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                              William Todd Ainsley, DPM, CR6301 (2023)
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William Todd Ainsley, DPM, CR6301 (2023)








  
  
    

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





William Todd Ainsley, DPM
(NPI: 1891732442)
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-23-273Decision No. CR6301June 15, 2023

        
              
    

      DECISION

The Centers for Medicare & Medicaid Services (CMS) upheld the denial of the July 13, 2022 enrollment application of Petitioner, William Todd Ainsley, DPM.  Petitioner’s application had been denied pursuant to 42 C.F.R. § 424.530(a)(3) based on his March 2016 felony convictions that included insurance fraud.  Petitioner’s application had also been denied pursuant to 42 C.F.R. § 424.530(a)(4) based on his failure to report the March 2016 convictions on his enrollment application.  CMS had a legitimate basis to uphold the denial of Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(3) and (4).

I. Background and Procedural History

Petitioner is a podiatrist who practices in Pennsylvania.  CMS Ex. 3 at 1.

On January 28, 2016, pursuant to a “plea bargain,” Petitioner executed a written general plea to the following offenses charged by the Commonwealth of Pennsylvania:

Insurance Fraud (Consolidated Count 1), 18 Pa.C.S. § 4117(a)(2);

Page 2

Acquiring or obtaining a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge (Consolidated Count 2), 35 P.S. § 780-113(a)(12);

Improper administration of a controlled substance by a practitioner (Consolidated Count 3), 35 P.S. § 780-113(a)(14); and

Conspiracy to commit a crime (Count 16), 18 Pa.C.S. § 903(a)(1).

CMS Ex. 1 at 1.  The first three offenses listed above are felony offenses.1  18 Pa.C.S. § 4117(d); 35 P.S. § 780-113(f)(1), (n), (o).  A sentencing order issued on March 15, 2016, reflects that a judge accepted Petitioner’s plea to Counts 1, 3, and 16.2  CMS Ex. 2 at 1.

On July 13, 2022, Petitioner electronically submitted an application to enroll as a supplier in the Medicare program.  CMS Ex. 3.  Petitioner reported a misdemeanor conviction dating back to 2006, an Inspector General exclusion, and a license suspension by the Pennsylvania Medical Board, but did not report any felony convictions in the preceding 10 years.  CMS Ex. 3 at 3; *see*CMS Ex. 4 at 11 (Form CMS-855I application instructing the applicant to report “[a]ny federal or state felony conviction(s)” within the preceding 10 years).

On August 9, 2022, Novitas Solutions (Novitas), a Medicare administrative contractor, denied Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(3) and (4).  CMS Ex. 5 at 1.  Novitas reported that CMS “has been made aware of [Petitioner’s] . . . felony conviction, as defined in 42 C.F.R. § 1001.2,” and that “[a]fter reviewing the specific facts and circumstances surrounding [his] felony conviction, CMS has determined that [his] felony conviction is detrimental to the best interests of the Medicare

Page 3

program and its beneficiaries.”  CMS Ex. 5 at 1.  Novitas also determined that Petitioner “failed to disclose” any felony convictions on his enrollment application, and that “[a] felony conviction is listed [sic] an adverse legal action that requires reporting on the 855 enrollment application.”  CMS Ex. 5 at 1-2.

Petitioner, through his current counsel (who also represented him in his criminal proceedings), submitted a request for reconsideration dated October 10, 2022.  CMS Ex. 6 at 1; *see*CMS Ex. 1 at 1.  Petitioner argued that he has been sober for approximately seven years and has continued to receive addiction treatment and attend support groups.  CMS Ex. 6 at 1-2.  Petitioner also cited character reference letters and reported that his mandatory Inspector General exclusion period had concluded and that he was eligible to participate in federal health care programs.  CMS Ex. 6 at 2.  Petitioner explained that although he did not report his felony convictions on his July 2022 enrollment application, he had reported other adverse actions.  CMS Ex. 6 at 1.

In a reconsidered determination issued on December 8, 2022, CMS’s Provider Enrollment & Oversight Group upheld the initial determination.  CMS Ex. 7.  CMS explained that it “finds, and there is no dispute, that [Petitioner] was convicted of a felony offense within the preceding 10 years.”  CMS Ex. 7 at 3.  CMS determined that Petitioner’s crime of insurance fraud is *per se*detrimental to the best interests of the Medicare program and its beneficiaries stating, “[u]nder § 424.530(a)(3)(i)(B), these *per se*detrimental offenses include financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud, and other similar crimes for which the individual was convicted.” 3  CMS Ex. 7 at 4.  CMS also explained, through an alternative case-specific analysis, that Petitioner “presented or caused to be presented insurance claims that contained false, incomplete, or misleading information concerning any fact or thing material to the insurance claim,” and that his actions “call into question his trustworthiness, integrity, judgement [sic], and ability and willingness to follow federal laws, rules, and program instructions.”  CMS Ex. 7 at 4.

CMS considered Petitioner’s claims that “he has taken multiple rehabilitative steps since his March 15, 2016 conviction.”  CMS Ex. 7 at 5.  Although CMS commended “the work [Petitioner] is doing to maintain sobriety and provide assistance to his local community,” CMS determined that he was “convicted of multiple felonies related to insurance fraud and controlled substances,” and that he “knowingly and willfully circumvented the laws that were put in place to protect patients” and “compromised the Medicare program for personal gain.”  CMS Ex. 7 at 5.  CMS further determined that Petitioner “has a

Page 4

propensity to break the laws, rules, and regulations for personal gain” and that his felony convictions are “detrimental to the bests interests of the Medicare program and its beneficiaries.”  CMS Ex. 7 at 5.

CMS separately upheld the denial of Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(4) based on his failure to disclose any felony convictions on his July 2022 enrollment application.  CMS Ex. 7 at 5-6.  CMS explained that Petitioner “has an obligation to disclose *on the Medicare enrollment application*any and all final adverse actions,” and that he “failed to report his March 15, 2016 felony convictions *on the Medicare enrollment application*as required.”  CMS Ex. 7 at 6 (emphasis in original).

Petitioner, through his counsel, requested an administrative law judge (ALJ) hearing on February 7, 2023.  Consistent with my Pre-Hearing Order, CMS filed a combined brief and motion for summary judgment, along with seven proposed exhibits (CMS Exs. 1-7).  Petitioner submitted a pre-hearing brief in opposition to CMS’s motion for summary judgment.4  In the absence of any objections, I admit CMS Exs. 1-7 into the evidentiary record.

Neither party has submitted any sworn written direct testimony, as contemplated by section 12 of the Pre-Hearing Order.5  Therefore, a hearing is unnecessary for the purpose of cross-examination of any witnesses.6  Pre-Hearing Order §§ 12-14.

II. Issue

Whether CMS had a legitimate basis to uphold the denial of Petitioner’s  Medicare enrollment application pursuant to 42 C.F.R. § 424.530(a)(3) based on a felony conviction that is detrimental to the best interests of the Medicare program and its beneficiaries within the preceding 10 years.

Page 5

Whether CMS had a legitimate basis to uphold the denial of Petitioner’s Medicare enrollment application pursuant to 42 C.F.R. § 424.530(a)(4) based on his failure to report felony convictions within the preceding 10 years.

III. Jurisdiction

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

IV. Findings of Fact, Conclusions of Law, and Analysis7

As a podiatrist, 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)(3).  In order to participate in the Medicare program as a supplier, a supplier must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may deny a supplier’s enrollment for any reason stated in 42 C.F.R. § 424.530(a).

A supplier’s enrollment application for Medicare billing privileges can be denied based on the existence of a felony conviction:

(3)  *Felonies.*  The provider, supplier, or any owner, managing employee, managing organization, officer, or director 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.

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

* * *

(B)  Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was

Page 6

convicted, including guilty pleas and adjudicated pretrial diversions.8

42 C.F.R. § 424.530(a)(3)(i)(B);*see*42 U.S.C. § 1395u(h)(8) (authorizing the Secretary to deny enrollment when a prospective supplier 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).  CMS may also deny a supplier’s Medicare enrollment application when the supplier “has submitted false or misleading information on the enrollment application to gain enrollment in the Medicare program.”  42 C.F.R. § 424.530(a)(4).

When CMS denies a supplier’s enrollment application, the supplier has a right to an ALJ hearing and Departmental Appeals Board (DAB) review.  *See*42 C.F.R. §§ 498.3(b)(17) and 498.5(*l*)(2)-(3); *see*42 U.S.C. § 1395cc(j)(8).  Although the Secretary’s regulations afford CMS discretion with respect to its determinations, the regulations do not afford an ALJ the same discretion.  The DAB has unambiguously stated, “[w]e may not review CMS’s exercise of discretion.”  *Pa. Physicians, P.C.*, DAB No. 2980 at 13 (2019);*see* *John A. Hartman, D.O.*, DAB No. 2911 at 17 (2018) (“CMS exercised its discretion here to deny re-enrollment upon a qualifying felony conviction; we may not look behind that exercise of discretion.”); *Stephen White*, *M.D.*, DAB No. 2912 at 14 (2018) (“Where CMS is legally authorized to deny an enrollment application, an ALJ cannot substitute his or her discretion for that of CMS (or CMS’s contractor) in determining whether, under the circumstances, denial is appropriate.”).  Thus, the scope of my review is whether CMS had a legitimate basis to deny Petitioner’s enrollment application, and not whether I would make the same determination in the first instance.

***On *March 15, 2016, a Pennsylvania judge accepted Petitioner’s guilty plea to the offense of insurance fraud*.
	*Petitioner does not dispute that he was convicted of several felony offenses, to include insurance fraud*.
	*Petitioner’s felony convictions were within the 10 years preceding his July 13, 2022 enrollment application*.***Page 7

****Pursuant to 42 C.F.R. § 424.530(a)(3)(i)(B), CMS has determined that a felony offense for a financial crime, to specifically include insurance fraud, is per se detrimental to the best interests of the Medicare program and its beneficiaries*.
	*Pursuant to 42 C.F.R. § 424.530(a)(3), CMS may deny the enrollment of a supplier who has been convicted within the preceding 10 years of a felony offense that is detrimental to the best interests of the Medicare program and its beneficiaries.*
	*CMS had a legitimate basis to uphold the denial of Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(3)(i)(B) because Petitioner’s felony conviction for insurance fraud within the preceding 10 years is per se detrimental to the best interests of the Medicare program and its beneficiaries.****Petitioner does not dispute that he was convicted of felony offenses within the preceding 10 years and that one of these offenses included insurance fraud.  CMS Exs. 1 at 1; 6 at 1-2; *see*P. Br.  CMS, through rulemaking, has determined that a felony financial crime, to specifically include “insurance fraud,” is *per se*detrimental to the Medicare program and its beneficiaries.  42 C.F.R. § 424.530(a)(3)(i)(B).  Novitas determined that Petitioner had a felony conviction that warranted the denial of his Medicare enrollment application because his “felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries.”  CMS Ex. 5 at 1.  CMS upheld this determination, explaining the following:

Under § 424.530(a)(3)(i)(B), these *per se*detrimental offenses include 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.  [Petitioner] was convicted of insurance fraud, which is explicitly enumerated as *per se*detrimental to the best interest of the Medicare program and its beneficiaries.

CMS Ex. 7 at 4.9  Because Petitioner has a felony conviction that is *per se* detrimental to the Medicare program, the regulatory criteria for denial of enrollment is met without any

Page 8

need for CMS to take into account the essentially equitable factors raised by Petitioner.  *See*42 C.F.R. § 424.530(a)(3)(i)(B).  *See, e.g., Stephen White, M.D.*, DAB No. 2912 at 17 (“CMS was not required to prove that [the petitioner’s] felony was one that placed the Medicare program or its beneficiaries at immediate risk.  The regulation provides that various types of felony convictions have been categorically determined to warrant denial of a provider’s or supplier’s Medicare enrollment application.”).

In his brief, Petitioner does not argue that CMS wrongly applied 42 C.F.R. § 424.530(a)(3)(i)(B) when it determined that insurance fraud is an enumerated felony offense that is *per se*detrimental to the best interests of the Medicare program and its beneficiaries.  Rather, Petitioner, without citation to supporting authority, claims that CMS did not adequately consider his post-conviction history.  P. Br.  Thus, Petitioner challenges CMS’s refusal to exercise its discretion to grant his application.  However, my review of this matter is limited to whether CMS was *authorized*to deny Petitioner’s enrollment application, and I may not second-guess CMS when it declines to exercise *its*discretion.  *See, e.g.,* *Abdul Razzaque Ahmed, M.D.*, DAB No. 2261 at 19 (2009), *aff’d*, *Ahmed v. Sebelius*, 710 F. Supp. 2nd 167 (D. Mass. 2010) (discussing that neither an ALJ nor the Board may substitute discretion when CMS had established the necessary regulatory elements).

CMS considered Petitioner’s claims that he has been rehabilitated since his felony convictions in 2016, explaining:

[Petitioner] asserts that he has taken multiple rehabilitative steps since his March 15, 2016 conviction.  [Petitioner] further asserts that, due to his efforts, he has been reinstated by the OIG and the state of Pennsylvania, credentialed by Blue Cross/Blue Shield, and hired by a renowned podiatry practice.  However, other agencies’ authority to suspend or reinstate an individual’s license and certification to practice is separate and distinct from CMS’ authority to deny enrollment in the Medicare program.  Additionally, [Petitioner] argues that his bad choices regarding prescriptions have already cost him a lot, including his practice, career, wife, children, friends and the respect of his community.  [Petitioner] further argues that he was incarcerated for 9 months, spent 14 months on parole, and after his incarceration was homeless.  However, CMS finds that the substantial penalties and consequences that [Petitioner] has faced serve to further demonstrate the severity of his offenses.  [Petitioner] contends that he has taken his sobriety very seriously and guards it as the most important thing in his life, as he attends three NA meetings

Page 9

weekly and has an addiction therapist that he speaks with regularly to this day.  [Petitioner] further contends that he has become an assistant minister and, along with his pastor, began and completed a year long Celebrate Recovery program for anyone struggling with addiction.  He also claim [sic] to be active with the Pennsylvania Professionals Health Monitoring Program and the Pennsylvania Physician Health Program, which requires twice weekly drug and alcohol testing.  [Petitioner] also notes that he has been selected to be part of United States Representative Guy Reschenthaler’s Congressional Opiate Advisory Committee, is active with his local county’s Fayette Drug and Alcohol Commission where he speaks at events to tell his story, and is set to be appointed to the Advisory Board once a seat opens up.  As a part of his reconsideration request, [Petitioner] has submitted letters to validate his participation in 12-step programs, his participation in the physician’s health program, and character letters detailing his path to recovery and his treatment of patients [internal citation omitted].

While CMS commends [Petitioner] for the work he is doing to maintain sobriety and provide assistance to his local community, this does not negate that [he] was convicted of multiple felonies related to insurance fraud and controlled substances.  [Petitioner] contends he can be an asset, not a liability to the Medicare program and its beneficiaries, as submits letters from Morris expressing its hopes that [Petitioner] be permitted to participate in the Medicare program.  However, CMS rejects [Petitioner’s] contention.  [Petitioner] knowingly and willfully circumvented the laws that were put in place to protect patients.  By doing so, [Petitioner] compromised the Medicare program for personal gain.  Abuse of the Medicare Trust Funds is a detriment to the Medicare program.  Petitioner’s] criminal action that resulted in his felony convictions clearly shows that he has a propensity to break the laws, rules, and regulations for personal gain.  CMS deems [Petitioner’s] date [sic] felony convictions detrimental to the best interests of the Medicare program and its beneficiaries.  Therefore, CMS finds the denial of [Petitioner’s] Medicare enrollment under § 424.530(a)(3) is appropriate.

CMS Ex. 7 at 5.

Petitioner argues that “CMS failed to give due weight to the person [he] is now” and “did not consider [his] prior seven (7) years of sobriety and his current reinstatement of his medical license,” or his current employment and ability to participate in federal programs.  P. Br.  Petitioner claims he has “taken responsibility for his past legal issues and has taken affirmative steps to remedy his past,” and had submitted reference letters from “respected members of the community.”  As quoted above, CMS explicitly

Page 10

considered these arguments and rejected them, and determined that Petitioner’s convictions for “multiple felonies related to insurance fraud and controlled substances” were detrimental to the best interests of the Medicare program and its beneficiaries, warranting denial of his enrollment application.  CMS Ex. 7 at 5.

The question before me is whether CMS had a legitimate basis to uphold the denial of Petitioner’s enrollment application on a felony conviction within the preceding 10 years.  42 C.F.R. § 424.530(a)(3).  Inasmuch as Petitioner concedes that he was convicted of felony offenses within the preceding 10 years, to include insurance fraud, Petitioner has not demonstrated that CMS lacked a legal basis to deny his enrollment application.  42 C.F.R. § 424.530(a)(3)(i)(B) (listing insurance fraud as a felony offense that is *per se*detrimental to the best interests of the Medicare program and its beneficiaries); *see Dr. Robert Kanowitz*, DAB No. 2942 at 6 (2019) (“We also note that the language of section 424.530(a)(3) affords CMS discretion to grant enrollment earlier than 10 years after the applicant’s conviction but, as the [DAB] has observed, our (and the ALJ’s) role in enrollment appeals is limited to determining whether CMS’s denial . . . of enrollment was authorized by law.”).  Petitioner was convicted of felony offenses in the preceding 10 years, and the felony offense of insurance fraud is prescribed by regulation to be *per se*detrimental the best interests of the Medicare program and its beneficiaries.  Therefore, CMS was authorized to deny Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(3).

****CMS had a legitimate basis to uphold the denial of Petitioner’s enrollment application pursuant to 42 C.F.R. §**424.530(a)(4) because Petitioner did not report any felony convictions in response to an explicit instruction that he report any felony convictions within the preceding 10 years.****Although it is unnecessary to uphold more than one basis for revocation, I find that CMS was separately authorized to deny Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(4).  Pursuant to 42 C.F.R. § 424.530(a)(4), CMS is authorized to deny enrollment when a supplier “has submitted false or misleading information on the enrollment application to gain enrollment in the Medicare program.”

Regardless of the claimed reason, Petitioner did not report his felony convictions when he responded to a question directing him to report any final adverse legal actions, to include felony convictions, within the preceding 10 years.  CMS Ex. 3 at 3; *see*CMS Ex. 4 at 11.  Although Petitioner reports that he “mistakenly failed to provide more detailed information regarding his criminal record and did not intend to be misleading,” it is unclear why he would report a 2006 misdemeanor conviction (outside of the requested 10-year period) but “mistakenly” not report more recent felony convictions.  And to the extent Petitioner claims CMS “failed to prove [he] intentionally violated 42 C.F.R. § 424.535(a)(4) [sic],” he provides no support for a purported requirement that CMS prove an intent to not disclose felony convictions on an enrollment application.  P. Br.

Page 11

To the contrary, the DAB had explained that 42 C.F.R. § 424.535(a)(4) “does not require proof that [the applicant] subjectively intended to provide false information, only proof that he *in fact provided*misleading or false information that he certified as true.”).10  *Sonjay Fonn, D.O. and Midwest Neurosurgeons, LLC*, DAB No. 3086 at 16 (2023) (emphasis in original).  Petitioner’s failure to report any felony convictions within the preceding 10 years resulted in false information being provided on his enrollment application (i.e., that he did not have any felony convictions within the preceding 10 years).  *See*CMS Exs. 3 at 3; 4 at 11.

I recognize that Medicare suppliers may rely on office staff, credentialing companies, and other professionals to assist them with their Medicare enrollment matters.  However, an applicant who certifies and signs an enrollment application certifies having “read the contents of this application, and the information contained herein is true, correct, and complete,” and agrees that “[t]he authority to sign the application on your behalf may not be delegated to any other person.”  CMS Ex. 4 at 24.  By not disclosing his felony convictions, 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 deny his enrollment application pursuant to 42 C.F.R. § 424.530(a)(4).

Finally, I note that my role in this matter is limited, and I am not empowered to reverse CMS’s determination for equitable reasons such as Petitioner’s laudable rehabilitation or a claimed inadvertent error in failing to report the felony convictions on his July 2022 enrollment application.  Inasmuch as Petitioner disputes that CMS declined to exercise its discretion when it denied his enrollment application, I cannot second-guess CMS’s unwillingness to exercise its discretion so long as 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 [ALJ] or the [DAB] to mitigate the consequences of a valid and binding revocation determination.”).  Because CMS had a legitimate basis to uphold the denial Petitioner’s Medicare enrollment application, I uphold CMS’s determination.

Page 12

V. Conclusion

For the foregoing reasons, I affirm the denial of Petitioner’s July 13, 2022 Medicare enrollment application.

Endnotes

1   Because neither party identified the underlying crime upon which the conspiracy plea was based, I cannot ascertain whether Petitioner was convicted of a felony or misdemeanor conspiracy offense.  *See*18 Pa.C.S. § 905(a) (“Except as otherwise provided in this title, attempt, solicitation, and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy.”).

2   I note that CMS did not submit evidence that Petitioner’s plea of guilty to the felony offenses “consolidated into count 2” (acquiring controlled substances by misrepresentation, fraud, forgery, deception, or subterfuge (35 P.S. § 780-13(a)(12)) was accepted by a judge and that he was convicted of this offense.  *But see*CMS Br. at 2, citing to CMS Ex. 2.  Petitioner concedes that his “plea of guilty/nolo contendere” to this offense was accepted on March 15, 2016, at which time the presiding judge imposed a sentence.  Petitioner Brief (P. Br.).

3   CMS also cited to the IG’s exclusion based on section 1128(a)(4) of the Social Security Act.  CMS Ex. 7 at 4; *see*42 C.F.R. § 424.530(a)(3)(i)(D).  Because CMS did not submit evidence of Petitioner’s exclusion by the IG, I do not consider the exclusion as a basis for denying Petitioner’s enrollment application.

4   Petitioner did not paginate his brief.  Therefore, I have not provided pinpoint citations to his brief.

5   Petitioner identified several witnesses, to include a pastor, a retired police officer, a retired state representative, the mayor of a city in Pennsylvania, and several health care professionals, but did not submit the written direct testimony of any of these individuals as a proposed exhibit.  *See*Pre-Hearing Order § 12 (“If a party seeks to present witness testimony, it must submit as a proposed exhibit with its pre-hearing exchange the complete, written direct testimony of any proposed witness.”).

6   Because a hearing is unnecessary for cross-examination of any witnesses, I have not issued a ruling on CMS’s motion for summary judgment.  Rather, I issue this decision on the merits.

7   My findings of fact and conclusions of law are in bold and italics.

8   Pursuant to 42 C.F.R. § 424.530(a)(3)(i)(D), CMS may deny an enrollment application when the applicant has been convicted of a felony that would result in mandatory exclusion under section 1128(a) of the Social Security Act.  Inasmuch as CMS did not submit evidence of the basis for Petitioner’s exclusion, I do not consider this provision as a basis for denying Petitioner’s Medicare enrollment.

9   CMS also discussed the facts underlying Petitioner’s convictions and determined that “the specific facts underlying the conviction” demonstrated that his felony offenses were detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 7 at 4.  Because insurance fraud is enumerated by regulation as a *per se*detrimental felony crime, it is unnecessary for me to further address CMS’s case-specific analysis.  *See*42 C.F.R. § 424.530(a)(3)(i)(B).

10   Sections 424.530(a)(4) (pertaining to denial of enrollment) and 424.535(a)(4) (pertaining to revocation of enrollment) contain nearly identical language.  The DAB’s analysis is applicable to both enrollment denial *and* enrollment revocation cases under sections 424.530 and 424.535.  *See, e.g., Brian K. Ellefsen, DO*, DAB No. 2626 at 9-10 (2015).
  
          /s/
        Leslie C. Rogall

                      Administrative Law Judge Back to top
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