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                              John A. Hartman, D.O., DAB CR5082 (2018)
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John A. Hartman, D.O., DAB CR5082 (2018)








  
  
    

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





John A. Hartman, D.O.
(NPI: 1225032832)
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-18-109Decision No. CR5082April 27, 2018

        
              
    

      DECISION
The Medicare­ enrollment application of Petitioner, John A. Hartman, D.O., is denied pursuant to 42 C.F.R. § 424.530(a)(3).1
I. Background
Wisconsin Physicians Service (WPS), a Medicare administrative contractor (MAC) for the Centers for Medicare & Medicaid Services (CMS), notified Petitioner by letter dated April 13, 2017, that his application to enroll in Medicare was denied. The MAC cited 42 C.F.R. § 424.530(a)(3) and (4) as the bases for the denial. CMS Exhibits (Exs.) 1 at 10-11; 2.
Petitioner requested reconsideration on May 24, 2017. CMS Ex. 1 at 8-9. On June 27, 2017, WPS issued a reconsidered determination upholding the denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(3) but not 42 C.F.R. § 424.530(a)(4). CMS Ex. 3 at 5. On August 28, 2017, CMS issued a reopened and revised reconsidered determination
**Page 2**
upholding denial of enrollment pursuant to 42 C.F.R. § 424.530(a)(3). CMS Ex. 1 at 1-7. The revised reconsidered determination is the determination subject to my review. *Neb Group of Arizona LLC*, DAB No. 2573 at 7 (2014).
On October 27, 2017, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ). On November 2, 2017, the case was assigned to me for hearing and decision, and I issued an Acknowledgment and Prehearing Order (Prehearing Order).
On December 4, 2017, CMS filed a prehearing brief and five exhibits (Departmental Appeals Board Electronic Filing System (DAB E-File) # 4 and 4a-4h). On December 5, 2017, I rejected the CMS exhibits for failure to comply with the requirements of the Prehearing Order. On December 7, CMS filed an amended exchange, including its brief (CMS Br.) and CMS Exs. 1 through 3, that conformed to the requirements of the Prehearing Order, and all citations in this decision are to the amended exchange filed by CMS (DAB E-File # 6, 6a-6e). On December 29, 2017, Petitioner filed a prehearing brief (P. Br.) and Petitioner’s exhibits (P. Exs.) 1 through 4. No motion for summary judgment was filed, but upon review I determined summary judgment might be appropriate. Therefore, on February 15, 2018, I informed the parties that I intended to consider the appropriateness of summary judgment *sua sponte*. I gave the parties an opportunity to file briefs addressing summary judgment and to file any supporting affidavits or declarations. On February 27, 2018, CMS waived any additional reply. On March 15, 2018, Petitioner filed a supplemental brief (P. Supp. Br.) and the declarations of Petitioner and Michele Meyer. Petitioner did not mark the declarations as exhibits, but I treat them as if marked P. Exs. 5 and 6, respectively.
Petitioner has not objected to my consideration of CMS Exs. 1 through 3, and they are admitted as evidence. CMS has not objected to my consideration of P. Exs. 1 through 6, and they are admitted.
II. Discussion
**A. Applicable Law**
Section 1831 of the Social Security Act (Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B. Administration of the Part B program is through the MACs. Act § 1842(a) (42 U.S.C. § 1395u(a)). Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and
**Page 3**
suppliers.2
 Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). Petitioner is a supplier under the Act.
The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for the enrollment in Medicare of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations, such as denial of enrollment and revocation of enrollment and billing privileges. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505, a supplier such as Petitioner must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.
The Secretary has delegated the authority to accept or deny enrollment applications to CMS. Pursuant to the Secretary’s regulations, CMS may deny a provider’s or supplier’s enrollment application for any of the reasons set out in 42 C.F.R. § 424.530(a). In this case, CMS has denied Petitioner’s application under 42 C.F.R. § 424.530(a)(3), which provides, in pertinent part:
(a) *Reasons for denial*. CMS may deny a provider’s or supplier’s enrollment in the Medicare program for the following reasons:
* * * *
(3) *Felonies*. The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.
**Page 4**
(i) Offenses include, but are not limited in scope or severity to —
(A) Felony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.
(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.
(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that results in a conviction of criminal neglect or misconduct.
(D) Any felonies that would result in mandatory exclusion under section 1128(a) of the Act.
(ii) Denials based on felony convictions are for a period to be determined by the Secretary, but not less than 10 years from the date of conviction if the individual has been convicted on one previous occasion for one or more offenses.
42 C.F.R. § 424.530(a)(3)3
; Act §§ 1842(h)(8), 1866(b)(2)(D).
Regarding the definition of “convicted,” 42 C.F.R. § 1001.2, in pertinent part, states:
Convicted means that—
(a) A judgment of conviction has been entered against an individual or entity by a Federal, State or local court, regardless of whether:
**Page 5**
(1) There is a post-trial motion or an appeal pending, or
(2) The judgment of conviction or other record relating to the criminal conduct has been expunged or otherwise removed;
(b) A Federal, State or local court has made a finding of guilt against an individual or entity;
(c) A Federal, State or local court has accepted a plea of guilty or nolo contendere by an individual or entity; or
(d) An individual or entity has entered into participation in a first offender, deferred adjudication or other program or arrangement where judgment of conviction has been withheld.
42 C.F.R. § 1001.2.
A prospective supplier whose enrollment application has been denied may request reconsideration and review as provided by 42 C.F.R. pt. 498. 42 C.F.R. § 424.545(a). A prospective supplier submits a written request for reconsideration to CMS or its contractor. 42 C.F.R. § 498.22(a), (b). CMS or its contractor must give notice of its reconsidered determination to the prospective supplier, giving the reasons for its determination, specifying the conditions or requirements the prospective supplier failed to meet, and advising of the right to an ALJ hearing. 42 C.F.R. § 498.25. If the decision on reconsideration is unfavorable to the prospective supplier, the prospective supplier has the right to request a hearing by an ALJ and further review by the Departmental Appeals Board (the Board). Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), 498.5. A hearing on the record, also known as an oral hearing, is required under the Act. *Crestview Parke Care Ctr. v. Thompson*, 373 F.3d 743, 748-51 (6th Cir. 2004). The prospective supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records. 42 C.F.R. § 424.545(c).
**B. Issues**
Whether summary judgment is appropriate; and
Whether there was a basis for the denial of Petitioner’s application to enroll in the Medicare program.
**Page 6**
**C. Findings of Fact, Conclusions of Law, and Analysis**
My conclusions of law are set forth in bold text followed by my findings of undisputed fact and analysis.
**1. Summary judgment is appropriate.**
On February 15, 2018, I informed the parties I was *sua sponte*considering resolving this case by summary judgment. *See* Fed. R. Civ. Pro. 56(f)(3); Civil Remedies Division Procedures § 19.a.iii. I gave the parties the opportunity to file briefs addressing summary judgment and any supporting affidavits or declarations. CMS waived filing additional pleadings. Petitioner filed a supplemental brief (P. Supp. Br.) and P. Exs. 5 and 6 on March 15, 2018.
Petitioner, a supplier denied enrollment in Medicare, has a right to a hearing and judicial review, and a hearing on the record is required under the Act. Act §§ 205(b), 1866(h)(1), (j); 42 C.F.R. §§ 498.3(b)(17) and 498.5(*l*); *Crestview*, 373 F.3d at 748-51. A party may waive appearance at an oral hearing but must do so affirmatively in writing. 42 C.F.R. § 498.66.
Petitioner, in his response to my February 15, 2018 order, stated:
Petitioner takes no position as to the applicability of Fed. R. Civ. P. 56(f)(3). However, to expedite this matter, Petitioner has no objection if the ALJ wishes to make a decision as a matter of law based on the undisputed facts. Petitioner agrees that the facts he has proffered in this matter are not in dispute and asserts that he is entitled to judgment as a matter of law.
P. Supp. Br. at 1-2. Thus, Petitioner agrees that summary judgment may be appropriate and requests summary judgment in his favor. CMS inexplicably waived briefing on summary judgment and takes no position on whether or not summary judgment is appropriate in favor of either party.
Summary judgment is not automatic but is limited to certain specific conditions. The procedures applicable to the adjudication of this case are at 42 C.F.R. pt. 498. The regulations do not establish or recognize a summary judgment procedure. However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. *See, e.g.*, *Ill. Knights Templar Home*, DAB No. 2274 at 3-4 (2009); *Garden City Med. Clinic*, DAB No. 1763 (2001); *Everett Rehab. & Med. Ctr.*, DAB No. 1628 at 3 (1997). The Board has also recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. Pro. 56 and related cases provide useful
**Page 7**
guidance for determining whether summary judgment is appropriate. Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order. The parties were given notice by the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. Pro. 56 will be applied. Prehearing Order ¶¶ II.D. & G.
Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor. The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven. *Mission Hosp. Reg’l Med. Ctr.*, DAB No. 2459 at 4 (2012) (and cases cited therein); *Experts Are Us, Inc.*, DAB No. 2452 at 4 (2012) (and cases cited therein); *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300 at 3 (2010) (and cases cited therein); *see also Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 248 (1986).
The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differs from that used in resolving a case after a hearing. On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record. Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true. *Holy Cross Vill. at Notre Dame, Inc.*, DAB No. 2291 at 5 (2009). The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden. *Dumas Nursing & Rehab**.**, L.P.*, DAB No. 2347 at 5 (2010). The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden. However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498. *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d*,*Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 F. App’x 181 (6th Cir. 2005).
In this case, I conclude that there is no genuine dispute as to any material fact pertinent to a denial of enrollment under 42 C.F.R. § 424.530(a)(3) that requires a trial. There is no
**Page 8**
dispute that Petitioner was convicted of a felony within the ten years preceding his application to enroll in Medicare. The undisputed material facts establish a basis for the denial of Petitioner’s enrollment in Medicare under 42 C.F.R. § 424.530(a)(3) as a matter of law. Accordingly, I conclude that summary judgment is appropriate.
**2. Petitioner was convicted, within the meaning of 42 C.F.R. § 1001.2, of a state felony offense.**
**3. The Secretary has given broad discretion to CMS to determine which state or federal felony convictions are detrimental to the Medicare program or its beneficiaries. 42 C.F.R. § 424.530(a)(3); 79 Fed. Reg. 72,500, 72,531-32 (Dec. 5, 2014).**
**4. There is a basis for denial of Petitioner’s enrollment in Medicare pursuant to 42 C.F.R. § 424.530(a)(3) based upon Petitioner’s state felony conviction which CMS has determined is detrimental to Medicare and its beneficiaries.**
**5. The issue for hearing and decision is whether there is a basis for denial of Petitioner’s Medicare enrollment and, if there is a basis for denial, my jurisdiction does not extend to review whether CMS properly exercised its discretion to deny Petitioner’s Medicare enrollment application.**
**a. Facts**
The material facts are undisputed.
Petitioner admits that on May 1, 2009, he was involved in a car wreck for which he was charged with violation of Mo. Rev. Stat. § 565.060.1(4) (2006),4
 assault in the second degree by operating a motor vehicle while intoxicated that resulted in injury to another. The offense is a class C felony pursuant to Mo. Rev. Stat. § 565.060.3. Petitioner admits that the accident occurred when he unintentionally ran a red light while he was intoxicated and ran into a vehicle driven by a local judge. Petitioner asserts in his declaration that he believes the judge suffered no injury. However, in his brief he concedes that his operation of a vehicle while intoxicated resulted in at least minor injury. P. Ex. 5; RFH at 2-3; P. Br. at 1-2, 6. Furthermore, Mo. Rev. Stat. § 565.060.1(4) includes the element that one acts “with criminal negligence to cause physical injury to
**Page 9**
any other person than himself.” In order to providently plead guilty to a violation of the Missouri statute, Petitioner would have been required to admit to the factual basis necessary to satisfy the element of injury to another. Mo. S. Ct. Rule 24.02(e); *Ennis v. State*, 887 S.W. 2d 771, 772-73 (Mo. Ct. App. 1994). Petitioner does not dispute that he pleaded guilty, and I infer that by his guilty plea Petitioner admitted that another was injured by his criminal act.
Petitioner reported on his Medicare application (CMS-855I) that the accident occurred on May 10, 2009 (which I consider a scrivener’s error), that he was charged with the felony of second degree operation of a vehicle while intoxicated resulting in an injury, and that he received a suspended imposition of sentence and was placed on probation from September 1, 2012 through April 1, 2015. CMS Ex. 1 at 28.
In his settlement agreement with the Missouri State Board of Registration for the Healing Arts, Petitioner stipulated that he was convicted of assault in the second degree on June 21, 2012, based on a May 1, 2009 car wreck at which time he was intoxicated and there were injuries. CMS Ex. 1 at 48.
Petitioner submitted a CMS-855I and a CMS-855R to enroll in Medicare and reassign his Medicare benefits, which he signed on March 15, 2017. CMS Ex. 1 at 39, 44; RFH at 3; P. Br. at 3. There is no dispute that both applications were received by the MAC. The date of receipt by the MAC is not reflected in the record, but I infer receipt was between March 15, 2017, the date Petitioner signed the documents, and April 13, 2017, the date of the initial decision by the MAC denying enrollment. There is no dispute that Petitioner’s guilty plea on June 21, 2012, is within ten years of WPS’s receipt of Petitioner’s applications to enroll in Medicare.
**b. Analysis**
CMS denied Petitioner’s enrollment on reconsideration pursuant to 42 C.F.R. § 424.520(a)(3), based on the fact that he was convicted within the ten years prior to his application of a felony that CMS has determined is detrimental to Medicare and its beneficiaries. I conclude that there is a basis for denial of Petitioner’s enrollment in Medicare pursuant to 42 C.F.R. § 424.530(a)(3).
Petitioner was previously enrolled in Medicare with billing privileges. Based on the same conviction as the one before me, Petitioner’s enrollment in Medicare was revoked by CMS on March 6, 2013. CMS Ex. 1 at 65-67; RFH at 3. Petitioner requested ALJ review of the revocation and review by the Board. Petitioner raised many of the same challenges to the revocation as he does in this proceeding, all of which were rejected by the Board. *John Hartman, D.O.*, DAB No. 2564 (2014). I do not treat the prior Board decision as dispositive of the issues in this case as Petitioner has a right to ALJ review of whether or not CMS had a basis for denial of Petitioner’s enrollment.
**Page 10**
The Secretary has delegated virtually unfettered discretion to CMS to decide what constitutes a felony offense detrimental to the best interests of the Medicare program and it beneficiaries under 42 C.F.R. § 424.530(a)(3). 79 Fed. Reg. 72,500, 72,531-2 (Dec. 5, 2014). Effective February 3, 2015, 42 C.F.R. § 424.530(a)(3) was amended to permit CMS to determine that a felony is detrimental to Medicare or its beneficiaries even if it is not one described in 42 C.F.R. § 424.520(a)(3)(i). The preamble5
 to the revised regulation states:
First, we proposed to modify the list of felonies in each section such that **any felony conviction** that we determine to be detrimental to the best interests of the Medicare program and its beneficiaries would constitute a basis for denial or revocation. We stated that considering the very serious nature of any felony conviction, our authority in §§ 424.530(a)(3)(i) and 424.535(a)(3)(i) should not be restricted to the categories of felonies identified in (a)(3)(i); this was especially true considering that the types of felony offenses often vary from state to state.
79 Fed. Reg. 72,500, 72,509-10 (emphasis added)*.*The list of offenses in 42 C.F.R. § 424.530(a)(3)(i) are now clearly a list of examples of the types of offenses that may be found detrimental to Medicare or its beneficiaries. Contrary to Petitioner’s arguments, the revised reconsidered determination dated August 28, 2017, is good evidence that CMS, specifically the CMS hearing officer, exercised discretion and determined that Petitioner’s offense was detrimental to Medicare and its beneficiaries making reference to the list of offenses in the regulation. CMS Ex. 1 at 1-7. It is undisputed that Petitioner was convicted of a state felony within the ten years preceding receipt by WPS of his application to enroll. Petitioner was convicted of violating a state law which characterizes the offense as an assault with injury to another. Crimes against persons, including assaults and similar crimes are specifically listed in 42 C.F.R. § 424.530(a)(3)(i)(A) as examples of offenses that are detrimental to Medicare and its beneficiaries. Accordingly, CMS had a basis to deny Petitioner enrollment pursuant to 42 C.F.R. § 424.530(a)(3). My review in this case is limited to determining whether
**Page 11**
CMS had a basis for denial of enrollment under 42 C.F.R. § 424.530(a)(3). *Letantia Bussell, M.D.*, DAB No. 2196 at 13 (2008).
Petitioner raises several legal challenges to the denial of enrollment, none of which are persuasive.
Petitioner argues that CMS failed to exercise its discretion to determine that Petitioner’s offense was detrimental and simply relied upon the list of “per se detrimental” felonies in 42 C.F.R. § 424.530(a)(3)(i)(A), which includes a felony conviction for assault. P. Br. at 12; P. Supp. Br. at 3. Petitioner argues that CMS should be required to explain the factors considered when deciding to deny the application rather than grant it. Petitioner’s approach is that CMS should have explained how it considered the evidence that: Petitioner is trustworthy; he had a ready employer serving a needful population; and even members of Congress supported his re-enrollment. RFH at 6-7; P. Br. at 4, 15-19; P. Supp. Br. at 3-4. Petitioner argues that CMS failed to assess the severity of Petitioner’s offenses, other “countervailing evidence,” and whether there was any detriment due to his offense in deciding to deny Petitioner’s enrollment. RFH at 8-9. Petitioner asserts that there is no evidence that Petitioner’s “enrollment would constitute a detriment to the Medicare program or its beneficiaries.” P. Br. at 19. Petitioner is correct that the reopened and revised reconsidered determination characterizes the list of felony offenses in 42 C.F.R. § 424.530(a)(3)(i)(A) as offenses which CMS has determined are per se detrimental including the felony offense of assault. CMS Ex. 1 at 4. Per se means “[o]f, in, or by itself; standing alone, without reference to additional facts.” *Black’s Law Dictionary* 1178 (8th ed. 2004). The hearing officer on reconsideration used the term “per se” to indicate that assault was specifically listed in the regulation. Whether or not the use of the term “per se” is correct is not the issue.6
 The hearing officer went on to analyze the facts of Petitioner’s conviction, finding that his conviction was detrimental to Medicare and its beneficiaries. The hearing officer did not state that denial of Petitioner’s enrollment application was mandated by the regulation because Petitioner was convicted of a listed offense. Rather, the hearing officer analyzed the offense and found that the offense involved a felony crime against a person, specifically assault, which is a basis for denial listed in 42 C.F.R. § 424.530(a)(3)(i)(A). There is no requirement in the regulations for the hearing officer to consider the additional facts urged by Petitioner or to articulate in the reconsidered determination how such facts were weighed. My authority is limited to deciding whether CMS had a basis for the denial of enrollment, not whether CMS correctly exercised the discretion to deny. *Bussell, M.D.*, DAB No. 2196.
**Page 12**
Petitioner argues that his offense is not an assault and, therefore, not one of the enumerated detrimental offenses listed in 42 C.F.R. § 424.530(a)(3)(i)(A). P. Br. at 2, 8; RFH at 7. The list of offenses include “[f]elony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.” 42 C.F.R. § 424.535(a)(3)(i)(A). Petitioner’s argument that his offense was not an assault flies in the face of the fact that the Missouri statute Petitioner was convicted of violating clearly describes Petitioner’s offense as an assault. Mo. Rev. Stat. § 565.060. There is simply no need to look further than the characterization in the Missouri statute Petitioner pleaded guilty to violating. The regulation provides that conviction of a federal or state felony that CMS determines is detrimental to the best interests of Medicare or its beneficiaries may be a basis for denial of enrollment. Therefore, the regulation contemplates that the characterization of the offense under the law of the jurisdiction where the conviction occurred can be relied upon to properly characterize the offense as a felony, as an assault, as a murder, as a rape, or as another similar felony crime against persons.
Petitioner argues that the lack of a definition of the term “assault” in 42 C.F.R. § 424.530(a)(3) violates Petitioner’s right to due process because it makes the regulation ambiguous and vague, resulting in discriminatory enforcement in this case. P. Br. at 11-12. This argument is without merit. The regulation requires that CMS look to the underlying conviction to determine if the offense is detrimental, and the regulation lists examples of the types of offenses that may be found detrimental. The characterization of the offense in the jurisdiction where the conviction occurred and the facts that underlie the conviction are considered to determine whether the offense is detrimental, not the definition of the offense in the regulation. In this case, Missouri specifically characterizes Petitioner’s felony offense against a person as an assault and that characterization is given great weight in this decision. To the extent that Petitioner seeks a conclusion that the regulation is invalid, I have no authority to address the constitutional challenge. I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or *ultra vires*. *1866ICPayday.com, L.L.C.*, DAB No. 2289 at 14 (2009). As the Board stated in *Sentinel Med. Labs., Inc.*, DAB No. 1762 at 9 (2001), *aff’d*, *Teitelbaum v. Health Care Fin. Admin.*, 32 F. App’x 865 (9th Cir. 2002):
It is well established that administrative forums, such as this Board and the Department’s ALJs, do not have the authority to ignore unambiguous statutes or regulations on the basis that they are unconstitutional. A legislative rule is binding on the agency that issues it. 1 Kenneth Culp Davis and Richard J. Pierce, Jr., *Administrative Law Treatise*, § 6.5 (3rd ed. 1994), citing *U.S. v. Nixon*, 418 U.S. 683 (1974) (where the court noted that the executive branch was bound by the terms of a regulation it had issued, even though it was within its power
**Page 13**
to change that regulation). Federal courts have refused “to recognize in administrative officers any inherent power to nullify legislative [or executive] enactments because of personal belief that they contravene the [C]onstitution.”*Gibas v. Saginaw Mining Co.*, 748 F.2d 1112, at 1117 (6th Cir. 1984) (citation omitted). Thus, courts have noted that challenges to the constitutionality of an agency regulation lie outside the cognizance of that agency, and that generally, an ALJ is bound by the regulations promulgated by his administrative agency. *Howard v. FAA*, 17 F.3d 1213, 1218 (9th Cir. 1994); *Stieberger v. Heckler*, 615 F. Supp. 1315, 1386 (S.D.N.Y. 1985), citing *D’Amico v. Schweiker*, 698 F.2d 903 (7th Cir. 1983).
Petitioner argues that he received a suspended imposition of sentence which is not a conviction under Missouri law. RFH at 3; P. Br. at 2. This argument is also without merit because it is the federal regulation that is applied to determine whether a conviction occurred, not the state law’s characterization. The applicable definition of “convicted” is found in 42 C.F.R. § 1001.2, which is specifically incorporated in 42 C.F.R. § 424.530(a)(3). The definition of convicted in 42 C.F.R. § 1001.2 includes the situation where: “(d) An individual or entity has entered into participation in a first offender, deferred adjudication or other program or arrangement where judgment of conviction has been withheld.” 42 C.F.R. § 1001.2. The “suspended imposition of sentence” described under Missouri law is a “program or arrangement where judgment of conviction has been withheld.” I conclude that Petitioner was convicted within the meaning of 42 C.F.R. § 424.530(a)(3).
Petitioner argues that he was subject to a three-year bar to re-enrollment in connection with the revocation of his Medicare enrollment in 2013 and that CMS has used denial of his enrollment pursuant to 42 C.F.R. § 424.530(a)(3) to effectively impose a ten-year bar to re-enrollment which is not authorized under the regulations. RFH at 9; P. Supp. Br. at 3-4. Petitioner argues it is unlawful and unconstitutional for CMS to penalize Petitioner twice. P. Br. at 19-21; P. Supp. Br. at 3-4. Petitioner cited no authority for the application of the prohibition against double jeopardy in this context. Denial of Petitioner’s enrollment in this case is not a criminal or civil penalty (and it is referred to as neither by the drafters of the regulation), but is more akin to an ineligibility or disqualifier for professional licensing; the statutory scheme under 42 C.F.R. pt. 424 is not punitive in nature; and 42 C.F.R. § 424.530(a)(3) has never been declared punitive. *See Joann Fletcher Cash*, DAB No. 1725 (2000). I also note that CMS is delegated authority to impose a re-enrollment bar of one to three years following revocation of Medicare enrollment pursuant to 42 C.F.R. § 424.535(c). Pursuant to 42 C.F.R. § 424.530(a)(3), CMS or the MAC may deny enrollment for one convicted of a felony offense within ten years of submitting an enrollment application, if CMS determines that the felony offense
**Page 14**
is detrimental to the best interests of the Medicare program and its beneficiaries. Petitioner cites no authority for the proposition that these delegations of authority are impermissible or constitute impermissible dual punishment.
Petitioner argues that CMS violated public policy by failing to consider the Medicare program goal of providing healthcare to Americans in need, particularly to those in under-served areas where Petitioner has a willing employer. RFH at 10; P. Br. at 21-22. Petitioner correctly identifies two goals of Medicare and the law implementing the program: to protect the Medicare program and to provide healthcare to many Americans. The procedures followed in this case and the CMS decision to deny Petitioner enrollment does not show that either policy goal was violated. Rather, CMS determined the balance of the scale tipped against Petitioner. Further, to the extent that Petitioner’s arguments may be construed as a request for equitable relief, I have no authority to grant equitable relief. *US Ultrasound*, DAB No. 2302 at 8 (2010).
Accordingly, I conclude that there is a basis to deny Petitioner’s enrollment in Medicare pursuant to 42 C.F.R. § 424.530(a)(3). I have no authority to review the exercise of discretion by CMS or its contractor to deny enrollment where there is a basis for such action. *Abdul Razzaque Ahmed, M.D.*, DAB No. 2261 at 19 (2009), *aff’d*, *Ahmed v. Sebelius*, 710 F. Supp. 2d 167 (D. Mass. 2010).
III. Conclusion
For the foregoing reasons, I conclude that there was a basis to deny Petitioner’s application to enroll in Medicare pursuant to 42 C.F.R. § 424.530(a)(3).


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated. back to note 1
                      2. A “supplier” furnishes services under Medicare and includes physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.” Act § 1861(d) (42 U.S.C. § 1395x(d)). A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) (42 U.S.C. § 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(e)) of the Act. Act § 1861(u) (42 U.S.C. § 1395x(u)). The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes. back to note 2
                      3. The current version of 42 C.F.R. § 424.530(a)(3) has been in effect since February 3, 2015. 79 Fed. Reg. 72,500, 72,531-32 (Dec. 5, 2014). back to note 3
                      4. Revisor of Statutes, State of Missouri, http://revisor.mo.gov/main/Home.aspx (last visited April 25, 2018). back to note 4
                      5. Each agency submitting a proposed or final rule for publication in the Federal Register must provide a preamble to inform the reader of the basis and purpose of the regulation or proposal. 1 C.F.R. § 18.12. In promulgating regulations, the Secretary must publish the proposed regulation in the Federal Register and allow no fewer than 60 days for public comment. Act § 1871. back to note 5
                      6. The Board has referred to the listed offenses as “presumptively detrimental” and that may be the better terminology.  Saeed A. Bajwa, M.D., DAB No. 2799 at 9 (2017). back to note 6 Back to top
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