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                              Jeffrey Nelson, M.D., DAB CR5895 (2021)
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Jeffrey Nelson, M.D., DAB CR5895 (2021)








  
  
    

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





Jeffrey Nelson, M.D.
(NPI: 1134414741)
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Respondent.
Docket No. C-21-395Decision No. CR5895July 2, 2021

        
              
    

      DECISION

The Centers for Medicare & Medicaid Services (CMS) denied Petitioner’s application for enrollment in the Medicare program pursuant to 42 C.F.R. § 424.530(a)(3).  As explained more fully below, CMS properly concluded that Petitioner’s application should be denied because he had been convicted, within the previous ten years, of a felony offense detrimental to the Medicare program and its beneficiaries.  I therefore find that CMS had a legal basis to deny Petitioner’s Medicare enrollment application.

I. Background

Petitioner, Dr. Jeffrey Nelson, is an Ohio physician specializing in Neurosurgery.  CMS Exhibit (Ex.) 5 at 6, 8.  In August 2012, Dr. Nelson and the State Medical Board of Ohio (Medical Board) executed a consent agreement suspending Dr. Nelson’s physician

**Page 2**

training certificate indefinitely.1
  CMS Ex. 2.  By signing the consent agreement, Dr. Nelson stipulated that he had called in to pharmacies and picked up false prescriptions for Vicodin and Valium for his own use, as alleged in a June 13, 2012 notice, which was incorporated by reference in the consent agreement.  CMS Ex. 2 at 2; *see also*CMS Ex. 1 at 1.  Dr. Nelson further stipulated that he was impaired in his ability to practice according to acceptable and prevailing standards of care and that he had entered inpatient treatment for opiate dependence and alcohol/benzodiazepine dependence.  CMS Ex. 2 at 2; *see also*CMS Ex. 1.  Among other conditions, Dr. Nelson agreed to abstain from alcohol and illegal substances, and to undergo frequent screenings.  CMS Ex. 2. at 2-4.

In February 2013, Dr. Nelson and the Medical Board executed a second consent agreement in which the Board reinstated Dr. Nelson’s training certificate subject to terms of probation.  CMS Ex. 3.  By executing the second consent agreement, Dr. Nelson stipulated that, on or about September 27, 2012, he was charged in the Cuyahoga County Court of Common Pleas in Ohio (Ohio state court) with two counts of Deception to Obtain a Dangerous Drug, in violation of Ohio Rev. Code § 2925.22, and two counts of Illegal Processing of Drug Documents, in violation of Ohio Rev. Code § 2925.23,2
 based upon the same conduct that led the Board to suspend his training certificate.  CMS Ex. 3 at 2.  The consent agreement recited that, on or about January 15, 2013, Dr. Nelson filed a “Motion for Intervention in Lieu of Conviction” and that the Ohio state court granted the motion.  *Id.*  The agreement further acknowledged that if the Ohio state court “finds in the future that Dr. Nelson has successfully completed and complied with the intervention plan . . . the underlying criminal charges will be dismissed.”  *Id.*

Having apparently completed the Ohio state court’s intervention plan successfully, Dr. Nelson filed a motion to expunge and seal the records related to his criminal offenses, which the court granted on October 11, 2017.  CMS Ex. 4.

On or about September 5, 2019, Dr. Nelson applied for enrollment as a Medicare supplier.  *See*CMS Ex. 5 at 14.  CMS, through its contractor, CGS Administrators, LLC (CGS), denied that application pursuant to 42 C.F.R. § 424.530(a)(3).  CMS Ex. 7.  CGS concluded that Dr. Nelson had been convicted, within the previous ten years, of a felony

**Page 3**

offense that was detrimental to Medicare and its beneficiaries.  *Id.* at 1.  Dr. Nelson requested reconsideration by letter dated September 3, 2020, and CMS upheld the denial in a reconsidered determination dated November 23, 2020.  CMS Exs. 8, 9.

Petitioner requested a hearing before an administrative law judge and the case was assigned to me.  At my direction, my office acknowledged Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  The Prehearing Order directed each party to file a prehearing exchange consisting of a brief and any supporting documents, including the written direct testimony of any proposed witnesses, and set forth the deadlines for those filings.  Prehearing Order ¶¶ 4-5.  In response to the Prehearing Order, CMS filed a combined brief and motion for summary judgment (CMS Br.) and nine proposed exhibits (CMS Exs. 1‐9).  Petitioner filed a combined brief and opposition to CMS’s motion (P. Br.), but no further exhibits.  Neither party proposed any witnesses.  Petitioner did not object to CMS’s proposed exhibits.  Therefore, in the absence of objection, I admit CMS Exs. 1-9 into the record.  Prehearing Order ¶ 7.

The Prehearing Order advised the parties that they must submit written direct testimony for any proposed witnesses and that an in‐person hearing would be necessary only if the opposing party requested the opportunity to cross‐examine a witness.  Prehearing Order ¶¶ 8-10; CRDP §§ 16(b), 19(b); *Pac. Regency Arvin,*DAB No. 1823 at 7-8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross‐examine those witnesses).  Neither party proposed any witnesses, and neither party offered the written direct testimony of any witness.  Consequently, an in‐person hearing is not required, and I issue this decision based on the written record, without regard to whether the standards for summary judgment are met.  Prehearing Order ¶¶ 8-11; CRDP § 19(d).  I deny CMS’s motion for summary judgment as moot.

II. Issue

The issue in this case is whether CMS had a legal basis to deny Petitioner’s Medicare enrollment application.

III. Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(*l*)(2); *see also* Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

**Page 4**

IV. Dicussion

**A. Statutory and Regulatory Background**

The Act authorizes the Secretary of Health and Human Services (Secretary) (HHS) to establish regulations for enrolling providers and suppliers in the Medicare program.  Act § 1871 (codified at 42 U.S.C. § 1395hh).  To receive payment for covered Medicare items or services, suppliers like Petitioner must be enrolled in the Medicare program.  42 C.F.R. § 424.505.  In order to enroll in the Medicare program and receive billing privileges, suppliers must meet certain criteria.  42 C.F.R §§ 424.505, 424.510.  CMS may deny a prospective supplier’s enrollment application for any reason stated in 42 C.F.R. § 424.530(a), including if the supplier has been convicted of certain felony offenses within the preceding ten years.

Specifically, the regulation provides:

(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 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—

* * * *

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

42 C.F.R. § 424.530(a)(3).

**Page 5**

**B. Findings of Fact, Conclusions of Law, and analysis.**

***1. CMS had a legal basis to deny Petitioner’s Medicare enrollment application under 42 C.F.R. § 424.530(a)(3) because within the ten years preceding his application, Petitioner was convicted of a felony offense that CMS has determined to be detrimental to the best interests of the Medicare program or its beneficiaries.3***

CMS may deny a supplier’s request to enroll in the Medicare program if, within the preceding ten years, the supplier was convicted of a felony offense that CMS “determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.530(a)(3); *see also*Act § 1842(h)(8) (42 U.S.C. § 1395u(h)(8)) (authorizing the Secretary to deny or terminate enrollment after ascertaining that a supplier has been convicted of a felony offense the Secretary has determined is “detrimental to the best interests of the program or program beneficiaries.”).  Offenses for which enrollment may be denied include – but are not limited to – felony crimes against persons such as murder, rape, assault, and similar crimes; financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and similar crimes; felonies that place the Medicare program or its beneficiaries at immediate risk, such as convictions for criminal neglect or misconduct; and felonies that would result in mandatory exclusion under section 1128(a) of the Act.  42 C.F.R. § 424.530(a)(3)(i).

***a. Petitioner was convicted of a felony offense within the ten years preceding his application to enroll in Medicare.***

Section 424.530(a)(3) defines a conviction for which enrollment may be denied by cross‐referencing the definition at 42 C.F.R. § 1001.2.  In turn, section 1001.2 provides:

*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:

There is a post-trial motion or an appeal pending, or
	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;

**Page 6**

(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.

As I have described above, on or about September 27, 2012, Petitioner was charged with two counts of Deception to Obtain a Dangerous Drug (Ohio Rev. Code § 2925.22) and two counts of Illegal Processing of Drug Documents (Ohio Rev. Code § 2925.23), both of which are felonies under Ohio law.  CMS Ex. 3 at 2; CMS Ex. 4 at 1; P. Br. at 2.  Petitioner then filed a “Motion for Intervention in Lieu of Conviction,” pursuant to Ohio Rev. Code § 2951.041.  CMS Ex. 3 at 2; P. Br. at 2.

Under Ohio law, offenders charged with certain criminal offenses can request to participate in an intervention plan designed by the court.  Ohio Rev. Code § 2951.041(A)(1).  The court may accept such a request if it “has reason to believe that drug or alcohol usage by the offender was a factor leading to the criminal offense,” among other reasons.  *Id.*If the court finds the defendant eligible and grants the request for intervention, the court “shall accept the offender’s plea of guilty;” “place the offender under the general control and supervision of the county probation department . . . or another appropriate local probation or court services agency;” and “establish an intervention plan” involving treatment, random drug testing, and other suitable terms and conditions.  Ohio Rev. Code § 2951.041(C), (D).  If the court finds that the offender successfully completed the intervention plan by, among other conditions, abstaining from alcohol and illegal drugs and participating in treatment for at least one year, the court “shall dismiss the proceedings against the offender.”  Ohio Rev. Code § 2951.041(E).  Such a disposition “shall be without adjudication of guilt,” and “is not a criminal conviction for purposes of any disqualification or disability imposed by law and upon conviction of a crime.”  Furthermore, the court may seal or expunge the related records.  *Id.*  By contrast, if the offender fails to comply with the terms of the intervention plan, the court may “enter a finding of guilty and impose an appropriate sanction.”  Ohio Rev. Code § 2951.041(F).

The Ohio state court granted Petitioner’s request to enter intervention in lieu of conviction on February 12, 2013.  *See*CMS Ex. 3 at 2.  I infer that Petitioner successfully completed intervention in lieu of conviction because, on October 11, 2017, the Ohio state court granted Petitioner’s motion to expunge the records related to the criminal charges against him.  CMS Ex. 4.

Petitioner entered intervention pursuant to Ohio Rev. Code § 2951.041 on or about February 12, 2013.  Thus, if intervention in lieu of conviction represents a conviction as defined in the federal regulations, it occurred within the ten years preceding his

**Page 7**

September 5, 2019 enrollment application.  Petitioner argues that the disposition of the criminal charges against him is not a “conviction,” as the term is defined in 42 C.F.R. §§ 424.530(a)(3) and 1001.2.  P. Br. at 6-7.  Petitioner asserts that “CMS has not proffered any evidence that a judgment of conviction was entered” against him nor produced “evidence that Dr. Nelson had a guilty plea entered against him.”  *Id*. at 7, 8.  I disagree.

Petitioner stipulated – and his brief confirms – that the Ohio state court granted Petitioner’s motion for intervention in lieu of conviction.  CMS. Ex. 3; P. Br. at 2.  Under the applicable statute, if a court grants an offender’s request for intervention in lieu of conviction, the court “*shall accept the offender’s plea of guilty*.”  Ohio Rev. Code § 2951.041(C) (emphasis added).  I presume that the Ohio state court before which Petitioner appeared processed Petitioner’s request as the statute directs.  Accordingly, the court must have accepted a guilty plea from Petitioner.4
  The federal definition of “convicted” expressly includes the situation in which a “Federal, State or local court has *accepted a plea of guilty* . . . by an individual or entity.”  42 C.F.R. § 1001.2 (definition of *Convicted*(emphasis added)) (as incorporated by reference in 42 C.F.R. § 424.530(a)(3)).

However, even if the Ohio state court did not accept Dr. Nelson’s guilty plea, Dr. Nelson was convicted within the meaning of 42 C.F.R. §§ 424.530(a)(3) and 1001.2 because he “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.  Several decisions of DAB administrative law judges have held that intervention in lieu of conviction pursuant to Ohio Rev. Code § 2951.041 is such a program.  *See, e.g.*,*Diane Marie Krupka a/k/a Diane Marie Salak*, DAB CR5621 at 5-6 (2020), *aff’d on other grounds*,DAB No. 3020 (2020); *John R. Tomko, R.Ph.*, DAB CR1156 (2004); *Joseph S. Scheidler*,*D.O.,* DAB CR1143 (2004).

Petitioner takes issue with this conclusion for several reasons, but his arguments are unpersuasive.  Petitioner argues that the cited cases are inapplicable because they involve exclusion pursuant to section 1128(a) of the Act, which he characterizes as a “different regulatory scheme” than that governing Medicare enrollment.  P. Br. at 8.  Although the HHS Inspector General (IG) enforces exclusions pursuant to section 1128(a), while CMS administers Medicare enrollment, the goal of protecting HHS programs from untrustworthy providers and suppliers is common to both.  Further, when CMS proposed

**Page 8**

to amend 42 C.F.R. § 424.530(a)(3) by incorporating the definition of “convicted” set forth in 42 C.F.R. § 1001.2, it explained why it concluded that adopting the IG’s definition would be beneficial.  CMS explained that “this regulatory definition is based on the definition of ‘convicted’ in section 1128(i) of the Act.”  78 Fed. Reg. 25,013, 25,022 (Apr. 29, 2013).  CMS elaborated, “utilizing a well-established regulatory definition of the term would clarify for the public the types and scopes of convictions that fall within the purview of these two sections.”  *Id.*  Thus, it is apparent that the drafters intended to adopt a definition of “convicted” consistent with that used by the IG.  For these reasons, I find that decisions interpreting the definition of “convicted” found in 42 C.F.R. § 1001.2 (as well as the statutory definition at section 1128(i) of the Act) provide persuasive authority for interpreting the language at 42 C.F.R. § 424.530(a)(3).

Petitioner additionally argues that the regulation does not apply to the disposition of his case because “a judgment of conviction was never entered nor withheld.”  P. Br. at 7.  He points to Ohio Rev. Code § 2951.041(E), which states that successful completion of the intervention-in-lieu program “is ‘not a criminal conviction[.]’”  *Id.*  While Petitioner’s interpretation of Ohio Rev. Code § 2951.041(E) may have merit as a matter of Ohio law, it is federal law that determines whether Petitioner has been convicted for purposes of Medicare enrollment.  *John A. Hartman, D.O.*, DAB No. 2911 at 13 (2018) (“federal law governs a determination of whether [a] supplier has been convicted of a qualifying offense for enrollment purposes.”).  I find that, by virtue of his participation in intervention in lieu of conviction pursuant to Ohio Rev. Code § 2951.041, Petitioner was convicted of a criminal offense within the meaning of the federal regulations at 42 C.F.R. §§ 424.530(a)(3) and 1001.2.

Despite Petitioner’s arguments to the contrary, intervention in lieu of conviction is a first offender, deferred adjudication, or other program or arrangement where judgment of conviction has been withheld.  If an Ohio court grants an offender’s request to enter intervention, the court accepts the offender’s guilty plea, stays further criminal proceedings, places the offender under supervision, and requires the offender to fulfill certain conditions such as abstaining from drugs and alcohol, undergoing treatment, participating in recovery support services, and submitting to drug testing.  *See* Ohio Rev. Code § 2951.041(C), (D).  If the offender fails to comply with any term or condition of the intervention plan, the court may enter a finding of guilt and impose a sanction, which may include a term of imprisonment.  Ohio Rev. Code § 2951.041(F).  Only if the offender successfully completes intervention will the court dismiss the criminal charges “without adjudication of guilt.”  Ohio Rev. Code § 2951.041(E).  Because the offender has entered a guilty plea and the court has the power to find the offender guilty without further proceedings, judgment of conviction is withheld until the court is satisfied that the offender has complied with all court-ordered terms and conditions.

In sum, I conclude that, because Dr. Nelson participated in intervention in lieu of conviction pursuant to Ohio Rev. Code § 2951.041, he was convicted within the meaning

**Page 9**

of 42 C.F.R. §§ 424.530(a)(3) and 1001.2.  The offenses for which Petitioner was convicted were felonies under Ohio law.  Ohio Rev. Code §§ 2925.22, 2925.23.  Having concluded that Petitioner has a felony conviction within the ten years preceding his application to enroll as a Medicare supplier, I next consider whether CMS properly determined that Petitioner’s felony offenses were detrimental to the best interests of the program and its beneficiaries.

***b. The felony offenses for which Dr. Nelson was convicted are per se detrimental to Medicare because they relate to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances; as such, they would result in mandatory exclusion under section 1128(a)(4) of the Act.***

In promulgating 42 C.F.R. § 424.530(a)(3), CMS determined that the enumerated crimes are detrimental per se to Medicare.  *See Letantia Bussell, M.D.*, DAB No. 2196 at 9 (2008).  These crimes include “. . . [a]ny felonies that would result in mandatory exclusion under section 1128(a) of the Act.”  42 C.F.R. § 424.530(a)(3)(i)(D).  As CMS’s hearing officer stated in the reconsidered determination:

CMS finds that Dr. Nelson’s offenses of Deception to Obtain a Dangerous Drug and Illegal Processing of Drug Documents to be severe in nature and akin to the enumerated crimes in § 424.530(a)(3)(i)(D), which CMS has found to be *per se* detrimental to the Medicare program and its beneficiaries. Specifically, CMS finds it similar to felony convictions relating to controlled substance[s] as identified in § 1128(a)(4) of the Act.

CMS Ex. 9 at 3.

I agree with CMS’s determination that Dr. Nelson’s felony convictions were for offenses that would mandate exclusion under section 1128(a)(4) of the Act.  The statute provides:

The Secretary shall exclude the following individuals and entities from participation in any Federal health care program . . . :

* * * *

**(4) Felony conviction relating to controlled substance**

Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal

**Page 10**

or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

Act § 1128(a)(4) (codified at 42 U.S.C. § 1320a-7(a)(4)).

As he stipulated to the Medical Board, between December 2011 and April 2012, Dr. Nelson “called in to pharmacies and picked up approximately six false prescriptions for Vicodin and two false prescriptions for Valium in the names of [his] patients, using [his] name and the DEA number of [his] hospital training program.”  CMS Ex. 1 at 1.  Those actions led to the felony charges against him for Deception to Obtain a Dangerous Drug in violation of Ohio Rev. Code § 2925.22 and Illegal Processing of Drug Documents in violation of Ohio Rev. Code § 2925.23.  CMS Ex. 3 at 2.  These offenses occurred after August 21, 1996 and, on their face, are “relat[ed] to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  As I have explained above, Dr. Nelson was convicted under federal law based on the disposition of the criminal charges against him by intervention in lieu of conviction.  CMS was thus correct to consider Dr. Nelson’s felony convictions per se detrimental to the best interests of the Medicare program and its beneficiaries.  *See*CMS Ex. 9 at 3.

Petitioner contends that such a conclusion is impossible because, if conviction of the offenses mandates exclusion under the Act, then the IG would have excludedDr. Nelson – which, Petitioner asserts, has not occurred.  P. Br. at 9.  Petitioner’s argument is misguided.  Section 424.530(a)(3)(i)(D) refers to felonies that *would* result in mandatory exclusion, not felonies that *have already* resulted in mandatory exclusion.  42 C.F.R. 424.530(a)(3)(i)(D) (emphasis added).  *See, e.g.*,*Dinesh Patel, M.D.*, DAB No. 2551 at 9 (2013) (“the fact that the IG has not yet excluded [an individual] provides no basis for us to infer that [the individual’s] conviction falls outside the scope of the requirements for a mandatory exclusion under section 1128(a) . . . and therefore is not subject to revocation by CMS under section 424.535(a)(3)(i)(D).”).

I therefore find that CMS had a legal basis to deny Petitioner’s application for Medicare enrollment because Dr. Nelson’s convictions were for crimes “relat[ed] to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance” and therefore fell within the purview of 42 C.F.R. § 424.530(a)(3)(i)(D), which describes  felonies “that would result in mandatory exclusion under section 1128(a) of the Act.”  However, even if Dr. Nelson’s convictions were not for offenses described in section 424.530(a)(3)(i)(D), CMS would nevertheless be authorized to deny his application if it determined, based on a case-specific inquiry, that his offenses were detrimental to the best interests of the Medicare program and its beneficiaries.

**Page 11**

***c. Even if Dr. Nelson’s offenses were not felonies that would result in mandatory exclusion as described in 42 C.F.R. § 424.530(a)(3)(i)(D), CMS acted within its discretion to determine that the convictions were detrimental to the best interest of the Medicare program and its beneficiaries.***

Even if Dr. Nelson’s felony offenses were not of the type described in 42 C.F.R. § 424.530(a)(3)(i)(D), CMS would nevertheless be authorized to deny Petitioner’s application if CMS determined, based on a case-specific inquiry, that his felony offenses were detrimental to the best interests of the Medicare program and its beneficiaries.  A conviction need not be for a crime specifically enumerated in 42 C.F.R. § 424.530(a)(3) in order to be considered detrimental.  CMS is authorized to determine, on a case-by-case basis, that a particular felony conviction is detrimental to Medicare and its beneficiaries and therefore supports denial.  *See, e.g.*,*Saeed A. Bajwa, M.D.*, DAB No. 2799 at 5 n.4, 10-12 (2017) (42 C.F.R. § 424.535(a)(3)(i) authorizes CMS to determine what felony convictions are a basis for revocation; CMS is not limited to the felonies enumerated as examples).

In this case, it is apparent that CMS exercised its discretion, pursuant to 42 C.F.R. § 424.530(a)(3)(i), to determine that Dr. Nelson’s felony convictions (if not covered by section 424.530(a)(3)(i)(D)) are nonetheless detrimental to the Medicare program and its beneficiaries and, accordingly, justify denying Petitioner’s enrollment application.  *See Bajwa*, DAB No. 2799 at 10-11.  If I am satisfied that CMS exercised its discretion under 42 C.F.R. § 424.530(a)(3)(i), I may not substitute my own determination as to whether a given felony is detrimental to the Medicare program and its beneficiaries for that of CMS.  *See Brian K. Ellefsen, DO*, DAB No. 2626 at 7 (2015).

The record before me amply demonstrates that CMS exercised its discretion.  CMS expressly found that Dr. Nelson’s convictions were detrimental to the Medicare program and its beneficiaries.  After discussing Dr. Nelson’s offenses in the context of section 424.530(a)(3)(i)(D), the reconsidered determination considered the specific circumstances surrounding Dr. Nelson’s convictions:

CMS also finds that Dr. Nelson’s convictions of Deception to Obtain a Dangerous Drug and Illegal Processing of Drug Documents are detrimental to the best interests of the Medicare program and its beneficiaries *based on the particular circumstances surrounding*[the convictions].  Dr. Nelson admitted that from December 2011 to April 2012, he called in to pharmacies and picked up six false prescriptions for Vicodin and two false prescriptions for Valium in the names of his patients, using his name and [the] DEA number of his hospital training program . . . .

**Page 12**

Dr. Nelson also acknowledged that he wrote the prescriptions to obtain the Vicodin and Valium for self-use, and that he used the medications.  CMS also finds it relevant that the Ohio Medical Board suspended Dr. Nelson’s training certificate based upon his admission . . . .  Dr. Nelson’s deceitful actions call his honesty and integrity into question.  Additionally, Dr. Nelson’s involvement with illegal drugs presents a danger to the health, safety and welfare of Medicare beneficiaries.  *Consequently, CMS considers the underlying conduct that led to Dr. Nelson’s felony convictions . . . detrimental to the best interests of the Medicare program and its beneficiaries*.

CMS Ex. 9 at 3-4 (emphasis added).

CMS’s reconsidered determination plainly illustrates that it considered the facts and circumstances specific to this case and acted within its discretion to determine that Dr. Nelson’s offenses were detrimental.  As I have explained, it is not my role to second-guess CMS’s exercise of discretion to determine that a conviction is detrimental to the best interests of the Medicare program.  However, even if I were to exercise such oversight, I would not find CMS’s determination to be unfounded.

Because CMS exercised its discretion to determine that Petitioner’s convictions were detrimental to Medicare and its beneficiaries, I may not second-guess that determination.

V. Conclusion

For the foregoing reasons, I affirm CMS’s determination to deny Petitioner’s application for Medicare enrollment and billing privileges.  I deny CMS’s motion for summary judgment as moot.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. I take administrative notice that the Medical Board issues training certificates to individuals who have been accepted into accredited internship, residency, or clinical fellowship programs at Ohio institutions. https://med.ohio.gov/Apply/Physician/Training-Certificate-MD-DO-DPM#Eligibility (last visited June 24, 2021). back to note 1
                      2. I take administrative notice that Ohio Rev. Code §§ 2925.22 and 2925.23 are felony offenses. back to note 2
                      3. My findings of fact and conclusions of law appear as numbered headings in bold italic type. back to note 3
                      4. I find disingenuous Petitioner’s argument that there is no documentary evidence proving that he pleaded guilty. Because the records relating to the criminal charges against Petitioner have been sealed or expunged, CMS could not have gained access to copies of the relevant documents, such as the indictment or information, pleadings, or court orders. See CMS Ex. 4. The fact that those records are sealed does not prove that the court failed to accept Petitioner’s guilty plea, as required by statute. back to note 4 Back to top
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