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                              2022
                              Kevin V. Patel, MD, DAB CR6097 (2022)
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Kevin V. Patel, MD, DAB CR6097 (2022)








  
  
    

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





Kevin V. Patel, MD
(NPI: 1508285966),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-22-323Decision No. CR6097June 9, 2022

        
              
    

      DECISION

The Centers for Medicare & Medicaid Services (CMS) upheld a determination by Palmetto GBA (Palmetto), a Medicare administrative contractor, revoking the Medicare enrollment and billing privileges of Petitioner, Kevin V. Patel, MD, pursuant to 42 C.F.R. § 424.535(a)(3) and (4) because Petitioner had been convicted of a felony offense that is detrimental to the Medicare program and its beneficiaries within the previous 10 years and certified as true misleading or false information on an enrollment application.  CMS also upheld Petitioner’s placement on its Preclusion List.  I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges and placement on the Preclusion List.

I.  Background and Procedural History

Petitioner is an internist who is licensed in South Carolina.  CMS Ex. 8 at 13.  On August 6, 2018, the United States Attorney for the Western District of Louisiana filed a one-count information charging the following:

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[Petitioner] . . . is a physician licensed to practice medicine in the State of South Carolina.
	Prior to becoming licensed, [Petitioner] completed a residency program in internal medicine through the Louisiana State University Health Sciences Center—Shreveport (LSUHSC) . . . from 2014 to 2017.
	As a resident, [Petitioner] had access to the internal medicine clinic . . . .  Such access included access to the prescription pads of other physicians who worked at the clinic, as well as to the United States Drug Enforcement Administration (DEA) Registration Number assigned to LSUHSC.
	[Petitioner] used this access to fraudulently issue prescriptions for controlled substances, by using the prescription pad of another physician without that physician’s knowledge or authorization, as well as the DEA Registration number assigned to LSUHSC.
	Through this and other means, from on or about April 19, 2017 to on or about June 5, 2017, [Petitioner] fraudulently obtained approximately 150 tablets of dextroamphetamine-amphetamine, also known as Adderall, a Schedule II controlled substance; and approximately 150 tablets of Lisdexamfetamine, also known as Vyvanse, a Schedule II controlled substance.CMS Ex. 5 at 4-5.  The information also charged that “[o]n or about June 5, 2017 . . . [Petitioner] did knowingly and intentionally acquire and obtain possession of . . . Adderall, a Schedule II controlled substance, by misrepresentation, fraud, forgery, deception, and subterfuge, all in violation of Title 21, United States Code, Section 843(a)(3).” 1
  CMS Ex. 5 at 5.

On September 5, 2018, Petitioner waived indictment and entered a guilty plea to the one-count information.  CMS Exs. 3 at 1; 4 at 1.  A September 5, 2018 district court filing reported that an offense under 21 U.S.C. § 843(a)(3) entails the following three elements:  1.) That the defendant obtained or acquired a controlled substance; 2.) That the defendant utilized misrepresentation, fraud, forgery, deception or subterfuge to obtain the controlled substance; 3.) That the misrepresentation, fraud, deception or subterfuge was material.  *See*21 U.S.C. § 843(a)(3); CMS Ex. 6 at 10.

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Pursuant to the September 5, 2018 plea agreement, Petitioner agreed to the following factual stipulations:

On or about June 5, 2017, [Petitioner] was employed as a resident physician in the internal medicine department of Louisiana State University Health Sciences Center – Shreveport.  [Petitioner] obtained the prescription pad of another physician, and, without that physician’s knowledge or authorization, [Petitioner] issued a prescription in his roommate’s name, N.N.  The prescription was for dextroamphetamine-amphetamine, also known as Adderall, a Schedule II controlled substance that may only be issued by a licensed physician using a valid DEA license.  [Petitioner] then obtained N.N.’s driver’s license without his knowledge or approval, and presented it at a pharmacy in the Shreveport, Louisiana area to fill the prescription, thereby knowingly and intentionally acquiring and obtaining possession of the controlled substance.

[Petitioner] issued a total of five prescriptions in N.N.’s name, including the one referenced above, for dextroamphetamine-amphetamine, also known as Adderall, a Schedule II controlled substance, and Lisdexamfetamine, also known as Vyvanse, a Schedule II controlled substance.  [Petitioner] successfully filled four of those prescriptions, using N.N.’s driver’s license as described above, all in the Shreveport, Louisiana area.  Through this and other means, from on or about April 19, 2017 to on or about June 14, 2017, [Petitioner] fraudulently obtained approximately 150 tablets of dextroamphetamine-amphetamine, also known as Adderall, a Schedule II controlled substance; and approximately 150 tablets of Lisdexamfetamine, also known as Vyvanse, a Schedule II controlled substance.

CMS Ex. 6 at 8-9.  On January 4, 2019, a federal district judge imposed judgment, at which time he sentenced Petitioner to a two-year term of probation with mandated participation in a drug and/or alcohol treatment program, along with 100 hours of community service work each year.  CMS Ex. 4 at 2-3.  On February 11, 2020, the District Court granted a motion for early termination of probation.  Petitioner (P.) Ex. 3.

On February 2, 2021, the State Board of Medical Examiners for South Carolina released Petitioner “from the terms, conditions, and/or restrictions set forth in an Order entered by the Board on January 14, 2020.”  CMS Ex. 7 at 1.

In May 2021, Petitioner submitted a Form CMS-855I application to enroll in the Medicare program.  CMS Ex. 8.  Section 3 of the application, Final Adverse Legal Actions, “captures information regarding final adverse legal actions, such as convictions, exclusions, license revocations, and license suspensions.”  CMS Ex. 8 at 25.  Section 3 listed numerous adverse legal actions, to include “[a]ny federal or state felony

Page 4

conviction(s)” within the preceding 10 years.  CMS Ex. 8 at 25.  Immediately below the listed adverse legal actions, the form asked, “Have you, under any current or former name, ever had a final adverse legal action **listed above** imposed against you?”  CMS Ex. 8 at 25 (emphasis in original).  Petitioner responded by checking the field corresponding to “NO.”  CMS Ex. 8 at 25.  Section 15 of the application, Certification Statement And Signature, included the following certification:  “Under the penalty of perjury, I, the undersigned, certify to the following . . . I have read the contents of this application, and the information contained herein is true, correct, and complete.”  CMS Ex. 8 at 77.  Petitioner signed and dated the application on the same page as the aforementioned certification statement.  CMS Ex. 8 at 77.

On September 16, 2021, Palmetto revoked Petitioner’s Medicare enrollment, effective February 18, 2021, based on 42 C.F.R. § 424.535(a)(3) and (4).2
  CMS Ex. 10.  Palmetto explained that it became aware of a September 5, 2018 felony conviction that warranted revocation pursuant to 42 C.F.R. § 424.535(a)(3).  CMS Ex. 10 at 1.  Palmetto further explained that because Petitioner provided a negative response to an enrollment application question asking whether he had any adverse legal history, revocation was also warranted pursuant to 42 C.F.R. § 424.535(a)(4).  CMS Ex. 10 at 1.  Palmetto also informed Petitioner that he would be placed on CMS’s Preclusion List pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  CMS Ex. 10 at 1-2.  Palmetto informed Petitioner that CMS had imposed a re-enrollment bar and that he would be eligible to re-enroll in the Medicare program on September 6, 2028.  CMS Ex. 10 at 3.

According to CMS, Petitioner, through his current counsel, submitted a request for reconsideration dated October 18, 2021.3
  CMS Ex. 1 at 2.

CMS, through its Provider Enrollment and Oversight Group, issued a reconsidered determination on December 20, 2021, in which it upheld the revocation of Petitioner’s

Page 5

Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(3) and (4) and inclusion on CMS’s Preclusion List.  CMS Ex. 1.  In upholding Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(3), CMS explained, in pertinent part:

CMS finds [Petitioner’s] felony offense of Unlawful Acts-Controlled Substance-Possess-Obtaining A Controlled Substance by Fraud to be akin to the enumerated crimes in 42 C.F.R. § 424.535(a)(3)(i)(D), which CMS has found to be *per se*detrimental to the Medicare program and its beneficiaries.  CMS finds [Petitioner’s] felony offense for Unlawful Acts-Controlled Substance-Possess-Obtaining A Controlled Substance by Fraud to be similar to felony convictions relating to controlled substance as identified in the Act § 1128(a)(4), which requires the exclusion of providers convicted of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance from participation in federal healthcare programs.  Therefore, CMS determines that [Petitioner’s] felony conviction falls within CMS’ authority to revoke a supplier’s Medicare billing privileges as it is akin to a felony conviction related to controlled substance deemed as *per se*detrimental to the best interests of the Medicare program and its beneficiaries, as described above.

CMS Ex. 1 at 6.  CMS further explained:

CMS also finds that [Petitioner’s] felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries based on the particular circumstances surrounding it.  [Petitioner’s] conviction of possessing a controlled substance by fraud involves disregard for abiding by laws and a lack of good judgment.  The circumstances surrounding [Petitioner’s] conviction involved the following facts:  during [Petitioner’s] internal medicine residency at the Clinic at Shreveport, [Petitioner] used his position as a resident to obtain access to other physicians’ prescription pads as well as access to the Clinic’s DEA registration number, which is required to prescribe controlled substances (see Exhibit 5).  [Petitioner] then issued a prescription for a Schedule II controlled substance, using his then roommate’s name.  [Petitioner] was able to have the prescription filled at an area pharmacy, using his roommate’s driver’s license without his knowledge or authority.  [Petitioner] fraudulently had a total of five prescriptions filled using his roommate’s identity.  [Petitioner] obtained 150 tablets of various controlled substances from April 19, 2017 until about June 14, 2017.  According to 21 U.S.C. 843(a)(3) it is unlawful for anyone to knowingly or intentionally acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge. Subsequently, on September 5, 2018, [Petitioner] pleaded guilty to one

Page 6

count of Unlawful Acts-Controlled Substance-Possess-Obtaining A Controlled Substance by Fraud in violation of 21 U.S. Code § 843(a)(3) in the Court.  CMS finds [Petitioner’s] felony conviction to be detrimental to the best interests of the Medicare program and its beneficiaries, as [Petitioner’s] actions demonstrate an abuse of his position and authority, a disregard for the property of others, as well as does it demonstrate failure to exercise good judgment and trustworthiness.  [Petitioner’s] involvement with illegal drugs present a danger to the health, safety, and welfare of Medicare beneficiaries, regardless of [Petitioner’s] argument that these events took place during a time when he was not enrolled in the Medicare program.  He could easily replicate this behavior during his enrollment.

CMS Ex. 1 at 6-7.  With respect to Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(4), CMS explained that “[b]y signing and submitting the May 13, 2021 Medicare application, [Petitioner] certified as ‘true’ that he did not have any final adverse legal actions imposed against him when in fact he had one, which was required to be reported.”  CMS Ex. 1 at 7.  CMS further discussed that regardless of whether a third-party credentialing service completed his application, Petitioner signed the application and certified that the contents of the application were true, correct, and complete.  CMS Ex. 1 at 7.  CMS also determined, utilizing the framework of both revocation authorities, along with 42 C.F.R. §§ 422.2 and 423.100, that Petitioner’s offenses were detrimental to the Medicare program such that inclusion on its Preclusion List is warranted.  CMS Ex. 1 at 8-10.

Petitioner, through counsel, filed a request for hearing on February 15, 2022.  CMS filed a combined brief and motion for summary judgment (CMS Br.), along with 10 proposed exhibits (CMS Exs. 1-10).  Petitioner submitted a pre-hearing brief in opposition to the motion for summary judgment (P. Br.) and six proposed exhibits (P. Exs. 1-6).  In the absence of any objections, I admit CMS Exs. 1-10 and P. Exs. 1-6 into the evidentiary record.4

Page 7

Neither party has submitted the sworn and written direct testimony of any witnesses.  A hearing is therefore unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order §§ 12-14.  I issue this decision on the merits.5

II.  Issues

Whether CMS had a legitimate basis to uphold the revocation of Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(3).

Whether CMS had a legitimate basis to uphold the revocation of Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(4).

Whether CMS had a legitimate basis to uphold Petitioner’s placement on its Preclusion List.

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and Analysis6

As a physician, Petitioner is a supplier of health care services for purposes of the Medicare program.  42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (supplier), 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.  CMS may revoke a supplier’s enrollment for any reason stated in, *inter alia,* 42 C.F.R. § 424.535(a).

A supplier’s Medicare enrollment can be revoked based on the existence of a felony conviction, as is set forth in 42 C.F.R. § 424.535(a)(3):

(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 [C.F.R. §] 1001.2) of a Federal or State felony offense that

Page 8

CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.

(i) Offenses include, but are not limited in scope or severity to –

* * * *

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

42 C.F.R. § 424.535(a)(3)(i)(D); 42 U.S.C. § 1395u(h)(8) (authorizing the Secretary to terminate an agreement with a physician who has been convicted of a felony offense that the Secretary has determined is detrimental to the best interests of the Medicare program or its beneficiaries).  As relevant here, section 1128(a)(4) of the Act, 42 U.S.C. § 1320a-7(a)(4), mandates exclusion when an individual has a felony conviction, as defined by 42 U.S.C. § 1320a-7(i), “relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”7
  CMS may also revoke a supplier’s Medicare enrollment when the supplier “certifie[s] 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).  CMS is authorized to 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;

Page 9

(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.

***1.  On August 6, 2018, the United States Attorney for the Western District of Louisiana filed a one-count information charging that Petitioner obtained controlled substances by fraud.***

***2.  In a plea agreement filed on September 5, 2018, Petitioner admitted that, on five occasions while he was employed as an internal medicine resident between April 19 and June 14, 2017, he used the prescription pad of another physician to issue prescriptions for dextroamphetamine-amphetamine (Adderall) and Lisdexamfetamine (Vyvanse), which are both Schedule II controlled substances that may only be issued by a licensed physician with a valid DEA registration number.  Further, and without authorization, Petitioner issued the prescriptions to his roommate, and used his roommate’s driver’s license to fill the prescriptions for himself at a local pharmacy.***

***3.  On September 5, 2018, Petitioner entered a guilty plea to the offense of obtaining a controlled substance by fraud, in violation of 21 U.S.C. §*** ***843(a)(3).***

***4.  Based on the district court’s acceptance of Petitioner’s guilty plea and imposition of judgment, Petitioner has a conviction for purposes of Medicare enrollment as contemplated by 42 C.F.R. §*** ***1001.2.***

***5.  Pursuant to 21 U.S.C. §*** ***843(d)(1), Petitioner’s criminal offense is a felony offense that is punishable by up to four years of incarceration.***

***6.  Petitioner’s felony offense related to the unlawful prescribing or dispensing of controlled substances within the 10 years preceding his Medicare enrollment.***

***7.  Pursuant to 1128(a)(4) of the Act, a felony offense related to the unlawful prescribing or dispensing of a controlled substance mandates exclusion.***

***8.  CMS has determined that felony offenses that would result in mandatory exclusion under section 1128(a) of the Act are per se detrimental to the Medicare program and its beneficiaries.***

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***9.  CMS had a legitimate basis to uphold the revocation of Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.535(a)(3)(ii)(D) because his felony offense within the preceding 10 years is per se detrimental to the best interests of the Medicare program and its beneficiaries.***

***10.  In an enrollment application received in May 2021, Petitioner certified that he had not been the subject of a final adverse legal action, to include a felony conviction.***

***11.  Because Petitioner’s May 2021 enrollment application reported false and misleading information that he had not been convicted of a felony offense within the preceding 10 years, CMS had a legitimate basis, pursuant to 42 C.F.R. §*** ***424.535(a)(4), to uphold the revocation of his Medicare enrollment.***

***12.  Because Petitioner had been convicted of felony offense that is detrimental to the Medicare program within the previous 10 years, CMS had a legitimate basis, after considering the factors at 42 C.F.R. §§ 422.2 and 423.100, to uphold his placement on its Preclusion List.***

**CMS had a legitimate basis to uphold the revocation of Petitioner’s Medicare enrollment pursuant to 42 C.F.R. §** **424.535(a)(3).**

Petitioner acknowledged the following factual bases underlying his guilty plea to the offense of obtaining a controlled substance by fraud:

Petitioner was employed as a resident physician;
	Petitioner obtained the prescription pad of another physician;
	Petitioner used the prescription pad to write five prescriptions for a total of approximately 300 tablets to another person, his roommate;
	The prescriptions Petitioner wrote in the name of his roommate were for Schedule II controlled substances, dextroamphetamine-amphetamine (Adderall) and Lisdexamfetamine (Vyvanse), that required that the prescriber have a valid DEA registration number; and
	Petitioner used his roommate’s driver’s license, without his knowledge or approval, to pick up the prescriptions at pharmacies.CMS Ex. 6 at 8-9.  Petitioner used his unauthorized access to a prescription pad and DEA registration number to write prescriptions as if he were the prescribing physician, and he essentially stole his roommate’s identity so that he could issue and fill those prescriptions for himself.  The fact that Petitioner fraudulently prescribed and picked up these

Page 11

prescriptions for his own use does not lessen the fraudulent nature of his actions.  *See*P. Br. at 6 (“Here, as an addict, Petitioner forged paper prescriptions only for himself, and not others.”).  Regardless of the recipient of the controlled substances, Petitioner’s felony offense undoubtedly *relates*to the “unlawful manufacture, distribution, prescription or dispensing of a controlled substance.”  42 U.S.C. § 1320a-7(a)(4).  The evidence indicates that Petitioner abused his position and access to a prescription pad with a DEA registration number to unlawfully prescribe controlled substances that were dispensed for his own use.

In an analogous revocation case invoking the section 1128(a)(4) exclusion authority, the DAB upheld the revocation of a physician’s Medicare enrollment where the physician’s prescriptions “were ostensibly written for members of [the physician’s] family,” but had been issued “so that he could obtain the controlled substances for his own use.”  *Blair Allen Nelson, M.D.*, DAB No. 3024 at 3 (2020).  The DAB determined that the ALJ “correctly concluded [that the physician’s] conviction was not merely ‘similar’ or ‘akin’ to an offense listed in section 1128(a)(4), it is a conviction ‘falling explicitly within the reach of section 1128(a)(4) and described at 42 C.F.R. § 424.535(a)(3)(ii)(D).’”  *Blair Allen Nelson, M.D.*, DAB No. 3024 at 7.  The DAB further explained the physician’s felony conviction for a scheme that allowed him to procure controlled substances for his own use “would result in a mandatory exclusion under section 1128(a)(4), [and] CMS determined it to be *per se*detrimental to the best interests of the Medicare program and its beneficiaries.  CMS, therefore, had a lawful basis to revoke [his] Medicare billing privileges.”  *Blair Allen Nelson, M.D.*, DAB No. 3024 at 8.  In that substantially similar case, the physician unlawfully prescribed controlled substances to others for his own use, whereas in the instant case, Petitioner used another physician’s prescription pad and DEA number to prescribe medications to someone else, and then had the medications dispensed to himself.

Petitioner also argues, on hyper-technical grounds, that he did not actually prescribe the controlled substances because the prescriptions were not “valid prescriptions.”  P. Br. at 6-7, 12-13 (alleging that the fraudulent prescriptions did not meet the definition of “prescription” referenced in Title 21 of the United States Code).  Regardless of whether these prescriptions were valid, the pharmacy accepted the prescriptions as a valid basis to *dispense*Schedule II controlled substances.  CMS Ex. 6 at 9.  Petitioner’s criminal offense undoubtedly *relates*to the unlawful prescribing and dispensing of controlled substances, and as such, is *per se*detrimental to the Medicare program and its beneficiaries.  *See*42 C.F.R. § 424.535(a)(3)(ii)(D); 42 U.S.C. § 1320a-7(a)(4).

Petitioner, through his counsel, argues that “as an attorney with almost twenty years’ experience as a Federal Criminal Justice Act Panel defender, [he] would opine with virtual certainty that had [Petitioner] been prosecuted in the District of South Carolina, he would have been diverted and never faced with this administrative conundrum.”  P. Br. at 3.  Petitioner further argues, “Indeed, what must be understood in the context of

Page 12

Petitioner’s prior guilty plea is that he would have been a candidate for diversion to that District’s drug court but for the unreasonableness of an overly zealous Assistant U.S. Attorney, who did not place appropriate concern on the collateral consequences of his prosecution.”  P. Br. at 10.  While I need not address counsel’s speculation as to how Petitioner’s criminal offense would be prosecuted in another jurisdiction, I note that entry into a diversion program likely would have yielded the same outcome.  A plain reading of 42 C.F.R. § 1001.2 (and 42 U.S.C. § 1320a-7(i)(4) upon which it is based) unambiguously states that an individual’s entry into a diversion program where judgment of conviction has been withheld, in and of itself, amounts to a criminal conviction for purposes of exclusion.  *See**Kim J. Rayborn*, DAB No. 2248 at 6-7 (2009) (finding that the petitioner had a criminal conviction for purposes used by the Department, even though a court, following completion of a diversion program, had dismissed the petitioner’s case and explicitly stated there was no criminal conviction); *Travers v. Shalala*, 20 F.3d 993, 998 (9th Cir. 1994) (upholding determination of a conviction where a court had accepted a no contest plea and approved “first offender disposition,” and then allowed withdrawal of the plea and dismissed the case upon satisfaction of a plea agreement).

Petitioner also argues that he “has successfully beaten his addiction, having no less than a stellar professional career since that time and still continuously employed by [a rural clinic]” that has employed him since November 2021.  P. Br. at 5.  Petitioner’s efforts to overcome a substance abuse problem are commendable.  The federal court system furthered worthy rehabilitative goals by sentencing Petitioner to a term of probation that included drug treatment.  *See*CMS Ex. 4 at 2-3.  Similarly, the medical licensing board released all terms, conditions, and restrictions, and granted him an unrestricted license in February 2021.  CMS Ex. 7 at 1.  Through a combination of lenience by the criminal justice system and his own effort to overcome addiction and move forward with his professional career, Petitioner was able to complete his residency and eventually obtain an unrestricted medical license.  To the extent that Petitioner argues that his subsequent rehabilitative efforts weigh against his felony conviction, the DAB has held that “[t]hough CMS has discretion to consider mitigating circumstances in deciding whether, or how, to exercise its revocation authority, neither an ALJ nor the Board may substitute its discretion for that of CMS.”  *Lilia Gorovits, M.D., P.C.*, DAB No. 2985 at 17 (2020) (citing *Douglas Bradley, M.D.*, DAB No. 2663 at 13 (2015)).

**CMS had a legitimate basis to uphold the revocation of Petitioner’s enrollment pursuant to 42 C.F.R. §** **424.535(a)(4).**

Although it is unnecessary to uphold more than one basis for revocation, I nonetheless determine that CMS was separately authorized to revoke Petitioner’s enrollment pursuant to 42 C.F.R. § 424.535(a)(4).  Petitioner has not offered any evidence to refute that he certified misleading or false information on his Medicare enrollment application

Page 13

reporting that he did not have any final adverse legal actions, to include his felony conviction, within the preceding 10 years.  CMS Ex. 8 at 25, 77.

Petitioner claims that a third-party preparer failed to report any final adverse legal actions on the enrollment application, even though he had reported that information to the preparer.  P. Br. at 4.  Petitioner further explained that the preparer provided him with only the signature page of the application, and that he “perfunctorily” signed that page without reviewing the remainder of the application.  P. Br. at 4.

I recognize that physicians such as Petitioner frequently rely on office staff, credentialing companies, and other professionals to handle their Medicare enrollment matters, which understandably allows physicians to spend their valuable time treating patients.  However, a physician who certifies and signs an enrollment application takes ownership of the content of the enrollment application and certifies having “read the contents of this application, and the information contained herein is true, correct, and complete.”  CMS Ex. 8 at 77.  When Petitioner certified and signed the enrollment application, he reported that he had “read” the application and agreed that the information provided was “true, accurate, and complete.”  CMS Ex. 8 at 77.  By not disclosing his felony conviction, and certifying that he had provided true, accurate, and complete information, Petitioner provided false and misleading information on his enrollment application.  CMS was therefore authorized to revoke his enrollment pursuant to 42 C.F.R. § 424.535(a)(4).

Finally, I note that my role in this matter is limited, and I am not empowered to reverse CMS’s revocation for equitable reasons such as Petitioner’s laudable rehabilitation or his reliance on office staff to prepare his enrollment application for his signature.  Thus, the scope of my review is whether CMS had a legitimate basis for its action.  *See* *Linda Silva, P.A.*, DAB No. 2966 at 12 (2019) (“Neither CMS’s enrollment regulations (in 42 C.F.R. Part 424) nor the administrative appeal regulations (in 42 C.F.R. Part 498) authorize an administrative law judge or the [DAB] to mitigate the consequences of a valid and binding revocation determination.”).  Because CMS had a legitimate basis to uphold the revocation of Petitioner’s Medicare enrollment, I uphold the revocation determinations.

**CMS had a legitimate basis to uphold Petitioner’s placement on its Preclusion List**

Based on its consideration of the regulatory factors set forth in 42 C.F.R. §§ 422.2 and 423.100, CMS had a legitimate basis to uphold Petitioner’s placement on the Preclusion List.  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.

Other than disputing that his offense warranted revocation because it “was not feloniously ‘prescriptive,’” Petitioner does dispute CMS’s consideration of

Page 14

aforementioned factors in its determination upholding Petitioner’s placement on the Preclusion List.  Therefore, Petitioner has offered no basis to disturb CMS’s determination.

To the extent Petitioner argues that “CMS can and should determine that a shorter length of time is more appropriate,” the duration of the placement is set by regulation.  *See*42 C.F.R. § 422.222(a)(5)(iii) (addressing that an individual remains on the Preclusion List for a 10-year period beginning on the date of the felony conviction, unless *CMS*determines that a shorter length of time is warranted (emphasis added)).  The duration of the period of inclusion on the Preclusion List is a matter within CMS’s discretion, and is not a matter within an ALJ’s discretion.  Rather, the ALJ reviews whether CMS had a legitimate basis to include a supplier or provider on the preclusion list.  42 C.F.R. § 498.3.  The controlling regulation presumes that the period of inclusion will be 10 years from the date of the felony conviction unless CMS determines otherwise.  *See*42 C.F.R. § 422.222(a)(5)(iii).  After it determined that Petitioner “misused and abused his authority . . . to wrongfully prescribe controlled substances for himself,” and his “conduct negatively affects the integrity of the Medicare program as his actions reflect poorly on the healthcare community as a whole, and jeopardize public confidence in Medicare providers and suppliers,” CMS determined that Petitioner would be included on the Preclusion List until September 6, 2028, which is 10 years after the date of his felony conviction.  *See*42 C.F.R. § 422.222(a)(5)(iii).  CMS acted within its authority to uphold Petitioner’s inclusion on the Preclusion List until September 6, 2028.8

V.  Conclusion

I affirm the revocation of Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(3) and (4) and inclusion on the Preclusion List.


          /s/
        Leslie C. Rogall

                      Administrative Law Judge
      1.  The information charged a felony offense.  21 U.S.C. § 843(d)(1) (“[A]ny person who violates [21 U.S.C. § 843(a)(3)] shall be sentenced to a term of imprisonment of not more than 4 years . . . .”); CMS Ex. 6 at 2 (plea agreement reporting exposure to a maximum term of imprisonment of four years); see 18 U.S.C. § 3559 (classifying offenses punishable by more than one year of incarceration as felony offenses). back to note 1
                      2.  A copy of the determination approving Petitioner’s Medicare enrollment, to include the effective date of enrollment, is not of record.  Palmetto explained that the criminal conviction preceded Petitioner’s enrollment in the Medicare program and that the revocation was effective “back to the date of first enrollment.”  CMS Ex. 10 at 1.  The evidence indicates that the February 18, 2021 effective date of revocation is based on a date of enrollment of February 18, 2021, which is 90 days prior to the date of receipt of Petitioner’s enrollment application.  See 42 C.F.R. §§ 424.520(d), 424.521(a)(ii) (authorizing an effective date of enrollment 90 days prior to the receipt of an enrollment application under certain conditions); CMS Ex. 8 (stamp with Julian date notation of May 19, 2021). back to note 2
                      3.  Neither party submitted a copy of Petitioner’s request for reconsideration as a proposed exhibit. back to note 3
                      4.  Because CMS did not submit a copy of the request for reconsideration and accompanying evidence as a proposed exhibit, it has effectively waived my review of whether evidence submitted at the hearing level should be excluded from the evidentiary record.  See 42 C.F.R. § 498.56(e). back to note 4
                      5.  Because an in-person hearing is unnecessary, I need not rule on CMS’s motion for summary judgment. back to note 5
                      6.  My findings of fact and conclusions of law are in bold and italics. back to note 6
                      7.  While there are slight differences in the wording of section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical.  I refer to them interchangeably. back to note 7
                      8.  Although CMS upheld Petitioner’s inclusion on the Preclusion List based on his revocation pursuant to 42 C.F.R. § 424.535(a)(4), its analysis related to that basis for revocation did not address the length of inclusion on the Preclusion List.  CMS Ex. 1 at 10.  As a result, I limit my discussion to Petitioner’s inclusion on the Preclusion List based on his felony conviction and revocation pursuant to 42 C.F.R. § 424.535(a)(3). back to note 8 Back to top
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