. 3136 (2024)

FINAL DECISION ON REVIEW OF 
ADMINISTRATIVE LAW JUDGE DECISION

Tammy Dobbin, APN (Ms. Dobbin) and Ebony Wellness, LLC (Ebony Wellness) (collectively, Petitioners) appeal the decision of an administrative law judge (ALJ) in Tammy Dobbin, APN and Ebony Wellness, LLC, DAB CR6316 (2023) (ALJ Decision).  The ALJ upheld determinations of the Centers for Medicare & Medicaid Services (CMS) to revoke each Petitioners’ Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) based on Ms. Dobbin’s felony conviction for bank fraud, and under 42 C.F.R. § 424.535(a)(4) because Petitioners certified as “true” false information on their Medicare enrollment applications.  The ALJ further upheld CMS’s decision to place Petitioners on the preclusion list related to Medicare Parts C and D.  We affirm the ALJ Decision for the reasons explained below.

Legal Background

To participate in Medicare, health care providers and suppliers must be enrolled in the program.  42 C.F.R. § 424.500.  A nurse practitioner, such as Ms. Dobbin, and her practice, Ebony Wellness, are considered suppliers.  Id. § 400.202 (defining “Supplier”).  Enrollment confers “billing privileges,” that is, the right to claim and receive payment for health care services provided to Medicare beneficiaries.  Id. §§ 424.502, 424.505.  CMS regulations in 42 C.F.R. Part 424, Subpart P establish requirements for enrolling in Medicare and for maintaining enrollment in the program.

To enroll in Medicare, a supplier must submit an “enrollment application” to CMS.  See 42 C.F.R. § 424.510(a), (d)(1).  The term “enrollment application” is defined to mean the “CMS-approved paper enrollment application” – form CMS-855 – or the internet-based electronic application, which is submitted through the Medicare Provider Enrollment, Chain, and Ownership System (PECOS).  Id. § 424.502 (defining “enrollment application” and PECOS).  A submitted enrollment application must include “[c]omplete, accurate, and truthful responses to all information requested within each section as applicable to the provider or supplier type.”  Id. § 424.510(d)(2)(i).  Enrollment applications include a certification statement that must be signed by an individual having 

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authority to bind the provider or supplier.  Id. § 424.510(d)(3).  The signature attests that all the information in the application is accurate and the “supplier is aware of, and abides by, all applicable statutes, regulations, and program instructions.”  Id.  Individual practitioners and sole proprietors cannot delegate signature authority for any reason; an enrollment application submitted by an individual practitioner or sole proprietor must be signed by the enrolling individual.  Id. § 424.510(d)(3)(i)-(ii). 

CMS may revoke a supplier’s Medicare enrollment and any corresponding supplier agreement for any of the reasons listed under 42 C.F.R. § 424.535(a).  CMS may revoke a supplier’s Medicare enrollment under section 424.535(a)(3) if, within the preceding 10 years, the supplier or any owner of the supplier was convicted (as 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.  Id. § 424.535(a)(3)(i).¹  An individual is “convicted” within the meaning of section 1001.2 when, among other things, a “court has accepted a plea of guilty or nolo contendere” by that individual.  Id. § 1001.2 (defining “Convicted”).  CMS has determined that certain criminal offenses or categories of criminal offenses are per se detrimental to the Medicare program and its beneficiaries.  See id. § 424.535(a)(3)(ii)(A)-(D); Meadowmere Emergency Physicians, PLLC, DAB No. 2881, at 2 (2018).  One such per se detrimental offense category is “financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes.”  42 C.F.R. § 424.535(a)(3)(ii)(B).

CMS may also revoke a supplier’s Medicare enrollment under section 424.535(a)(4) if the supplier certified as “true” misleading or false information on the application to enroll or maintain enrollment in the Medicare program.  Id. § 424.535(a)(4).

If CMS revokes a supplier’s Medicare enrollment, the supplier 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).  Revocations, with some exceptions, become effective 30 days after CMS or the CMS contractor mails notice of its determination to the supplier.  Id. § 424.535(g).  When a revocation is based on a felony conviction, the revocation takes effect on the date of the conviction.  Id.  The re-enrollment bar “[b]egins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 10 years . . . depending on the severity of the basis for revocation.”  Id. § 424.535(c)(1)(i). 

Effective January 1, 2019, CMS implemented a “preclusion list” applicable to Medicare Part C (Medicare Advantage) and Medicare Part D (Voluntary Medicare Prescription

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Drug Benefit) as part of its effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees.”  See 82 Fed. Reg. 56336, 56448 (Nov. 28, 2017); 83 Fed. Reg. 16440, 16646 (Apr. 16, 2018).  CMS must notify an individual or entity in writing of the decision to place the individual or entity on the preclusion list, the basis for the decision, and the right to appeal it.  42 C.F.R. §§ 422.222(a)(2)(i), 423.120(c)(6)(v)(A).  After receiving proper notice, an individual or entity placed on the preclusion list is prohibited from receiving reimbursement for health care items, services, or drugs provided under Medicare Part C (42 C.F.R. § 422.222) and from receiving reimbursement for drugs prescribed under Medicare Part D (42 C.F.R. § 423.120(c)(6)).  

CMS may place an individual or entity on the preclusion list when 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.”  42 C.F.R. §§ 422.2, 423.100.  To determine whether a felony conviction is detrimental to the best interests of the Medicare program, CMS considers the severity of the offense, when the offense occurred, and any other information CMS deems relevant to its determination.  Id.  An individual or entity placed on the preclusion list based on a felony conviction will remain on the preclusion list for ten years, beginning on the date of the felony conviction, unless CMS determines a shorter period is warranted.  Id. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C). 

CMS may also place an individual or entity on the preclusion list when (i) the individual or entity is currently revoked from Medicare (for reasons other than that stated in 42 C.F.R. § 424.535(a)(3)), (ii) the individual or entity is currently under a re-enrollment bar, and (iii) CMS has determined that the conduct underlying the revocation is detrimental to the best interests of the Medicare program.  42 C.F.R. §§ 422.2, 423.100.  To determine whether the conduct underlying the revocation is detrimental, CMS considers the seriousness of the conduct, the degree to which that conduct could affect the integrity of the Medicare program, and any other evidence CMS deems relevant.  Id.  Subject to certain exceptions, such as an individual’s placement on the preclusion list due to a felony conviction, an individual or entity revoked under section 424.535 will be included on the preclusion list for the same length of time as the individual’s or entity’s re-enrollment bar.  Id. §§ 422.222(a)(5)(i), 423.120(c)(6)(vii)(A).

A supplier may appeal a revocation determination and placement on the preclusion list in accordance with the administrative appeal procedures in 42 C.F.R. Part 498.  42 C.F.R. §§ 422.222(a)(2)(i), 423.120(c)(6)(v)(A), 424.545(a).  A determination by CMS to revoke a supplier’s Medicare enrollment and place a supplier on the preclusion list is an initial determination under Part 498.  Id. §§ 498.3(b)(17), (20).  The supplier must first request reconsideration of the initial determination.  Id. §§ 498.5(l)(1), 498.5(n)(1), 498.22.  If dissatisfied with the reconsidered determination, the supplier may request an 

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ALJ hearing.  Id. §§ 498.5(l)(2), 498.5(n)(2), 498.40.  A party dissatisfied with an ALJ’s decision may seek review by the Board.  Id. §§ 498.5(l)(3), 498.5(n)(3), 498.80.

Case Background

Ms. Dobbin is a nurse practitioner licensed to practice in Illinois and the sole owner of Ebony Wellness.  ALJ Decision at 1; CMS Ex. 1, at 181-83; CMS Ex. 2, at 183.  Before becoming a nurse practitioner, Ms. Dobbin was a licensed loan officer in Illinois.  ALJ Decision at 2; CMS Ex. 1, at 148. 

On April 15, 2015, Ms. Dobbin was charged with one count of felony bank fraud in violation of 18 U.S.C. § 1344.  CMS Ex. 1, at 148-51.  On June 4, 2015, Ms. Dobbin pleaded guilty to the charge in the United States District Court for the Northern District of Illinois Eastern Division (district court).  ALJ Decision at 2; CMS Ex. 1, at 144, 152-70.  In her plea agreement, Ms. Dobbin admitted that from about August 2006 through July 2007, she knowingly participated in a fraudulent scheme to obtain money and funds owned by and under the control of a financial institution by means of materially false and fraudulent pretenses, representations, and promises.  CMS Ex. 1, at 153.  Specifically, Ms. Dobbin admitted that she and “other co-schemers” fraudulently obtained loan proceeds from a bank by submitting a materially false loan application for the purchase of a property.  Id.  In furtherance of this scheme, Ms. Dobbin recruited a nominee buyer; concealed an agreement to pay the nominee buyer; agreed that the nominee buyer would falsely represent their employment status and intent to reside at the property on the loan application; “agreed . . . to obtain fake employment documents and a fake earnest money check” to support the loan application; “purchased fake W-2s, a fake earnest money check, and fake check stubs”; and caused the fraudulent loan application to be submitted to the bank with materially false statements about the buyer’s employment, income, and intention to occupy the property.  Id. at 153-55.  Ms. Dobbin admitted that her conduct resulted in approximately $345,500 in losses to the bank.  Id. at 155. 

Ms. Dobbin further admitted to participating in a scheme to fraudulently obtain loans to purchase 16 other properties causing more than $4.9 million in losses to ten other lenders.  Id. at 155-56.  Ms. Dobbin and her co-schemers obtained these loans “through materially false and fraudulent pretenses, representations, and promises supported by, among other things, nominee buyers, concealed payments to nominee buyers, fake employment documents, fake bank statements, fake earnest money checks, and fake rental documents.”  Id. at 155.  As part of her plea agreement, Ms. Dobbin agreed to cooperate with the government in other proceedings and agreed to the “postponement of her sentencing until after the conclusion of her cooperation.”  Id. at 160-61. 

The record reflects that the district court accepted Ms. Dobbin’s guilty plea on June 4, 2015.  CMS Ex. 1, at 144 (“Defendant enters a plea of guilty to the information.  

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Judgment of guilty entered.”).²  On October 10, 2019, the district court sentenced and entered judgment against Ms. Dobbin.  ALJ Decision at 2; CMS Ex. 1, at 171.  The district court sentenced Ms. Dobbin to time served (one day) and two years of supervised release and ordered her (along with other defendants) to pay more than $4.6 million in restitution to the defrauded financial institutions.  CMS Ex. 1, at 172, 173, 177-79.

Following her conviction, Ms. Dobbin obtained an advanced nursing degree and became licensed as a nurse practitioner.  ALJ Decision at 2; Petitioner’s Response to MSJ (P. Br.) at 2; CMS Ex. 1, at 81, 182.  Ms. Dobbin applied to enroll in the Medicare program on December 9, 2021, and Ebony Wellness applied to enroll in the Medicare program on June 27, 2022.  CMS Ex. 1, at 181-85; CMS Ex. 2, at 180-87.  Petitioners completed and submitted their enrollment applications through PECOS, Medicare’s electronic enrollment process.  Id.  Neither enrollment application disclosed that Ms. Dobbin was convicted of felony bank fraud within the preceding 10 years.  ALJ Decision at 2; CMS Ex. 1, at 183; CMS Ex. 2, at 183 (both applications providing an answer of “No” to the question of whether a final adverse legal action had ever been imposed against Ms. Dobbin).  Both applications identified Ms. Dobbin as the “authorized signer,” and indicated that she electronically signed the required certification statements on each application.  CMS Ex. 1, at 181; CMS Ex. 2, at 180.  The parties do not dispute that National Government Services (NGS), a Medicare administrative contractor, approved Petitioners’ enrollment applications.  ALJ Decision at 2 n.1 (noting that CMS acknowledged the applications had been approved).    

By letters dated December 5, 2022, NGS notified each Petitioner that their Medicare enrollment and billing privileges were revoked under 42 C.F.R. § 424.535(a)(3) and (a)(4).  ALJ Decision at 2; CMS Ex. 1, at 138-41; CMS Ex. 2, at 137-40.  NGS further notified Petitioners that they would be added to the preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  ALJ Decision at 2; CMS Ex. 1, at 139; CMS Ex. 2, at 138.  CMS imposed a 10-year re-enrollment bar.  CMS Ex. 1, at 141; CMS Ex. 2, at 140.   

Petitioners, through counsel, timely requested reconsideration.  ALJ Decision at 2; CMS Ex. 1, at 13-137; CMS Ex. 2, at 12-136.  In their reconsideration requests, Petitioners conceded that Ms. Dobbin was convicted of felony bank fraud but denied that the offense was detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 1, at 14, 17-18.  Petitioners further argued that they did not intentionally provide false or misleading information on their enrollment applications.  CMS Ex. 1, at 18.  Petitioners stated that Ms. Dobbin was “unfamiliar with the complex application paperwork” and utilized the services of a credentialing company to complete the Medicare enrollment applications.  Id.  Petitioners argued that the credentialing 

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company’s questionnaire, allegedly used to complete the enrollment applications, did not ask whether Ms. Dobbin had a prior conviction.  Id.  Petitioners acknowledged that “the provider is ultimately responsible for the contents of their enrollment application,” but explained that “Ms. Dobbin relied on [the credentialing company’s] experience and expertise in Medicare enrollment to complete her application and did not intentionally omit the conviction from her enrollment application.”  Id.  Petitioners noted that “had Ms. Dobbin known or had [the credentialing company] accurately asked about it, Ms. Dobbin would have fully disclosed the conviction, which . . . she has consistently done in other settings.”  Id.  In requesting reconsideration, Petitioners did not deny that Ms. Dobbin signed and certified the enrollment applications as required by 42 C.F.R. § 424.510(d)(3). 

On April 6, 2023, CMS issued reconsidered determinations upholding Petitioners’ revocations under 42 C.F.R. § 424.535(a)(3) and (a)(4) because Ms. Dobbin was convicted of a felony offense that was detrimental to the best interests of the Medicare program and its beneficiaries, and Petitioners certified as “true” false or misleading information on their respective enrollment applications.  ALJ Decision at 2-4; CMS Ex. 1, at 5-7; CMS Ex. 2, at 5-7.  CMS also upheld the 10-year re-enrollment bar and Petitioners’ inclusion on the preclusion list.  ALJ Decision at 2-4; CMS Ex. 1, at 7-10; CMS Ex. 2, at 7-9.  In connection with the preclusion list determinations, CMS found that Ms. Dobbin’s felony conviction and false certification concerning the accuracy of information on Petitioners’ enrollment applications were detrimental to the best interests of the Medicare program.  ALJ Decision at 4; CMS Ex. 1, at 8-9; CMS Ex. 2, at 8-9.

ALJ Proceedings and Decision

Petitioners, through counsel, timely requested ALJ hearings to challenge the reconsidered determinations.  See CRD Docket No. C-23-414, Doc. #1; CRD Docket No. C‑23-415, Doc. #1.³  CMS filed a combined prehearing brief and motion for summary judgment and two proposed exhibits.  Petitioners’ counsel subsequently withdrew from representation, and Petitioners then proceeded pro se.  ALJ Decision at 5 n.2.  Petitioners filed a brief opposing CMS’s motion for summary judgment and two proposed exhibits (P. Exs. N and O).  The ALJ admitted CMS’s exhibits but excluded Petitioners’ proposed exhibits.  ALJ Decision at 5-6.⁴  The ALJ decided the case based on the written record because neither party had submitted any written direct testimony of a witness.  Having resolved 

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the case on the written record, the ALJ found it unnecessary to further address CMS’s motion for summary judgment.  ALJ Decision at 6 & n.5.

In response to CMS’s brief and motion for summary judgment, Ms. Dobbin argued, for the first time, that she “did not personally sign, nor review the Medicare Application.”  P. Br. at 1.  Ms. Dobbin stated that she “hired” a credentialing company “to sign and review all documents related to Insurance Enrollments.”  Id.  According to Ms. Dobbin, the credentialing company had her “sign an Authorization for Enrollment and sample signatures . . . so they could sign all Enrollment documents for her.”  Id.  Ms. Dobbin reiterated that she “did not deliberately omit her felony conviction” and “did not complete, nor sign her Medicare Application.”  Id.  Ms. Dobbin, however, presented no affidavit, declaration, signed authorization, or any “sample signatures” to support her assertions.  Ms. Dobbin further asserted that she “has a history of full disclosure of the conviction.”  Id. at 6.

Ms. Dobbin further argued that her felony bank fraud conviction was not detrimental to the best interests of the Medicare program and its beneficiaries.  Id. at 2, 5-6.  She asserted that the conduct underlying her conviction occurred in 2007 and “was not related to patient care, controlled substances, [her] nursing licenses, Medicare enrollment, or Medicare claims submissions.”  Id. at 5.  She stated that she accepted responsibility for her mistake, successfully completed probation, had no further criminal convictions, and was never sanctioned as a nurse practitioner.  Id. at 6.  Ms. Dobbin additionally argued that she provides high quality care to patients, practices in a medically underserved area, and is well-respected in her community.  Id. at 6-8.  In addition, Ms. Dobbin argued that the 10-year re-enrollment bar is excessive and challenged her inclusion on the preclusion list based on her felony conviction.  Id. at 8, 9.  Finally, Ms. Dobbin alleged that CMS violated Title VII of the Civil Rights Act.  Id.

The ALJ concluded that CMS was authorized to revoke Petitioners’ Medicare enrollment and billing privileges under section 424.535(a)(3) because Ms. Dobbin was convicted of a felony offense that is per se detrimental to the best interests of the Medicare program.  ALJ Decision at 10-11.  The ALJ also found CMS had a legal basis for revocation under section 424.535(a)(4) because Petitioners’ Medicare enrollment applications failed to disclose Ms. Dobbin’s felony conviction, and “Petitioners cannot evade responsibility for the content of their enrollment applications by claiming that a third-party credentialing company completed and signed the applications on their behalf.”  Id. at 11-13.  The ALJ further found that Petitioners had not offered any basis for overturning CMS’s revocation decisions, and that the ALJ had no authority to review the length of the re-enrollment bar or Petitioners’ claim that CMS had violated their constitutional rights.  Id. at 13-14.  Finally, the ALJ determined CMS had a legitimate basis to add Petitioners to the preclusion list.  Id. at 15-16. 

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Petitioners subsequently filed a Request for Review (RR) challenging the revocation and preclusion list determinations upheld by the ALJ.⁵ 

Standard of Review

In appeals under 42 C.F.R. Part 498, the Board reviews disputed factual issues to determine whether the ALJ’s decision is supported by substantial evidence in the record as a whole, and reviews disputed issues of law to determine whether the ALJ decision is erroneous.  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), “Completion of the Review Process,” ¶ (c), available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html?language=en.

Analysis

I. The ALJ’s conclusion that CMS had a lawful basis to revoke Petitioners’ Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) is supported by substantial evidence and free of legal error.

On review of a determination to revoke a supplier’s Medicare enrollment and billing privileges, an ALJ and the Board “decide only whether CMS has established a lawful basis for the revocation” under 42 C.F.R. § 424.535(a).  Cornelius M. Donohue, DPM, DAB No. 2888, at 4 (2018).  Although the regulation affords CMS discretion to revoke or not revoke in a particular case, the role of the ALJ and the Board “is limited to determining whether CMS’s action is legally authorized and does not extend to second-guessing whether CMS properly exercised its discretion . . . .”  Acute Care Homenursing Servs., Inc., DAB No. 2837, at 9 (2017).  Thus, if the regulatory elements for revocation are satisfied, “then the revocation must be sustained.”  Douglas Bradley, M.D., DAB No. 2663, at 13 (2015).

CMS may revoke a supplier’s enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) if the supplier, or any owner or managing employee of the supplier was, within the preceding 10 years, convicted (as defined in 42 C.F.R. § 1001.2) 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 record reflects that the district court accepted Ms. Dobbin’s guilty plea to felony bank fraud on June 4, 2015.  CMS Ex. 1, at 144.  Ms. Dobbin, therefore, was convicted within the meaning of section 

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1001.2 on June 4, 2015.⁶  Petitioners argue that the conduct underlying the conviction occurred more than ten years ago and deny that Ms. Dobbin’s felony conviction is “currently” detrimental to the Medicare program or its beneficiaries.  RR at 2.

The regulation authorizes revocation based on when a supplier, or any owner or managing employee of a supplier, was convicted of a qualifying felony, not the date of the underlying conduct.  42 C.F.R. § 424.535(a)(3); Saeed A. Bajwa, M.D., DAB No. 2799, at 7 (2017) (holding that supplier’s conviction, not his criminal conduct, was the basis for CMS’s exercise of its revocation authority).  While the conduct underlying Ms. Dobbin’s conviction occurred in 2006 and 2007, “the only time limit mandated by the applicable regulation is that the conviction occur ‘within the preceding 10 years.’”  Blair Allen Nelson, M.D., DAB No. 3024, at 12 (2020) (quoting 42 C.F.R. § 424.535(a)(3)).  Here, there is no dispute Ms. Dobbin was convicted within ten years of the CMS decisions revoking Petitioners’ Medicare enrollment and billing privileges.⁷

Petitioners also do not dispute that Ms. Dobbin was convicted of felony bank fraud and that bank fraud is a financial crime.  RR at 2; ALJ Decision at 10; CMS Ex. 1, at 144, 152-70.  Petitioners contend, however, that “there is no factual basis to conclude that the underlying conduct was detrimental to the Medicare program or beneficiaries.”  RR at 2.  Petitioners’ argument is without merit because, as the ALJ correctly concluded, Ms. Dobbin’s felony offense is per se detrimental to the best interests of the Medicare program and its beneficiaries.  ALJ Decision at 11.  The categories of offenses set forth under 42 C.F.R. § 424.535(a)(3)(ii) are those that CMS has determined, by rulemaking, to be detrimental to the Medicare program and its beneficiaries as a matter of law.  See Lilia Gorovits, M.D., P.C., DAB No. 2985, at 10 (2020) (collecting cases), aff’d, No. 20-1850, 2021 WL 1962903 (E.D. Pa. May 17, 2021); see also Eva Orticio Villamor-Goubeaux, DAB No. 2997, at 8 (2020) (collecting cases); Letantia Bussell, M.D., DAB

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No. 2196, at 9-10 (2008) (holding CMS has determined that the offenses listed in section 424.535(a)(3) are “detrimental per se to the program and its beneficiaries”); 71 Fed. Reg. 20,754, 20,768 (Apr. 21, 2006). 

Those categories of per se detrimental offenses include, among others, “[f]inancial 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.”  42 C.F.R. § 424.535(a)(3)(ii)(B).  It is well-settled that bank fraud is a “financial crime” within the meaning of section 424.535(a)(3)(ii)(B) and is a per se detrimental offense.  See Stanley Beekman, D.P.M., DAB No. 2650, at 8 (2015) (concluding that conspiring to commit bank fraud and using false statements to obtain a bank loan are financial crimes and per se detrimental to the Medicare program and its beneficiaries).  Here, Ms. Dobbin’s conviction was based on her admission that she participated in a fraudulent scheme to submit loan applications with materially false statements to multiple lenders, causing more than $5 million in financial losses.  CMS Ex. 1, at 153-56.  “[C]onspiring to commit bank fraud and using false statements to obtain bank loans are crimes that are financial at their heart.”  Beekman at 8.  Because Ms. Dobbin’s felony conviction for bank fraud constitutes a financial crime under section 424.535(a)(3)(ii)(B), it is per se detrimental to the best interests of the Medicare program and its beneficiaries.  ALJ Decision at 10. 

Ms. Dobbin insists that CMS erred by “fixating on the nature of the underlying conduct in 2007 and ignoring any facts over the proceeding 16 years to the contrary.”  RR at 2 (“I have proven myself true, since my criminal conduct was over 17 years ago without any other criminal convictions or tags on my nursing license.”).  When a felony offense is deemed per se detrimental, the Board may not evaluate the circumstances of the offense, or otherwise look beyond the conviction, to make a conflicting determination about the offense’s actual or potential impact on the Medicare program.  See Beekman at 8-9 (citing Fady Fayad, M.D., DAB No. 2266, at 15 (2009), aff’d, 803 F. Supp. 2d 699 (E.D. Mich. 2011); John Hartman D.O., DAB No. 2564, at 5 (2014)). 

Moreover, to the extent that Petitioners contend CMS should have exercised its discretion not 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 

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legal basis for revocation.”  Daniel Wiltz, M.D., DAB No. 2864, at 12 (2018) (citing Bussell at 13; Fayad at 16).

That Ms. Dobbin may have had no other criminal convictions and no adverse actions against her nursing license has “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); Nelson at 11 (“There is no regulatory or statutory authority authorizing ‘the Board or ALJs to weigh a petitioner’s alleged good deed against his criminal conduct in determining whether there is a valid legal basis for CMS to revoke[.]” (quoting Dinesh Patel, M.D., DAB No. 2551, at 10-11 (2013)).  We conclude that the regulatory elements in section 424.535(a)(3) are met and, therefore, we must sustain the revocation decisions regardless of other factors that CMS might reasonably have weighed in exercising its discretion to revoke.  See Nelson at 11; Wiltz at 12; see also William Garner, M.D., DAB No. 3026, at 16 (2020). 

CMS had a lawful basis to revoke Petitioners’ Medicare enrollment and billing privileges under section 424.535(a)(3) because Ms. Dobbin, the sole owner of Ebony Wellness, was convicted of a felony offense within the preceding 10 years and that offense (i.e., bank fraud) is a financial crime that CMS determined is per se detrimental to the best interests of the Medicare program and its beneficiaries.  See Beekman at 9.  We therefore affirm the ALJ’s conclusion that CMS was authorized to revoke Petitioners’ Medicare enrollment and billing privileges under section 424.535(a)(3).

II. The ALJ’s conclusion that CMS had a lawful basis to revoke Petitioners’ Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(4) is supported by substantial evidence and free of legal error.

Section 424.535(a)(4) authorizes CMS to revoke the Medicare enrollment and billing privileges of a supplier who has “certified as ‘true’ misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.”  A “key purpose of enrollment is to ensure that suppliers comply with eligibility and other requirements for program participation and payment.”  Sunsites Pearce Fire Dist., DAB No. 2926, at 2 (2019), remanded on other grounds, No. 4:19-CV00203, 2020 WL 3971401 (D. Ariz. July 14, 2020).  To ensure that Medicare enrolls only qualified and trustworthy suppliers, the program’s regulations require a supplier to:  (i) provide “[c]omplete, accurate, and truthful responses” to all information requested on an enrollment application (42 C.F.R. § 424.510(d)(2)(i)); (ii) provide those responses “on the applicable enrollment application” (id. § 424.510(a)(1)); and (iii) certify, by a signature on the application, that the information provided therein is “accurate” (id. § 424.510(d)(3)). 

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“[I]f 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.”  Garner at 9 (emphasis in original).  In those circumstances, CMS may revoke the supplier’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(4).  See, e.g., Dennis McGinty, PT, DAB No. 2838, at 6, 8 (2017) (holding that the supplier was subject to revocation because he certified his enrollment application as true and complete, yet failed to report a final adverse legal action), aff’d, No. 3:18-CV-359, 2019 WL 3034596 (N.D. Tex. July 19, 2019); Garner at 9 (upholding revocation where supplier certified that revalidation application was true and complete but “omitted the fact that his California medical license had been revoked”).

In revocation appeals, CMS has the burden of coming forward with evidence establishing a prima facie case that the cited basis for the revocation exists.  See Promptcare New England Respiratory LLC, DAB No. 2673, at 7-8 (2016) (noting that the Board applies the same burden of proof framework in supplier/provider enrollment appeals that it applies in other cases subject to Part 498 appeal procedures); see also Adora Healthcare Servs., Inc., DAB No. 2714, at 4-5 (2016).⁸  Once CMS establishes a prima facie case, the supplier has the burden to rebut the basis for the revocation by a preponderance of the evidence.  See John A. Hartman, D.O, DAB No. 2911, at 10 (2018) (citing Promptcare at 7-8; Adora at 4-5).  For the reasons explained below, we reject Petitioners’ argument that there is “no proof” that they “certified the information submitted to Medicare was true.”  RR at 2.

A. CMS established a prima facie case for Petitioners’ revocations under 42 C.F.R. § 424.535(a)(4), and Petitioners failed to rebut the basis for revocation.

Petitioners certified as “true” false information on their enrollment applications regarding Ms. Dobbin’s adverse legal history.  There is no dispute that Ms. Dobbin was convicted of felony bank fraud on June 4, 2015.  CMS Ex. 1, at 144, 152-70, 181; CMS Ex. 2, at 180.  The PECOS application system instructs that “convictions (as defined in 42 C.F.R. section 1001.2) within the preceding 10 years” must be reported.  CMS Ex. 1, at 186.  This includes any federal or state felony conviction by the provider, supplier, or any owner or managing employee of the provider or supplier.  Id.  However, as shown by the application record data reports, Petitioners responded “No” to the question of whether a final adverse legal action had ever been imposed against Ms. Dobbin.  CMS Ex. 1, at 183; CMS Ex. 2, at 183.  The application record data reports also show that Ms. Dobbin electronically signed the relevant certification statements for each application, certifying

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that the information provided was true, accurate, and complete.  CMS Ex. 1, at 181 (identifying Ms. Dobbin as the “authorized signer” of the application’s certification statement); CMS Ex. 2, at 180 (same); see also 42 C.F.R. § 424.510(d)(3) (“The signature attests that the information submitted is accurate and that the provider or supplier is aware of, and abides by, all applicable statutes, regulations, and program instructions.”).  Having presented evidence that Ms. Dobbin signed and certified as “true,” false and misleading information on Petitioners’ enrollment applications, CMS established a prima facie case for revocation under section 424.535(a)(4).

Petitioners failed to rebut CMS’s prima facie case.  Petitioners do not dispute that the enrollment applications falsely reported that Ms. Dobbin had no felony conviction.  And, Petitioners presented no evidence that anyone other than Ms. Dobbin signed and certified the applications.  In their reconsideration requests, Petitioners did not deny that Ms. Dobbin signed the applications and, in fact, acknowledged that suppliers are “ultimately responsible for the contents of their enrollment application.”  CMS Ex. 1, at 18 (arguing that the omission of Ms. Dobbin’s felony conviction was unintentional); CMS Ex. 2, at 17 (same).  Before the ALJ, Ms. Dobbin changed course and argued that she did not “personally sign or review” either application but authorized a credentialing company to complete and sign all enrollment documents for her.  P. Br. at 1.  Yet, there is no record evidence showing that Ms. Dobbin authorized a credentialing company, or any other third-party, to sign either Medicare enrollment application on her behalf. 

Petitioners pointed to the credentialing company’s “Authorization for Enrollments” form (CMS Ex. 1, at 98-100), which directs the individual completing the authorization to place their signature in three boxes to authorize the credentialing company to sign insurance company credentialing applications on the individual’s behalf.  However, the forms are blank and do not show that Ms. Dobbin delegated any signature responsibility to the credentialing company.  Moreover, as the ALJ noted, the credentialing company’s forms, even if signed, do not indicate whether the authorization would extend to Medicare enrollment applications.  ALJ Decision at 12 n.8.  Nor is there any evidence supporting Ms. Dobbin’s contention that she submitted “sample signatures” to the credentialing company so it could sign enrollment documents for her.  P. Br. at 1.  There are no such “sample signatures” (or “template signatures” as the ALJ described them) in the record.  CMS Ex. 1, at 99-100.  Petitioners presented no documentary evidence, sworn statement, or testimony to support their argument that the credentialing company, rather than Ms. Dobbin, signed the enrollment applications.  In short, Petitioners failed to rebut CMS’s evidence that Ms. Dobbin signed and certified both Medicare applications. 

Ms. Dobbin further asserts that she “repeatedly disclosed the past felony conviction when asked,” including on applications for a nurse practitioner license and Drug Enforcement Administration certificate of registration.  RR at 2.  The fact that Ms. Dobbin may have disclosed her conviction to other agencies under other circumstances is irrelevant under section 424.535(a)(4), which authorizes revocation “when the enrollment application

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itself contains false or misleading information.”  Garner at 10 (emphasis in original).  These assertions, even if true, provide no rebuttal to CMS’s prima facie case.

Similarly, Ms. Dobbin argued, pointing to a questionnaire allegedly used by the credentialing company (CMS Ex. 1, at 136-37), that the company never asked her whether she had any final adverse legal actions.  P. Br. at 1.  The questionnaire, however, is not specific to Medicare enrollments, nor is there evidence that the questionnaire was the only information the credentialing company inquired about.  Indeed, the questionnaire did not ask about many items required for (and appearing on) the enrollment applications, such as medical records storage locations, reassignment of benefits, and the electronic funds transfer agreement.  CMS Ex. 1, at 94-97, 136-37, 181-85; CMS Ex. 2, at 180-87.  Still further, Ms. Dobbin provided no sworn statement or other testimony supporting her assertion that the credentialing company never inquired about her adverse legal history.  More importantly, the questionnaire does not show that Ms. Dobbin “authorized” the credentialing company to sign and certify the Medicare enrollment applications or that the credentialing company signed the certification statements on each application.  While there is some evidence that Ms. Dobbin involved a credentialing company in the enrollment process, there is no evidence that anyone other than Ms. Dobbin signed the certification statements on each application.  Thus, regardless of who prepared the applications, there is a legal basis for the revocation under section 424.535(a)(4) because Petitioners certified that the information provided was true, correct, and complete.  See Brenda Lee Jackson, DAB No. 2903, at 10-11 (2018) (rejecting nurse practitioner’s argument that she did not provide false and misleading information because a third-party prepared the application for her and neglected to ask about her adverse legal history); Sandra E. Johnson, CRNA, DAB No. 2708, at 14 (2016) (“[I]t is ultimately immaterial whether Petitioner actually completed the 8551 forms herself, or, someone else completed the forms for Petitioner and intentionally or negligently omitted information about the negative licensing history from the forms.”). 

Moreover, to the extent that Ms. Dobbin contends that she did not intentionally omit the felony conviction from the applications, her subjective intent in failing to report her felony conviction is “immaterial in evaluating whether CMS had a legal basis to revoke billing privileges under section 424.535(a)(4).”  Sonjay Fonn, D.O. and Midwest Neurosurgeons, LLC, DAB No. 3086, at 16 (2023) (quoting Garner at 14).  Section 424.535(a)(4) does not require proof that Ms. Dobbin “subjectively intended to provide false information, only proof that [she] in fact provided misleading or false information that [she] certified as true.”  Johnson at 15 (quoting Mark Koch, D.O., DAB No. 2610, at 4-5 (2014)) (emphasis in original).   

Here, Petitioners certified as “true” false or misleading information about Ms. Dobbin’s adverse legal history when Ms. Dobbin signed enrollment applications that failed to disclose her felony conviction.  See Garner at 10; Johnson at 15.  For this reason alone, 

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we affirm the ALJ’s conclusion that CMS had a legal basis to revoke Petitioners’ Medicare enrollment and billing privileges under section 424.535(a)(4).

B. We do not reach the question of whether CMS had a legal basis to revoke Petitioners’ enrollment and billing privileges under section 424.535(a)(4) merely because Petitioners “authorized” the filing of enrollment applications containing false or misleading information.

Before the ALJ, Ms. Dobbin argued that she did not “personally sign or review” the enrollment applications submitted to CMS because she “hired” a credentialing company and signed an authorization form that purportedly allowed the credentialing company to sign all enrollment documents for her.  P. Br. at 1.  The ALJ apparently accepted the factual premise of this argument for the sake of discussion, but did not make an explicit determination as to who, in fact, signed the Medicare enrollment applications.  ALJ Decision at 12 (“Accepting, for the sake of this discussion, that the credentialing company signed the enrollment applications on Petitioners’ behalf . . . .”).  The ALJ, however, noted that “Petitioners do not claim that the [credentialing company] was not authorized to sign and file their enrollment applications, nor is there evidence that the [credentialing company] signed and filed the applications without the explicit consent of Petitioners.”  Id.  Thus, the ALJ concluded that “Petitioners authorized the filing of the enrollment applications and are responsible for the inclusion of any false or misleading information within the applications.”  Id.⁹ 

As discussed above, there is no evidence that Ms. Dobbin “authorized” the credentialing company to sign the Medicare applications on her behalf or that the credentialing company, in fact, signed the certification statements on each application.  See supra at 12-14.  Further, before the Board, Ms. Dobbin now argues that she had “no contract that specifically states” that she agreed “to the third party company signing a Medicare application for [her].”  RR at 3.¹⁰  While that may be true, Ms. Dobbin’s argument contradicts the position she took before the ALJ (i.e., that she had provided an authorization and sample signatures to the credentialing company, so it could sign all enrollment documents for her).  P. Br. at 1.  If Ms. Dobbin is now suggesting that the credentialing company submitted the enrollment applications without her knowledge, authorization, or consent, that is a new argument that cannot be raised for the first time before the Board.  “A party appearing before the Board is not permitted to raise on appeal

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issues that could have been raised before the ALJ but were not.”  Meadowmere at 15 (citing Guidelines, “Completion of the Review Process,” ¶ (a) (“The Board will not consider . . . issues which could have been presented to the ALJ but were not.”)).  Even if the argument were properly before the Board, we would reject it because it is not supported by any record evidence.

In any event, the relevant question here is whether Petitioners “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).  Having concluded, based on the record evidence, that Ms. Dobbin signed and certified Petitioners’ enrollment applications, we need not reach the question of whether CMS had a legal basis to revoke Petitioners’ enrollment and billing privileges under section 424.535(a)(4) merely because Petitioners “authorized” the filing of enrollment applications that failed to disclose Ms. Dobbin’s felony conviction.  Accordingly, we decline to affirm that part of the ALJ Decision because it is unnecessary and unsupported by the record evidence.

III. The length of Petitioners’ re-enrollment bars is not subject to review by the ALJ or the Board.

Petitioners challenge the length of the re-enrollment bars imposed by CMS.  RR at 2 (characterizing the 10-year re-enrollment bar as “the harshest penalty”).  As the ALJ explained, CMS is authorized to impose a re-enrollment bar of up to ten years when a supplier’s Medicare enrollment is lawfully revoked.  ALJ Decision at 14 (citing 42 C.F.R. § 424.535(c)).  The ALJ noted that Petitioners did not identify “any legal error in CMS’s imposition of the reenrollment bar” and, in any event, CMS’s decision regarding the length of the re-enrollment bar is not an “initial determination” subject to review by the ALJ.  Id. at 14-15 (citing Linda Silva, P.A., DAB No. 2966, at 11 (2020) and Vijendra Dave, M.D., DAB No. 2672, at 11 (2016)). 

We agree.  The Board has long held that the duration of a re-enrollment bar is not an initial determination subject to review by an ALJ or the Board under Part 498 regulations.  See Sheetal Kumar, M.D., P.A., DAB No. 2965, at 11-12 (2019) (“[W]here a revocation is upheld—as in Petitioner’s case—the ALJ and the Board do not have the authority to change the length of the re-enrollment bar set by CMS.”); see also Garner at 16 (collecting cases); Nelson at 13.

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IV. The ALJ did not err in concluding that CMS had a legitimate basis to include Petitioners on the preclusion list.

Ms. Dobbin challenges her placement on the preclusion list based on her felony conviction.  ALJ Decision at 15-16.¹¹  An individual may be placed on the preclusion list when they have “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.”  42 C.F.R. §§ 422.2, 423.100.  In determining whether a felony conviction is detrimental to the program, CMS considers (i) the severity of the offense, (ii) when the offense occurred, and (iii) any other information CMS deems relevant to its determination.  Id.  There is no dispute Ms. Dobbin was convicted of felony bank fraud within the previous 10 years.  And, as the ALJ found, CMS considered the relevant regulatory factors in determining that Ms. Dobbin’s felony conviction is detrimental to the best interests of the Medicare program.  ALJ Decision at 16.

Regarding the first factor, CMS determined that the felony offense of bank fraud is a “very serious offense.”  ALJ Decision at 16; CMS Ex. 1, at 8.  CMS found that Ms. Dobbin “knowingly and willingly engaged in a scheme to defraud mortgage lenders,” thereby “enrich[ing] herself at the expense of others.”  Id.  The severity of the offense was further demonstrated by the district court’s sentencing of Ms. Dobbin to one day in prison, two years of supervised release, and ordering her to pay more than $4.6 million in restitution.  Id.  In considering the second factor, CMS acknowledged the conduct underlying the felony offense occurred in 2006 and 2007 but explained that “this factor alone is not dispositive of CMS’ determination.”  Id.  Regarding the third factor, CMS found relevant that felony bank fraud is a financial crime that is per se detrimental to the best interests of the Medicare program and its beneficiaries.  Id.  CMS further found that “Ms. Dobbin’s conduct negatively affects the integrity of the Medicare program” because “her actions jeopardize public confidence in Medicare providers and suppliers.”  Id. (“Public confidence is vital to the success of the Medicare program . . .”). 

Here, CMS considered each regulatory factor in concluding that Ms. Dobbin’s felony conviction is detrimental to the best interests of the Medicare program.  CMS Ex. 1, at 8.  Moreover, having determined that Ms. Dobbin’s felony bank fraud offense is per se detrimental to the Medicare program for purposes of revocation, we can discern no legal basis that would compel CMS to find the offense not detrimental to the Medicare program for purposes of the preclusion list.  Accordingly, we find the requirements for placing Ms. Dobbin on the preclusion list were met.  Cf. Anthony Del Piano, DAB No. 3096, at 16 (2023) (upholding preclusion list determination where supplier’s felony offense was deemed per se detrimental for revocation purposes).  We therefore affirm the 

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ALJ’s conclusion that CMS had a legitimate basis to place Ms. Dobbin on the preclusion list based on her felony conviction.

CMS also placed Ms. Dobbin and Ebony Wellness on the preclusion list based on their revocations under section 424.535(a)(4).  ALJ Decision at 15; CMS Ex. 1, at 8-9; CMS Ex. 2, at 8-9.  An individual or entity may be placed on the preclusion list when (i) they are currently revoked from Medicare (for reasons other than that stated in section 424.535(a)(3)), (ii) they are currently under a re-enrollment bar, and (iii) CMS determined that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  42 C.F.R. §§ 422.2, 423.100.  To determine whether the conduct underlying the revocation is detrimental, CMS considers (i) the seriousness of the conduct, (ii) the degree to which that conduct could affect the integrity of the Medicare program, and (iii) any other evidence CMS deems relevant.  Id.

Before the ALJ, “Petitioners did not challenge their inclusion on the [p]reclusion [l]ist based on their revocation[s] under 42 C.F.R. § 424.535(a)(4).”  ALJ Decision at 15 (finding no basis, absent any argument, to disturb CMS’s preclusion list determination).  Having failed to challenge this determination before the ALJ, Petitioners cannot challenge it for the first time before the Board.  See Meadowmere at 15 (citing Guidelines, “Completion of the Review Process,” ¶ (a) (“The Board will not consider issues not raised in the request for review, nor issues which could have been presented to the ALJ but were not.”)).  

Even if the issue were properly before the Board, we would uphold Petitioners’ placement on the preclusion list because:  (i) Petitioners were revoked from Medicare under section 424.535(a)(4); (ii) Petitioners are currently under a re-enrollment bar; and (iii) CMS determined that the conduct underlying the revocations is detrimental to the best interests of the Medicare program.  CMS Ex. 1, at 8-9; CMS Ex. 2, at 8-9.  In concluding that the underlying conduct is detrimental to the best interests of the program, CMS noted that false certifications on enrollment applications are “very serious.”  CMS Ex. 1, at 9; CMS Ex. 2, at 8.  CMS explained that the Medicare program relies on suppliers to “accurately self-report” and Petitioners’ failure to disclose Ms. Dobbin’s felony conviction on their enrollment applications “calls into question [their] honesty and trustworthiness.”  Id.  CMS further explained that submitting false information or withholding information relevant to a supplier’s enrollment eligibility “represents a significant program integrity risk.”  Id. (quoting 84 Fed. Reg. 47,794, 47,826 (Sept. 10, 2019)).  This risk was demonstrated by the fact that NGS approved Petitioners’ applications without knowledge of Ms. Dobbin’s felony conviction, allowing Petitioners to “access the Medicare program and Trust Funds after her conviction.”  CMS Ex. 1, at 9; CMS Ex. 2, at 8.  CMS pointed out that “[t]he integrity of the Medicare program is dependent upon the integrity and reliability of our partners.”  Id.  Petitioners identified no factual or legal flaw in any part of CMS’s conclusion that the conduct that led to the revocation is detrimental to the best interests of the Medicare program.

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Apart from challenging the legal basis for the revocations under section 424.535(a)(4), which we reject for the reasons stated above, Petitioners made no argument that CMS erred in interpreting or applying the regulatory requirements governing their placement on the preclusion list.  Accordingly, we find no basis to disturb CMS’s decision to add Petitioners to the preclusion list based on the revocations under section 424.535(a)(4).

V. Petitioners’ other arguments provide no basis to reverse the revocation or preclusion list determinations.

Ms. Dobbin further argues that she did not learn about “CMS and their power to affect your ability to practice medicine” during nursing school and claims that she was not required to learn about CMS requirements prior to becoming a licensed nurse practitioner.  RR at 3.  These assertions, even if true, provide no basis to reverse the revocation or preclusion list determinations.  Ms. Dobbin was obligated to familiarize herself with Medicare requirements and to adhere to applicable law and regulations.  See Jackson at 10-11 (collecting cases).  To the extent Petitioners contend they are entitled to equitable relief, the Board has long held that ALJs and the Board are not authorized to restore billing privileges on equitable grounds.  See 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.”)).  We repeatedly have applied that principle in supplier and provider enrollment appeals.  See, e.g., Michael Turano, M.D., DAB No. 2922, at 12 (2019) (“Neither the ALJ nor the Board may order reinstatement of billing privileges based on equity principles.”); Neb Grp. of Arizona LLC, DAB No. 2573, at 6 (2014) (“The Board has consistently held that it (and the ALJs) lack the authority to restore a supplier’s billing privileges on equitable grounds.”).  We apply and follow that principle here as well. 

Lastly, Ms. Dobbin argues, without evidence, that CMS violated Title VII of the Civil Rights Act (42 U.S.C. § 2000e et seq.) (Title VII).  RR at 3.  The Board does not have jurisdiction to review Petitioners’ argument that CMS violated Title VII.  See Mohammad Nawaz, M.D., et al., DAB No. 2687, at 15 (2016) (citation omitted), aff’d sub nom., Shah v. Azar, 920 F.3d 987 (5th Cir. 2019) (citing Dave at 10‑11).  The Board and ALJs may only review issues “specifically identified” in the regulations as “appealable administrative actions.”  See Nawaz at 15 (citation omitted).  In the context of this proceeding, ALJs and the Board are only authorized to review initial determinations as described in Part 498.  42 C.F.R. § 498.3(b); see Nawaz at 15-16.  An alleged violation of Title VII is not a CMS action appealable under Part 498.¹² 

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Conclusion

We affirm the ALJ’s conclusion that CMS lawfully revoked each Petitioners’ Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3) and (a)(4).  We further affirm the ALJ’s conclusion that CMS lawfully placed Petitioners on the preclusion list. 

Endnotes

¹  CMS amended the regulations at section 424.535(a) effective January 1, 2024; however, we cite to and apply the regulations in effect on December 5, 2022, the date of the relevant revocation determinations (CMS Ex. 1, at 138-141; CMS Ex. 2, at 137-140).  See Meadowmere Emergency Physicians, PLLC, DAB No. 2881, at 2 n.2 (2018).  Even if the amendments were applicable here, they would have no material effect on this decision.

²  CMS determined that Ms. Dobbin was convicted within the meaning of 42 C.F.R. § 1001.2 on June 4, 2015.  CMS Ex. 1, at 5 (reconsidered determination), 138 (revocation decision).  

³  Petitioners’ former counsel filed two separate hearing requests, one for Ms. Dobbin (C-23-414) and one for Ebony Wellness (C-23-415).  At Petitioners’ request, and without objection by CMS, the ALJ consolidated the cases under C-23-415.  ALJ Decision at 5 n.2.  The hearing request filed on behalf of Ms. Dobbin in C-23-414 was not added to the docket in C-23-415.  Regardless, the administrative record for this appeal includes the docket entries under both C-23-414 and C-23-415.    

⁴  The ALJ found P. Ex. N was duplicative and P. Ex. O was untimely filed (without good cause), irrelevant, and immaterial.  ALJ Decision at 5-6.  Petitioners did not challenge the exclusion of their exhibits in this appeal and, in any event, we find no error in the ALJ’s evidentiary rulings. 

⁵  Although the Request for Review appeared to indicate it was filed on behalf of Ebony Wellness only, Ms. Dobbin subsequently confirmed that both Petitioners were appealing the ALJ Decision.  Supplement to Request to Appeal (Aug. 29, 2023).

⁶  Petitioners argue that the ALJ erroneously found that Ms. Dobbin was convicted in October 2019, only two years before she obtained her nurse practitioner license and, therefore, the ALJ did not fairly review the revocation decisions.  RR at 2.  NGS and CMS determined that Ms. Dobbin was convicted of felony bank fraud on June 4, 2015.  CMS Ex. 1, at 5, 26; CMS Ex. 2, at 5, 25.  None of the parties suggested a later conviction date when this matter was before the ALJ, and there is ample record evidence that the district court accepted Ms. Dobbin’s guilty plea on June 4, 2015.  Accordingly, we find no reason to depart from the date of conviction as determined by CMS in the reconsidered determinations.  To the extent the ALJ Decision may be read as finding that Ms. Dobbin was not “convicted” until October 2019, we find that to be harmless error because there is no dispute Ms. Dobbin was convicted within 10 years of the revocations. 

⁷  Petitioners also argue that their standing with Medicare was harmed because Ms. Dobbin cooperated with the government and, if her conviction was “processed when [she] was first approached by the government in 2012, [Petitioners] would be over the 10 year ‘conviction’ rule of CMS.”  RR at 2.  As the ALJ noted, Ms. Dobbin’s cooperation with the government likely resulted in a lesser prison sentence.  ALJ Decision at 13 n.10; CMS Ex. 1, at 52-53.  In any event, the applicable regulations do not authorize an adjustment of the conviction date (for purposes of revocation) based on speculation about when the individual would have been convicted had they not cooperated with the government.

⁸  “A party establishes a prima facie case by introducing enough probative evidence to establish a proposition in the absence of contrary evidence.”  Hearthside Care Ctr., DAB No. 1741, at 4 (2000).

⁹  Though not addressed by the ALJ, under the applicable Medicare enrollment requirements, Ms. Dobbin could not lawfully delegate signature authority to a third-party credentialing company.  See 42 C.F.R. § 424.510(d)(3)(i)-(ii).  As an individual practitioner and the only “authorized official” of Ebony Wellness, Ms. Dobbin was required to sign the initial enrollment applications for herself and Ebony Wellness.  See id. 

¹⁰  Ms. Dobbin does not explain how the enrollment applications were submitted through PECOS if she did not sign them, and if she did not agree to have a third-party sign and submit them for her. 

¹¹  Ebony Wellness was not convicted of a felony and was not included on the preclusion list due to any felony conviction.  See CMS Ex. 2, at 8-9 (upholding preclusion list determination as to Ebony Wellness based on revocation under section 424.535(a)(4)). 

¹²  Moreover, Petitioners are not employees of CMS and, therefore, Title VII does not apply.  See, e.g., Lydia E. Vega v. Chi. Park Dist., 165 F. Supp. 3d 693, 702-03 (N.D. Ill. 2016) (noting that Title VII prohibits discrimination in employment) (citing 42 U.S.C. § 2000e-2(a)(1); Howard v. Inland SBA Mgmt. Corp., 32 F. Supp. 3d 941, 955 (N.D. Ill. 2014))); see also CMS Response to Petitioners’ Request for Review at 16.