Skip to main content


U.S. flag
      An official website of the United States government
              Here’s how you know
        Here’s how you knowDot gov**Official websites use .gov**
                 A **.gov** website belongs to an official government organization in the United States.
                  HTTPS**Secure .gov websites use HTTPS**
                 A **lock** (A locked padlock) or **https://** means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites. 
  Menu Close
          HHS Search block
    Search
        








  
  
    

  
      

                                      About HHS
    
                        
                              
      
      
      Programs & Services
    
                        
                              
      
      
      Grants & Contracts
    
                        
                              
      
      
      Laws & Regulations Breadcrumb
    Home
                              About
                              Agencies
                              DAB
                              Decisions
                              ALJ Decisions
                              2021
                              Paul Iweriebor, CRNP, DAB CR5875 (2021)
 Navigate to:
  Departmental Appeals Board (DAB)
    
                                                  
                                                    
            
      
      
      
      About DAB
                                            
            
            Organizational Overview
    
                                                  
                              
            
      
      
      
      Who are the Judges?
    
                                                  
                              
            
      
      
      
      DAB Divisions
    
                                                  
                              
            
      
      
      
      Contact DAB
    
                                                  
                                                    
            
      
      
      
      Filing an Appeal Online
                                            
            
            DAB E-File
    
                                                  
                              
            
      
      
      
      Medicare Operations Division (MOD) E-File
    
                                                  
                                                    
            
      
      
      
      Different Appeals at DAB
                                            
            
            Appeals to DAB Administrative Law Judges (ALJs)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Procedures
    
                                                                
                                                    
            
      
      
      
      Appeals to Board
                          
            
            Practice Manual
    
                                                  
                              
            
      
      
      
      Guidelines
    
                                                  
                              
            
      
      
      
      Regulations
    
                                                  
                              
            
      
      
      
      National Coverage Determination Complaints
    
                                                                
                                                    
            
      
      
      
      Appeals to the Medicare Appeals Council (Council)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Fully Integrated Duals Advantage (FIDA) Demonstration Project
    
                                                  
                                                    
            
      
      
      
      Alternative Dispute Resolution Services
                                            
            
            Sharing Neutrals
    
                                                  
                              
            
      
      
      
      ADR Training
    
                                                  
                              
            
      
      
      
      Other ADR Services
    
                                                  
                                                    
            
      
      
      
      DAB Decisions
                                            
            
            Board Decisions
    
                                                  
                              
            
      
      
      
      DAB Administrative Law Judge (ALJ) Decisions
    
                                                  
                              
            
      
      
      
      Medicare Appeals Council (Council) Decisions
    
                                    
                              
            
      
      
      
      Stakeholder Feedback
    
                                                  
                                                    
            
      
      
      
      Careers
                                            
            
            Open Career Opportunities
    
                                                  
                              
            
      
      
      
      Internships & ExternshipsText resize icon

                    




Paul Iweriebor, CRNP, DAB CR5875 (2021)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Paul Iweriebor, CRNP
(NPI: 1275162489),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-21-495Decision No. CR5875May 28, 2021

        
              
    

      DECISION

Novitas Solutions (Novitas), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Paul E. Iweriebor, pursuant to 42 C.F.R. § 424.535(a)(3) because he had been convicted of a felony offense within the preceding 10 years that is  detrimental to the Medicare program and its beneficiaries.  Novitas also added Petitioner to CMS's Preclusion List.  CMS upheld these determinations in a reconsidered determination.  I affirm the revocation of Petitioner's Medicare enrollment and billing privileges and his placement on the Preclusion List.

I.  Background and Procedural History

Petitioner is a nurse practitioner who practices in Maryland.  CMS Exs. 13; 14 at 1-2.  On or about December 16, 2010, a federal grand jury returned a true bill of indictment charging that Petitioner, who was assisted by another individual, "devise[d] a scheme and artifice" to defraud several credit card companies.  CMS Ex. 5.  The indictment charged that the scheme, which occurred between May 1 and September 30, 2008, involved the

**Page 2**

use of stolen identities to open credit card accounts and that the proceeds of transactions made with these credit cards had been deposited into a bank account maintained by Petitioner.  CMS Ex. 5.  The indictment charged that Petitioner committed three counts of wire fraud and eight counts of credit card fraud.  CMS Ex. 5.

Petitioner reported that after his first criminal trial ended in mistrial, he opted to enter into a plea agreement.  P. Br. at 3.  Pursuant to the plea agreement, the United States charged Petitioner, by a single-count information, with the following:

On or about October 8, 2008, in the Northern District of Georgia, the Defendant . . . , in a matter within the jurisdiction of the United States Government, that is, a criminal investigation concerning access device fraud being conducted by the United States Postal Inspection Service, did knowingly and willfully make materially false, fictitious, and fraudulent statements and representations, that is, in an interview with [a] Postal Inspector . . . in connection with said investigation, Defendant stated that he made all of the customers of Pee Traveling Agency show identification to match credit cards used for credit transactions processed by Pee Traveling Agency, and that he drove the customers in his Honda Accord or Nissan Maxima out of the State of Georgia, which statements Defendant knew at the time were false, fictitious, and fraudulent, in violation of Title 18, United States Code, Section 1001.

CMS Ex. 6 at 1; *see*CMS Exs. 7 at 1; 8 at 3-4.

Pursuant to the plea agreement, Petitioner agreed that at trial, the United States "would prove by admissible evidence and beyond reasonable doubt" the following:

1. On or about October 8, 2008, [Petitioner] was interviewed by [a] Postal Inspector . . . in a matter within the jurisdiction of the United States Government, that is, a criminal investigation concerning access device fraud conducted by the United States Postal Investigation Service.

2. During the interview, [Petitioner] stated, among other things, that he made all of the customers of Pee Traveling Agency show identification to match credit cards used for purchases

**Page 3**

to Pee Traveling Agency, and that he drove the customers in his Honda Accord or Nissan Maxima out of the State of Georgia.

3. The statements were false when made.

4. The statements concerned a material matter, namely, the statements had a natural tendency to influence or were capable of influencing a decision of a department or agency in reaching a required decision, namely, the decision of the United States Postal Inspection Service to recommend prosecution for access device fraud and the decision of the United States Attorney's Office to prosecute for access device fraud.

5. [Petitioner] acted willfully, knowing that the statements were false when made.

CMS Ex. 8 at 4.  The plea agreement included a joint sentencing recommendation that Petitioner pay a $12,000 fine and be sentenced to a five-year term of probation, with a mandatory condition that Petitioner "not open any credit card merchant account or any bank account related to any credit card merchant account (e.g., a settlement bank account), or operate any business that uses a credit card merchant account."  CMS Ex. 8 at 6.  Petitioner entered his guilty plea on July 14, 2011.  CMS Ex. 7 at 1.  A federal judge imposed judgment on October 6, 2011, at which time Petitioner was sentenced to serve a five-year term of probation and pay a $12,000 fine.1
  CMS Ex. 9 at 1-4.  On February 28, 2014, the District Court granted Petitioner's request for early termination of his probation.  CMS Ex. 10 at 1.

On May 1, 2012, the Georgia Board of Nursing suspended Petitioner's nursing license for one year as a sanction for his criminal conviction, but enforcement of the suspension was withheld and Petitioner was placed on probation concurrently with his court-ordered probation.  CMS Ex. 11 at 1, 2, 6.  Effective June 1, 2015, the California Board of Registered Nursing ordered that "the surrender of [Petitioner's] Registered Nurse License and the acceptance of the surrendered license by the Board shall constitute the imposition of discipline against [Petitioner]."  CMS Ex. 12 at 1, 4.

**Page 4**

On June 17, 2020, Petitioner submitted an application to enroll in the Medicare program.  CMS Ex. 14.  In response to a question asking whether "a final adverse legal action [had] ever been imposed" against him, Petitioner answered, "No."2
  CMS Ex. 14 at 2.  On June 22, 2020, Novitas approved his application.  CMS Ex. 15 at 1-2.

On August 24, 2020, Petitioner submitted an enrollment application to update his Medicare enrollment record.  CMS Exs. 3 at 1; 4.  In Section 3, Final Adverse Legal Action Information, Petitioner reported the following:  "Misdemeanor Conviction Within 10 Years, Dismissed, Expunged see uploaded documents, 10/24/2011, District Court of North Georgia."  CMS Ex. 3 at 4.

In a letter dated September 23, 2020, Novitas revoked Petitioner's enrollment and billing privileges, effective June 22, 2020, pursuant to 42 C.F.R. § 424.535(a)(3).  CMS Ex. 1 at 1.  Novitas also imposed a bar to re-enrollment until July 15, 2021, and informed Petitioner that it had added him to CMS's Preclusion List.  CMS Ex. 1 at 1, 3.

Petitioner, through his employer's General Counsel, submitted a request for reconsideration dated September 30, 2020.  CMS Ex. 2.  In a list of "pertinent facts," Petitioner explained that he had pleaded guilty to an unspecified offense on July 14, 2011, and that his probation had been terminated on March 5, 2014.  CMS Ex. 2 at 1.  Petitioner presented the following argument, in full, in a section entitled, "Analysis":  "Based on the facts established above, there is no underlying felony on which to base either the Revocation or Preclusion."  CMS Ex. 2 at 2.

CMS, through its Provider Enrollment & Oversight Group, issued a reconsidered determination on December 18, 2020, in which it upheld the revocation of Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) and his placement on the Preclusion List.  P. Ex. 3.  In support of upholding the revocation determination, CMS explained the following:

CMS finds that [Petitioner's] felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries.  On October 8, 2008, the United States Postal Inspection Service (USPIS) interviewed [Petitioner] in a criminal investigation (see Exhibit 8).  The matter was in

**Page 5**

connection with the travel agency that [Petitioner] owned.  During the interview, [Petitioner] stated that he made all the customers of the travel agency show their identification to match the credit cards that were charged.  In addition, [Petitioner] stated that he drove the customers of his travel agency in his Honda Accord or Nissan Maxima out of the State of Georgia.  However, this was untrue and [Petitioner] knew these statements were false, fictitious, and fraudulent when he made them.  [Petitioner's] criminal history of making false statements indicates that similar dishonest behavior could be replicated in the Medicare program. Payment under the Medicare program is made for claims submitted in a manner that relies upon the trustworthiness of our Medicare partners.  Given the facts underlying [Petitioner's] felony conviction, Trust Funds and the Medicare beneficiaries may be at risk if he continues to participate in the program.  It necessarily follows that placing Trust Funds at risk is also a detriment to Medicare beneficiaries.  Therefore, CMS finds that [Petitioner's] conviction is detrimental to the best interests of the Medicare program and its beneficiaries.  As a result, CMS upholds the revocation of [Petitioner's] Medicare enrollment, pursuant to § 424.535(a)(3), in addition to the corresponding re-enrollment bar.

P. Ex. 3 at 3.  CMS also upheld Petitioner's inclusion on its Preclusion List based on its determination that Petitioner's offense was detrimental to the Medicare program, pursuant to 42 C.F.R. §§ 422.2, 423.100.  P. Ex. 3 at 3-4.  Notably, CMS explained that it considered "lying to a federal investigator during a criminal investigation to be a severe offense."  P. Ex. 3 at 4.  CMS further remarked that Petitioner "intentionally lied to the investigator with the purpose of deceiving her" and that his "actions call into question his ability and willingness to be an honest and trustworthy partner in the Medicare program."  P. Ex. 3 at 4.  CMS explained that it "is reliant on its partners to act with integrity to ensure that the services they render and the claims they submit comply with Medicare requirements."  P. Ex. 3 at 4.

Petitioner, who is represented by counsel, filed a request for an administrative law judge (ALJ) hearing on February 16, 2021.  CMS filed a combined brief and motion for summary judgment (CMS Br.), along with 15 proposed exhibits (CMS Exs. 1-15).  Petitioner submitted a pre-hearing brief in opposition to CMS's motion for summary judgment (P. Br.) and 14 proposed exhibits (P. Exs. 1‐14), with P. Exs. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 14 being duplicative of CMS's proposed exhibits.  *See*Pre-Hearing Order § 8 ("Petitioner should not file as proposed exhibits any documents that CMS has

**Page 6**

already filed among its proposed exhibits.").  Nonetheless, in the absence of objections by CMS, I admit Petitioner's proposed exhibits.

Petitioner objects to CMS Exs. 3, 14, and 15 on the basis of relevance, arguing that CMS submitted these exhibits "presumably to show that [Petitioner] mis-identified his conviction as a 'misdemeanor conviction.'"  The instant matter involves an enrollment revocation, and Petitioner has not demonstrated that the information provided in his enrollment applications is neither irrelevant nor immaterial to his enrollment in the Medicare program.  *See*42 C.F.R. § 498.61 (noting that an ALJ rules on admissibility of evidence and that "[e]vidence may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure").  I overrule Petitioner's objections and admit all proposed exhibits.

Because the parties have not submitted the testimony of any witnesses, a hearing is unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order §§ 12-14.  The record is closed, and I issue this decision on the merits.3

II.  Issues

1. Whether CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) based on his July 14, 2011 felony conviction; and,

2. Whether CMS had a legitimate basis to uphold Petitioner's placement on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.

III.  Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.1(g), 498.3(b)(17) and (20), 498.5(*l*)(2); *see*42 U.S.C. § 1395cc(j)(8).

IV.  Findings of Fact, Conclusions of Law, and Analysis4

As a nurse practitioner, Petitioner is a supplier of health care services for purposes of the Medicare program.  *See* 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.20(b)(1).  In order to participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.

**Page 7**

CMS may revoke a supplier's enrollment and billing privileges for any reason stated in 42 C.F.R. § 424.535(a).

CMS may revoke a supplier's enrollment based on the existence of a felony conviction, as set forth in 42 C.F.R. § 424.535(a)(3), which currently provides:

(3) *Felonies.*(i) The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 [C.F.R. §] 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.

42 C.F.R. § 424.535(a)(3).  At the time of the initial determination, CMS could impose a bar to re‐enrollment for a minimum of one year, but no more than ten years.  42 C.F.R. § 424.535(c)(1)(i).

Additionally, CMS has established a single list of providers and prescribers who are precluded from being reimbursed for Medicare Advantage items or services or Part D drugs they furnish or prescribe to Medicare beneficiaries.   42 C.F.R. §§ 422.222, 423.120(c)(6).  As relevant here, CMS may place an individual, entity, or prescriber on its Preclusion List under the following circumstances:

(3) The [individual, entity, or prescriber], regardless of whether [they are or were] enrolled in Medicare, has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.  Factors that CMS considers in making such a determination . . . are –

(i) The severity of the offense;
(ii) When the offense occurred; and
(iii) Any other information that CMS deems relevant to its determination.

42 C.F.R. §§ 422.2, 423.100.

**Page 8**

***1. On or about October 8, 2008, Petitioner was interviewed by a United States Postal Inspector in connection with a criminal investigation concerning access device fraud being conducted by the USPIS.***

***2. Petitioner admitted that he made false statements to the Postal Inspector, knowing that the statements were false when they were made, and that his statements had a "natural tendency to influence or were capable of influencing a decision of a department or agency in reaching a required decision, namely, the decision [whether] to recommend prosecution for access device fraud and the decision of the United States Attorney's Office to prosecute for access device fraud."***

***3. Petitioner entered a plea of guilty to a felony information charging that he violated 18 U.S.C. § 1001, False Statements During an Investigation, and his sentence included a five-year term of probation and payment of a $12,000 fine.***

***4. In May 2012, the Georgia Board of Nursing suspended Petitioner's license, with enforcement of the suspension suspended.***

***5. In June 2015, the California Board of Registered Nursing accepted Petitioner's surrender of his registered nurse license as its imposition of discipline.***

***6. Petitioner submitted an application to enroll in the Medicare program on June 17, 2020, at which time he did not disclose his felony conviction or the aforementioned professional disciplinary actions.***

***7. Novitas approved Petitioner's enrollment application five days later, on June 22, 2020.***

***8. On August 24, 2020, Petitioner updated his enrollment record, at which time he reported, inter alia, a "misdemeanor conviction" within the preceding 10 years, and that the conviction had been "dismissed" and "expunged."***

***9. On September 23, 2020, Novitas revoked Petitioner's enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) and placed him on CMS's Preclusion List.***

***10. On December 18, 2020, CMS upheld the revocation of Petitioner's enrollment and billing privileges and placement on the Preclusion List.***

**Page 9**

***11. CMS properly upheld the revocation of Petitioner's enrollment pursuant to 42 C.F.R. § 424.535(a)(3) because he had a felony conviction for making a false statement in connection with a criminal investigation within the previous 10 years, and CMS has determined that this offense is detrimental to the best interests of the Medicare program and its beneficiaries.***

***12. Because Petitioner has a felony conviction for making a false statement within the preceding 10 years, and that offense is detrimental to the best interests of the Medicare program, CMS had a legitimate basis to place him on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.***

Petitioner does not dispute that he has a felony conviction within the previous 10 years for purposes of section 424.535(a)(3).  P. Br. at 7-9.  Rather, Petitioner disputes the determination that his offense was detrimental to the best interests of the Medicare program and its beneficiaries.  P. Br. at 13-21.

The Departmental Appeals Board (DAB) has held "that CMS may revoke a . . . supplier's billing privileges based solely on a qualifying felony conviction, without regard to equitable or other factors."  *Brian K. Ellefsen, DO*, DAB No. 2626 at 9 (2015).  The DAB has also explained that CMS may revoke enrollment and billing privileges based solely on a qualifying felony conviction it has determined by regulation to be detrimental to the best interests of the Medicare program and its beneficiaries.  *See Fady Fayad, M.D.*, DAB No. 2266 at 15-16 (2009), *aff'd Fayad v. Sebelius*, 803 F. Supp. 2d 699 (E.D. Mich. 2011); *see* 42 C.F.R. § 424.535(a)(3).

In explaining how it would determine whether an offense is detrimental to the best interests of the Medicare program and its beneficiaries, CMS noted, in the Final Rule adding that provision to section 424.535(a)(3), that "[t]he determination of whether a particular conviction will or will not result in the revocation or denial of Medicare enrollment will depend upon the specific facts of each individual situation."  79 Fed. Reg. 72,500, 72,510 (Dec. 5, 2014).  CMS explained:

We believe that the term "determines" makes clearer that the lists of felonies in these two provisions are not exhaustive and include other felonies that CMS may deem as meeting the "detrimental" standard based on the particular facts of the case.  Second, and to further emphasize CMS' discretion to use felonies other than those specified in §§ 424.530(a)(3) and 424.535(a)(3) as grounds for denial or revocation, we have included the phrase "but are not limited in scope or severity" within both provisions.

**Page 10**

However, notwithstanding these changes, we again stress that we will only exercise our authority under §§ 424.530(a)(3) and 424.535(a)(3) after very careful consideration of the relative seriousness of the underlying offense and all of the circumstances surrounding the conviction.  It should in no way be assumed that every felony conviction will automatically result in a denial or revocation.

*Id.*at 72,511-12.  In stating such, CMS indicated that any determination that a felony not contained in the list at 42 C.F.R. § 424.535(a)(3)(ii)(A)-(D) would result in a revocation of enrollment would first require CMS to determine that the offense was detrimental to the best interests of the Medicare program and its beneficiaries.  *Id.*

The DAB has explained that it "has repeatedly held that if the conviction is for a crime other than one of the enumerated felonies, 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."  *Brenda Lee Jackson*,DAB No. 2903 at 8 (2018).  The DAB has also explained that "[t]he ALJ's . . . role in an appeal of CMS's . . . revocation of enrollment in the Medicare program is to determine whether CMS had a legal basis for its action" and "[i]f it did, then [the ALJ is] bound to affirm the . . . revocation."  *Dr. Robert Kanowitz*, DAB No. 2942 at 4 (2019).  The DAB has further discussed that "the right to review of CMS's determination by an ALJ serves to determine whether CMS had the authority to revoke [the petitioner's] Medicare billing privileges, not to substitute the ALJ's discretion about whether to revoke."  *Letantia Bussell, M.D.*, DAB No. 2196 at 13 (2008) (emphasis omitted).  As such, the scope of my review is whether CMS had a legitimate basis to revoke Petitioner's enrollment and billing privileges, and not whether I would make the same determination in the first instance.

Although Petitioner disputes CMS's statement of facts in its reconsidered determination, he has not shown that CMS's determinations are premised on an inaccurate factual basis.  Petitioner argues that CMS "incorrectly describes [his] felony offense as having occurred between 'March and October, 2008,' thus evidencing a pattern of ongoing conduct."  P. Br. at 11.  Petitioner argues that CMS demonstrated an "inaccurate belief that Petitioner was convicted on the basis of ongoing criminal conduct that occurred over a period of six months."  P. Br. at 11.  However, CMS unambiguously indicated that Petitioner had pleaded guilty "to the felony of making False Statements during an Investigation" and that he had made false statements to a USPIS inspector *on* October 8, 2008.  P. Ex. 3 at 3 ("On October 8, 2008, the [USPIS] interviewed [Petitioner] in connection with the travel agency that [he] owned.").  In fact, CMS recognized that Petitioner made his false statements during a single interview, stating:  "During *the* interview, [Petitioner] stated that he made all the customers of the travel agency show their identification to match their credit cards that were charged."  P. Ex. 3 at 3 (emphasis added).  To the extent CMS referenced the time frame of "March to October 2008" in its

**Page 11**

decision, this reference is contained in CMS's discussion of Petitioner's placement on the Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100, and as will be explained below, CMS favorably considered this factor.

Petitioner also argues that CMS erred when it stated that Petitioner's offense was "several years ago" (P. Br. at 12), despite the fact that CMS unquestionably recognized that Petitioner provided false statements on October 8, 2008.  P. Ex. 3 at 3.  Petitioner acknowledged that CMS's reference to a time frame of "several years ago" is technically accurate, yet nonetheless criticized CMS's word selection as being inconsistent with ordinary usage of the term, "several years ago."  P. Br. at 12 ("According to Merriam Webster, the word 'several' means more than two and less than many, and often is used colloquially to mean three to five.")5
  Regardless of whether Petitioner disagrees with CMS's word usage, it is clear that CMS understood that Petitioner committed the criminal conduct in 2008.  P. Ex. 3 at 3.  Petitioner has not identified any factual error underpinning CMS's analysis.

As I previously explained, I must consider whether CMS had a proper basis to revoke Petitioner's Medicare enrollment.  In the context of evaluating enrollment in Medicare, a large government program that makes payments to suppliers based on their claims that they have provided items or services to its beneficiaries, Petitioner was convicted of a serious felony.  Petitioner lied to a federal investigator who was investigating whether he had committed fraud-related crimes, and he admitted that these false statements "concerned a material matter" and had a "natural tendency to influence or were capable of influencing" the criminal prosecution process.  CMS Ex. 8 at 4.  CMS explained that the Medicare program, when it makes payments for claims, "relies upon the trustworthiness" of suppliers such as Petitioner.  P. Ex. 3 at 3.  CMS determined that based on his past felonious false statement to a federal investigator, Petitioner's participation in the Medicare program placed the Medicare Trust Fund at risk.  P. Ex. 3 at 3.

Petitioner has proven himself to be untrustworthy based on his felony conviction pursuant to 18 U.S.C. § 1001.  While the passage of 10 years does not necessarily make someone who has been convicted of a felony offense more trustworthy, CMS has determined that 10 years, in a circumstance such as this one, is the length of time it may prohibit such an

**Page 12**

individual from enrolling in the Medicare program.6
  *See*42 C.F.R. §§ 424.530(a)(3), 424.535(a)(3).  CMS had a legitimate basis to determine that the offense of providing false statements in connection with a criminal fraud investigation is detrimental to the best interests of the Medicare program and its beneficiaries, and CMS was therefore authorized to revoke Petitioner's Medicare enrollment and billing privileges pursuant to section 424.535(a)(3).

CMS also had a legitimate basis to place Petitioner on its Preclusion List.  CMS Ex. 3 at 3-4.  CMS, in assessing the severity of the offense, remarked that "lying to a federal investigator during a criminal investigation," with the "purpose of deceiving" the investigator, "call[s] into question [Petitioner's] ability and willingness to be an honest and trustworthy partner in the Medicare program."  P. Ex. 3 at 4.

In an effort to diminish the severity of his offense, Petitioner argues that making a false statement is not equivalent to other offenses "such as murder, assault, rape, embezzlement, extortion and insurance fraud."  P. Br. at 17.  However, the standard for assessing whether an offense is detrimental to the Medicare program is not whether the crime is repugnant or heinous, but, rather, whether the offense is detrimental to the best interests of the Medicare program.  Petitioner knowingly lied to a federal investigator in connection with an investigation of his own suspected fraudulent criminal conduct.  Such deception strikes at a fundamental concern of CMS—protecting beneficiaries and the Medicare Trust Fund from untrustworthy people.

Petitioner also argues that the "remoteness" of his criminal offense weighs against his inclusion on the Preclusion List.  P. Br. at 18-19.  Contrary to Petitioner's interpretation of the reconsidered determination, CMS did consider this factor.  In fact, CMS's

**Page 13**

consideration of this factor can be viewed as favorable to him.  P. Ex. 3 at 4.  Yet, CMS determined that the passage of time did not, in and of itself, warrant against Petitioner's placement on the Preclusion List because of the level of severity of his offense, "which implicates [his] trustworthiness as a provider of services to Medicare beneficiaries."  P. Ex. 3 at 4.  In assessing a placement on the Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100, CMS is required to consider the factors of severity, when the offense occurred, and any other information it deems relevant to its determination.  However, 42 C.F.R. §§ 422.2 and 423.100 do not establish a *­*three-part test in which all three factors must be satisfied in order to uphold placement on the Preclusion List.  Rather, CMS is required to *consider*the three factors, which it did.  42 C.F.R. §§ 422.2, 423.100.  Petitioner's argument regarding the second factor is premised on a misunderstanding of CMS's discussion; although CMS agreed that Petitioner's criminal offense occurred years ago, it nonetheless determined that the severity of the offense outweighed the passage of time.  Petitioner has not identified any error in CMS's analysis.

Finally, Petitioner argues that CMS erred in its consideration of other factors it deems relevant to its determination.  P. Br. at 19-20.  Petitioner argues that he complied with the terms of his criminal sentence, had his probation terminated early, and complied with the terms of disciplinary action against his nursing license.  P. Br. at 19-20.  Petitioner has not identified any error in CMS's consideration that professional licensing boards imposed discipline and that he was sentenced to probation and to pay a $12,000 fine.  P. Br. at 19; *see*P. Ex. 3 at 4.  In fact, Petitioner concedes such an analysis is relevant.  P. Br. at 19.  To the extent Petitioner believes that his satisfaction of his criminal sentence and compliance with the terms of professional discipline, to include an early termination of probation, weigh against a determination that his offense was detrimental to the Medicare program, Petitioner points to no requirement that CMS must deem compliance with Court and professional board-ordered conditions to be dispositive of whether an offense is detrimental to the Medicare program.

Along those lines, Petitioner also argues that CMS should be encouraging "the sort of remedial action" taken by Petitioner to satisfy the terms of his criminal sentence and professional discipline and resume his professional career and that CMS's failure to encourage such remedial action has a "punitive" effect because he "cannot work as a nurse practitioner without being an enrolled provider in Medicare."7
  P. Br. at 20-21.  Petitioner misunderstands the purpose of an enrollment revocation, which is to protect the Medicare program and its beneficiaries, rather than to promote and reward the

**Page 14**

rehabilitation of criminal offenders.

CMS considered the regulatory factors set forth in 42 C.F.R. §§ 422.2 and 423.100 and had a legitimate basis to uphold Petitioner's placement on the Preclusion List.

V.  Conclusion

I affirm the revocation of Petitioner's Medicare enrollment and billing privileges and his placement on CMS's Preclusion List.


          /s/
        Leslie C. Rogall

                      Administrative Law Judge
      1. A violation of 18 U.S.C. § 1001 is punishable by up to 5 years of incarceration and is a Class E felony.  18 U.S.C. § 3559(a)(5). back to note 1
                      2. The Form CMS-855I enrollment application, as relevant here, instructs that a final adverse legal action includes any federal or state felony conviction and any current or past revocation, suspension, or voluntary surrender of a medical license in lieu of further disciplinary action. Centers for Medicare & Medicaid Services, Medicare Enrollment Application Form CMS-855I, https://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/Downloads/cms855i.pdf (last visited May 20, 2021). back to note 2
                      3. As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS's motion for summary judgment. back to note 3
                      4. My findings of fact and conclusions of law are in bold and italics. back to note 4
                      5. Owing to the fact that colloquialism can vary due to numerous factors, such as native language proficiency, I decline Petitioner's invitation to analyze word selection under such a standard. back to note 5
                      6. CMS did not consider Petitioner's conduct during the enrollment process as a factor in its determinations.  I nonetheless note, in response to Petitioner's complaint that his "untrustworthiness is being measured based on two statements, unrelated to health care, made to an investigator nearly 13 years ago" (P. Br. at 18), that his conduct during the enrollment process could have, in and of itself, led to the revocation of his enrollment.  See 42 C.F.R. § 424.535(a)(4) (revocation based on false and misleading statements); 42 C.F.R. § 424.535(c)(1)(i) (authorizing a bar to re-enrollment of up to 10 years).  Not only did Petitioner affirmatively deny that he had been convicted of a felony and that he had not been the subject of professional disciplinary actions (CMS Ex. 14 at 2), but he subsequently, in August 2020, misrepresented that he had been convicted of only a misdemeanor offense.  CMS Ex. 3 at 4.  To the extent Petitioner claims he misreported a misdemeanor conviction because he "did not know the proper legal terminology," it is simply preposterous that he would be unaware he is a convicted felon.  See P. Br. at 15 n 4.  Had Petitioner disclosed his felony conviction in June 2020, he may never have been approved to enroll in the Medicare program.  See 42 C.F.R. § 424.530(a)(3). back to note 6
                      7. Petitioner did not provide any factual support for this statement.  I recognize that job opportunities may be limited for a nurse practitioner who is not enrolled in the Medicare program, but I do not accept the factual premise, in the absence of any supporting evidence or authority, that there are no job opportunities available for such an individual. back to note 7 Back to top
    Contact HHS
    
                        
                                            
      
      
      Careers
    
                        
                                            
      
      
      HHS FAQs
    
                        
                                            
      
      
      Nondiscrimination NoticeHHS Archive
    
                        
                                            
      
      
      Accessibility Statement
    
                        
                                            
      
      
      Privacy Policy
    
                        
                                            
      
      
      Viewers & PlayersBudget/Performance
    
                        
                                            
      
      
      Inspector General
    
                        
                                            
      
      
      Web Site Disclaimers
    
                        
                                            
      
      
      EEO/No Fear ActFOIA
    
                        
                                            
      
      
      The White House
    
                        
                                            
      
      
      USA.gov
    
                        
                                            
      
      
      Vulnerability Disclosure Policy
        Sign Up for Email Updates

Receive the latest updates from the Secretary, Blogs, and News Releases.

Sign Up
  HHS Headquarters
          200 Independence Avenue, S.W.
                  Washington, D.C. 20201
                  Toll Free Call Center: 1-877-696-6775​ Disclaimer Policy: Links with this icon () mean that you are leaving the HHS website. The Department of Health and Human Services (HHS) cannot guarantee the accuracy of a non-federal website.
                  Linking to a non-federal website does not mean that HHS or its employees endorse the sponsors, information, or products presented on the website. HHS links outside of itself to provide you with further information.
                  You will be bound by the destination website's privacy policy and/or terms of service when you follow the link.
                  HHS is not responsible for Section 508 compliance (accessibility) on private websites. For more information on HHS's web notification policies, see Website Disclaimers.
 Continue
                  Go back