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                              Sibyl K. Simon, M.D., P.L., DAB CR6375 (2023)
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Sibyl K. Simon, M.D., P.L., DAB CR6375 (2023)








  
  
    

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





Sibyl K. Simon, M.D., P.L.
(NPI: 1871921098 / PTAN: HQ993A),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-23-138Decision No. CR6375October 17, 2023

        
              
    

      DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke the enrollment of Petitioner, Sibyl K. Simon, M.D., P.L., in the Medicare program as a supplier.

I.  Background and Procedural History

Petitioner is a physician practice owned by Dr. Sibyl K. Simon.  In a June 8, 2022 notice of initial determination, a CMS contractor revoked Petitioner’s enrollment in the Medicare program, effective March 22, 2022, for the following reason:

42 CFR § 424.535(a)(3) – Felonies

[CMS] has been made aware of Sibyl Simon’s March 22, 2022 , felony conviction, as defined in 42 C.F.R. § 1001.2, for Criminal Mischief--$1000 or more in violation of Florida Statutes § 806.13(1)(a) and 806.13(1)(b)[(3)], and Tampering with Evidence in violation of Florida Statutes § 918.13(l) in

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the Nineteenth Judicial Circuit Court, in and for St. Lucie County, Florida.  Sibyl Simon is listed as the sole owner and managing employee of SIBYL K. SIMON, M.D., P.L.’s Medicare 855 enrollment record.

CMS Ex. 2 at 1.  The initial determination stated that Petitioner may be eligible to enroll again in the Medicare program on March 23, 2032.  CMS Ex. 2 at 3.

Petitioner timely requested that CMS reconsider the revocation of its Medicare enrollment.  CMS Ex. 1; CMS Ex. 6 at 1.  Petitioner submitted ten exhibits in support of the reconsideration request.  *See* CMS Ex. 6 at 1-2.  Petitioner asserted in the request that Dr. Simon’s conviction involved “a minor incident that occurred five years ago.”  CMS Ex. 1 at 2.  Petitioner argued that Dr. Simon’s actions were “ill-considered,” but “she did not intentionally violate Florida law.”  CMS Ex. 1 at 4.  Despite that, Petitioner stated that Dr. Simon entered a plea of nolo contendere to the charges of criminal mischief and tampering with evidence.  CMS Ex. 1 at 4.  As a result, an adjudication of guilt for Dr. Simon was withheld and the sentence of two years of probation was terminated in less than six months.  CMS Ex. 1 at 5.  Petitioner argued that Dr. Simon’s felony conviction did not involve an intentional interference with any legal investigations, was unrelated to the practice of medicine or the billing for health care services, and did not place anyone in danger of physical harm.  CMS Ex. 1 at 5.

In an October 14, 2022 reconsidered determination, a CMS hearing officer upheld the initial determination to revoke Petitioner’s Medicare enrollment.  CMS Ex. 6.  Specifically, the hearing officer concluded that “we find Dr. Simon’s felony offenses to be detrimental to the Medicare program and beneficiaries based on the specific facts and circumstances underlying it.”  CMS Ex. 6 at 5.  This is because CMS found “that Dr. Simon’s conduct displays a lack of accountability, dishonest behavior, and a lack of sound judgment.”  CMS Ex. 6 at 4.  The hearing officer also upheld the lengthy re-enrollment bar imposed on Petitioner because the hearing officer found “that Dr. Simon’s felony offenses are severe and serious in nature and[,] therefore, pose a threat to the financial well-being of the Medicare program and its beneficiaries.”  CMS Ex. 6 at 5.

Petitioner timely requested a hearing before an administrative law judge (ALJ) to dispute the reconsidered determination.  Along with the hearing request, Petitioner submitted the ten exhibits that Petitioner originally submitted with the reconsideration request.  On December 13, 2022, the Civil Remedies Division acknowledged receipt of the hearing request and issued my Standing Prehearing Order (SPO), which provided instructions and dates for prehearing submissions.

As its prehearing submission, CMS filed a brief (CMS Br.), which included a motion for summary judgment, and seven marked exhibits (CMS Exs. 1-7).  Petitioner filed a

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prehearing submission consisting of a prehearing brief (P. Br.) in opposition to summary judgment and two proposed exhibits (P. Exs. 1-2).  CMS filed a reply brief (CMS Reply).

II.  Admission of Evidence

Neither of the parties objected to the proposed exhibits in this case.  Therefore, I admit CMS Exhibits 1 through 7 and Petitioner Exhibit 2.  I exclude Petitioner Exhibit 1 because it is duplicative of CMS Exhibit 6.  SPO ¶ 7 (“Petitioner must not submit documents that CMS has already submitted as proposed exhibits.”); Civil Remedies Division Procedures (CRDP) § 14(a).

I also admit into the record Petitioner’s exhibits from its reconsideration request that have not otherwise been submitted in this proceeding as marked exhibits (i.e., P. Recon. Req. Exs. 5-10).  Electronic Filing System (E-File) Document No. 1d at 22-43.  These documents were part of the record on reconsideration and, therefore, are appropriately part of the record in this case.  *See* CMS Ex. 6 at 2.

III.  Decision on the Written Record

I directed the parties to submit the written direct testimony for any witnesses they wanted to offer and explained that an evidentiary hearing would only be necessary if a party requested to cross-examine a witness for which written direct testimony had been submitted.  SPO ¶¶ 11-13; CRDP §§ 16(b), 19(b).  Neither party submitted written direct testimony from any witnesses.  Because there is no need to conduct an in-person hearing, I issue a decision based on the written record.  SPO ¶ 14; CRDP § 19(d).  I deny CMS’s summary judgment motion as moot.

IV.  Issue

The only issue in this case is:

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3).CMS apparently has added Dr. Simon’s name to the CMS Preclusion List.  Although Petitioner appears to raise CMS’s action in adding Dr. Simon’s name to the Preclusion List as an issue in this case, as explained below, I do not have jurisdiction to adjudicate that issue.

Petitioner filed two documents requesting a hearing.  The first uploaded document, entitled “Request for ALJ Review,” disputed Petitioner’s revocation and stated that Dr. Simon’s felony convictions were not enumerated in 42 C.F.R. § 424.535(a)(3) as being

Page 4

detrimental to the best interests of the Medicare program and its beneficiaries.  E-File Document No. 1.  The second document, entitled “Request for Administrative Law Judge Review of Revocation Pursuant to 42 CFR § 498.22” (Hearing Req. Br.) is sixteen pages long and details various arguments as to why Petitioner’s Medicare enrollment should not be revoked.  E-File Document No. 1b.  In the last sentence of that document, Petitioner stated that “[i]t would be appropriate for the ALJ to lift the revocation entirely, as the basis for revocation of my Medicare Enrollment and billing privileges as well as my placement on the Preclusion List, have not been shown by CMS.”  Hearing Req. Br. at 15.

In briefing, Petitioner identified two issues in this case related to the revocation of Medicare enrollment.  However, Petitioner went on to state:  “Furthermore, Respondent’s act of pursuing preclusion has now placed undue burden on my ability to practice medicine in the state of Florida. . . .”  P. Br. at 2.  Petitioner also stated that the “placement of [Dr. Simon] on the Preclusion List will” jeopardize Dr. Simon’s medical license and “is a disciplinary action or punishment.”  P. Br. at 6.

Other than these modest references in Petitioner’s filings, Petitioner did not otherwise discuss the addition of Dr. Simon’s name to the CMS Preclusion List.

In CMS’s brief, CMS noted that Petitioner challenged the placement of Dr. Simon’s name on the Preclusion List but asserted that Petitioner did not raise that issue in Petitioner’s reconsideration request.  CMS Br. at 2-3.  Despite this, CMS argued that Dr. Simon’s felony convictions were a sufficient bases to uphold CMS’s action to add Dr. Simon’s name to the Preclusion List.  CMS Br. at 3, 12-13.  In fact, CMS identified the placement of Petitioner on the Preclusion List as one of the issues I could decide in this case.  CMS Reply at 3.

However, despite the parties’ belief otherwise, I do not have jurisdiction to consider a Preclusion List issue in this case.  As an initial matter, it is important to note that Petitioner is a physician practice owned by Dr. Simon.  The practice’s Medicare enrollment was revoked based on Dr. Simon’s felony convictions.  Dr. Simon is also representing the practice in this proceeding.  As a result, some of the arguments in this case conflate the practice (i.e., the Petitioner in this case) and Dr. Simon (the owner and representative of Petitioner).  Because this case solely involves the revocation of enrollment for Petitioner, Dr. Simon is not personally a party to this case.  *See* 42 C.F.R. § 498.2 (defining “affected party” as the provider or supplier “that is affected by an initial determination or by any subsequent determination” and “party” as “the affected party or CMS.”); 42 C.F.R. § 498.42.

In addition, the notice of initial determination submitted in this case only discusses the revocation of Petitioner’s Medicare enrollment and not the addition of a name on the Preclusion List.  E-File Document No. 1d at 2-4; CMS Ex. 2.  Therefore, other than the parties discussing the matter in a pleading and in briefs, the record does not reflect that CMS added either Petitioner’s name or Dr. Simon’s name to the

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Preclusion List.  CMS’s action to revoke enrollment is a different appealable “initial determination” than adding names to the Preclusion List.  *See* 42 C.F.R. § 498.3(b)(17), (20).  Therefore, if CMS added Petitioner’s or Dr. Simon’s name to the Preclusion List, it would have needed to do so in another notice of initial determination that was not submitted in this case.

Finally, as stated by CMS, Petitioner did not raise a Preclusion List issue in Petitioner’s reconsideration request.  CMS Ex. 1.  Petitioner was represented by counsel at the reconsideration stage of appeal.  CMS Ex. 1 at 1, 8.  Also, the CMS hearing officer did not mention or address a Preclusion List issue in the reconsidered determination.  CMS Ex. 6.  My jurisdiction is limited to the matters addressed on reconsideration.  42 C.F.R. § 498.5(n)(2) (indicating that a party is only entitled to a hearing before an ALJ concerning the Preclusion List if the party is dissatisfied with a reconsidered determination); *see also* *Rollington Ferguson, M.D*., DAB No. 2949 at 3 (2019) (the regulations require the issuance of a reconsidered determination before a party is entitled to ALJ review); *Denise A. Hardy, D.P.M*., DAB No. 2464 at 5 (2012) (“By filing a request for a hearing without having first obtained a reconsidered determination, Petitioner did not comply with the procedures set forth in the applicable regulations, which were stated in [the] revocation notice, and is therefore not entitled to a hearing before an ALJ.”).  Therefore, neither the possible addition of Petitioner’s nor Dr. Simon’s name to the Preclusion List is an issue before me.

V.  Jurisdiction

I have jurisdiction to decide the issue identified above.  42 C.F.R. §§ 498.3(b)(17), 498.5(*l*)(2); *see also* 42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 424.545(a), 498.1(g).

VI.  Findings of Fact, Conclusions of Law, and Analysis

***1. Petitioner is a physician practice that is solely owned by Dr. Simon.  Petitioner was enrolled in the Medicare program as a supplier in 2013.***

Dr. Simon has a Doctor of Medicine degree, is a licensed physician in the state of Florida, and practices in the field of psychiatry.  P. Recon. Req. Exs. 6, 10 (E-File Document No. 1d at 25, 37). Dr. Simon worked in various positions until 2013, when Dr. Simon established Petitioner as a private practice.  P. Recon. Req. Ex. 6, 10 (E-File Document No. 1d at 25-27, 37).  Dr. Simon is the sole owner of Petitioner.  CMS Ex. 7 at 1.  Petitioner enrolled in the Medicare program as a supplier (i.e., “Clinic/Group Practice”) with an effective date of October 1, 2013.  CMS Ex. 7 at 1-2.

Page 6

***2. A Florida Highway Patrol (FHP) investigation concluded that Dr. Simon, while driving a rented car, collided with another vehicle, left the scene of the accident, and painted over the damage to the rental car.  Dr. Simon was charged with felony Criminal Mischief and Tampering with Evidence.  Dr. Simon pleaded no contest to the charges.  A Florida Circuit Judge accepted Dr. Simon’s plea, withheld the adjudication of guilt, and ordered Dr. Simon to serve two years of probation.  Ultimately, a Circuit Judge terminated the probation early.***

According to FHP records, on July 17, 2017, FHP received a report of a “hit and run crash” on the Florida Turnpike and sent a trooper to investigate.  CMS Ex. 3 at 3.  The complaining party told the investigator that a Toyota Prius, on a shoulder of the road, passed the complaining party’s car and “sideswip[ed] our right with its left side.  The Prius then reentered the Turnpike failing to stop.  I was able to get a picture of the tag on my cell phone.”  CMS Ex. 3 at 3.  The complaining party indicated that the Prius and the complaining party’s car “were back and forth in traffic when the driver [of the Prius] passed him on the right shoulder while he was travelling [north bound] . . . then collided with the right front of [the complaining party’s car] with its left side.”  CMS Ex. 3 at 3; 5; *see also* CMS Ex. 3 at 7 (drawing of the incident involving the two cars).

The trooper noted damage to the right side of the complaining party’s car and “transfer paint to the right side passenger door and fender area.”  CMS Ex. 3 at 3.

Based on the picture of the license plate, the trooper determined that the Prius was a rental car owned by Avis, and Avis told the trooper that the car had been rented to Dr. Simon.  CMS Ex. at 4.  The investigating trooper contacted Dr. Simon, who ended their phone call in order to speak with a lawyer.  CMS Ex. 3 at 4.  The investigating trooper asked another trooper to locate the Prius.  The other trooper found the car and reported that “the vehicle clearly had damage which was consistent with a collision with [the complaining party’s car].  He also indicated that he could see red transfer paint in the damaged area, however[,] it appeared that it had been spray painted over with white paint with over spray on the front left tire and ground w[h]ere the vehicle was parked.”  CMS Ex. 3 at 4.

The investigating trooper viewed photographs of the Prius entering the Florida Turnpike without damage and leaving the Florida Turnpike with visible damage to the driver’s door.  CMS Ex. 3 at 4.

Dr. Simon’s lawyer agreed to let the investigating trooper speak with Dr. Simon.  According to the trooper, Dr. Simon denied being in a car accident but admitted to spray painting the Prius.  Dr. Simon stated that the paint was used on the car because Dr. Simon had an accident at a garage.  The trooper informed Dr. Simon of the photographic

Page 7

evidence that the rental car showed no damage upon entering the Florida Turnpike.  CMS Ex. 3 at 4.

The investigating trooper concluded the following:

Based on my training and experience of 8 years as a law enforcement officer, I concluded that the damage to the defendant’s vehicle is consistent with a vehicle collision described by the victim.  I believe that Mrs. Sibyl Kalathara Simon knew that she was involved in a collision and made a concerted effort to hide, cover, or tamper with the evidence of such a crime by painting over the damaged area in the parking lot of her employment, with paint purchased from Walmart in St. Lucie County.  (This is a violation of F.S.S. 806.13.1a being the vehicle does not belong to her, and a Violation of         F.S.S. 918.13 tampering with the evidence of a crime).  The estimated cost of damage from the paint and nail polish remover being applied to the vehicle in a large area would be in the range of $1000-$1500 and require the majority of the vehicle to be repainted.

CMS Ex. 3 at 5.

Dr. Simon was charged with Criminal Mischief and Tampering with Evidence, both third degree felonies.  CMS Ex. 4 at 1.  On March 21, 2022, Dr. Simon signed a Felony Plea Form and pleaded no contest to the felony charges.  CMS Ex. 4 at 1-3.  Also on March 21, 2022, a Circuit Judge of the Circuit Court of the Nineteenth Judicial Circuit for St. Lucie County, Florida, accepted Dr. Simon’s plea.  CMS Ex. 4 at 4.  On March 22, 2022, the Circuit Judge entered an Order of Probation that acknowledged Dr. Simon’s “plea of nolo contendere,” withheld the adjudication of guilt, ordered Dr. Simon to be placed on probation for two years, and stipulated that probation would automatically terminate after one year if all conditions of probation were met.  CMS Ex. 5 at 1-2.  On August 5, 2022, a Circuit Judge ordered the early termination of Dr. Simon’s probation.  P. Recon. Req. Ex. 5 (E-File Document No. 1d at 23).

***3. CMS had a legitimate basis to revoke Petitioner’s enrollment in the Medicare program because Petitioner’s owner was convicted within the last ten years of felonies that CMS reasonably determined were******detrimental to the best interests of the Medicare program and its beneficiaries under 42 C.F.R. § 424.535(a)(3).***

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to create regulations governing the enrollment of providers and suppliers to

Page 8

furnish health care items and services to Medicare program beneficiaries.  *See* 42 U.S.C. § 1395cc(j).  For purposes of the Medicare program, physicians and entities that are not a “provider of services” are considered to be “suppliers.”  *See* 42 U.S.C. § 1395x(d), (u).

Under the Secretary’s regulations, a supplier must enroll in the Medicare program to receive payment for covered Medicare items or services provided to beneficiaries.  42 C.F.R. § 424.505.  To enroll, a supplier must complete and file an enrollment application with CMS and meet all of the requirements to be a supplier.  42 C.F.R. §§ 424.510, 424.530.

Once enrolled, CMS may revoke a supplier’s enrollment.  42 C.F.R. § 424.535(a).  When CMS revokes enrollment, it will establish a re-enrollment bar from one to ten years in duration.  42 C.F.R. § 424.535(c).

In addition, the Act authorizes the Secretary to terminate the enrollment of a physician or other supplier in the Medicare program if the physician or other supplier has been convicted under federal or state law of an offense that the Secretary determines is detrimental to the best interests of the Medicare program or program beneficiaries. 
42 U.S.C. § 1395u(h)(8).  The Secretary effectuated this statutory provision by authorizing CMS to revoke a supplier’s enrollment when:

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

42 C.F.R. § 424.535(a)(3)(i) (2022).

As explained below, all of the elements necessary for CMS to revoke Petitioner’s Medicare enrollment are present in this case.

***a. Petitioner was enrolled in the Medicare program as a supplier and is owned by Dr. Simon.***

As found in the first Finding of Fact/Conclusion of Law (FFCL 1) above, Petitioner is a physician practice that was enrolled in the Medicare program and is owned by Dr. Simon.  Petitioner does not dispute this.

***b. Dr. Simon was convicted within the last ten years of two Florida felony offenses.***

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The regulations provide the following definition for the word “convicted”:

*Convicted* means that -

* * * * *

(c) A Federal, State or local court has accepted a plea of guilty or *nolo contendere* by an individual or entity; or

(d) An individual or entity has entered into participation in a first offender, deferred adjudication or other program or arrangement where judgment of conviction has been withheld.

42 C.F.R. § 1001.2.

As found in FFCL 2, in 2022, Dr. Simon pleaded no contest/nolo contendere to two felony offenses under Florida law and the Circuit Judge accepted the plea.  Further, based on this plea, Dr. Simon’s adjudication of guilt was deferred pending successful completion of various requirements while serving probation.  After completing the requirements, Dr. Simon’s probation was terminated early.  Therefore, Dr. Simon is considered to have been convicted in the last ten years for the purposes of revocation.  Petitioner did not dispute this.

***c. CMS’s case-specific determination that Petitioner’s felony convictions are detrimental to the best interests of the Medicare program and its beneficiaries is reasonable.***

Petitioner argues that it is not subject to revocation because CMS failed to identify how Petitioner’s felony offenses meet any of the enumerated offense in 42 C.F.R. § 424.535(a)(3)(ii).  P. Br. at 3.  Petitioner acknowledges that § 424.535(a)(3)(ii) provides a non-exhaustive list of offenses that may serve as a basis for revocation (i.e., the regulation disclaims that “offenses include, but are not limited in scope and severity to . . . .”); however, Petitioner asserts that CMS “is not addressing the wide scope of difference between the felonies listed and the two I was convicted of, because my convictions do not fall into these categories at all.”  P. Br. at 3-4.

I reject Petitioner argument that CMS must rely on the list of offenses in the regulations as the total universe of felony offenses that may serve as the basis for revocation.  As Petitioner recognized in its argument, the Secretary promulgated a non-exhaustive list of the types of felony offenses that CMS will treat as per se detrimental to the best interests of the program and its beneficiaries.  42 C.F.R. § 424.535(a)(3)(ii); 71 Fed. Reg. 20,754,

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20,768 (Apr. 21, 2006); *Letantia Bussell, M.D.*,DAB No. 2196 at 9 (2008).  Therefore, in addition to comparing Petitioner’s felony conviction to the listed examples of criminal offenses in § 424.535(a)(3)(ii), CMS also has the authority to determine that Petitioner’s felony conviction is detrimental to the Medicare program and its beneficiaries based on “a case-specific, adjudicative determination.”  *Eva Orticio Villamor-Goubeaux*, DAB No. 2997 at 9-10 (2020); *see also Fayad v. Sebelius*, 803 F. Supp. 2d 699, 704 (E.D. Mich. 2011) (upholding CMS’s determination to revoke a supplier’s Medicare enrollment based on an unenumerated felony conviction, “[g]iven [the petitioner’s] dishonesty and demonstrated untrustworthiness in his dealings with the federal government, the Secretary reasonably concluded that the Plaintiff’s continued participation in the Medicare program was contrary to the best interests of that program.”).

Because the Secretary has authorized CMS to make the determination as to whether a felony conviction is detrimental, my review of that determination is necessarily deferential.  However, CMS still must “explain[] why the offense is detrimental to the Medicare program and its beneficiaries.”  *Michael Scott Edwards, OD, & M. Scott Edwards,* *OD, PA*, DAB No. 2975 at 11 (2019).  Further, the determination must be reasonable.  *Villamor-Goubeaux*, DAB No. 2997 at 10; *see also Fayad*, 803 F. Supp. 2d at 704 (upholding a determination that a felony offense was detrimental because “the Secretary reasonably concluded that Plaintiff’s continued participation in the Medicare program was contrary to the best interests of that program.”).

In the reconsidered determination, CMS provided an explanation as to why Petitioner’s felony conviction was detrimental to the program and program beneficiaries.  The CMS hearing officer discussed the following as part of the case-specific determination:

CMS finds that Dr. Simon’s felony offense is detrimental to the best interests of the Medicare program based on the specific facts and circumstances underlying the offenses. According to the warrant for her arrest, Dr. Simon willfully and maliciously damaged property belonging to Avis, with the damage being $1000 or greater.  In addition, Dr. Simon did, unlawfully, knowing that a criminal . . . investigation by . . . a law enforcement agency . . . was pending or about to be instituted, altered, destroyed, concealed, or removed a record, document, or thing with the purpose to impair its verity or availability in such . . . investigation.  Furthermore, in its reconsideration request, the Practice admits that Dr. Simon knowingly purchased paint and used it to cover the damage on the door of the rental vehicle.  However, the Practice argues that Dr. Simon’s felony offenses were very minor.  CMS finds that Dr. Simon’s behavior is very concerning.

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Specifically, CMS finds that Dr. Simon’s conduct displays a lack of accountability, dishonest behavior, and a lack of sound judgment.  Payment under the Medicare program is made for claims submitted in a manner that relies on the trustworthiness of our Medicare partners.  The behavior detailed above calls into question the Practice’s ability to be a trustworthy and reliable partner in the Medicare program.  It stands to reason that this behavior could detrimentally impact the Medicare Trust Funds.  A negative impact on the Medicare Trust Funds is also detrimental to Medicare beneficiaries.

CMS Ex. 6 at 4-5.

Petitioner disagrees with this assessment and argues that Petitioner’s felony offenses are not detrimental to the best interests of the Medicare program and its beneficiaries.

The underlying facts of this case, which have been fully disclosed previously and noted in the revocation appeal, show this was an incident that occurred almost six years ago.  My convictions did not involve either the Medicare program or its beneficiaries, and this incident in no way shows that I currently am or have been in the past a detriment to either in my practice.

* * * * *

Respondent fails to explain how the facts of my conviction as well as my subsequent actions thereafter contributed to untrustworthiness that then impacted the Medicare Trust Fund and its beneficiaries in a negative way.  Any justification that has, heretofore, been put forward by Respondent confuses correlation with causation:  having a felony conviction for tampering does not, by its very nature alone, show that I will tamper or have tampered in another instance.

P. Br. at 4.  Petitioner also argues that Dr. Simon is not a threat to the Medicare program or its beneficiaries because, in 2022, Petitioner only received approximately $20,000 in Medicare reimbursement.  P. Br. at 7; P. Ex. 2.

Finally, Petitioner asserts that the following supports its case:

Page 12

Dr. Simon has no prior criminal record, disciplinary history, or incidents of malpractice;
	Dr. Simon demonstrated “upmost candor regarding this incident, by communicating openly with Florida police”; and
	Dr. Simon voluntarily disclosed her conviction to the Florida Board of Medicine, Florida Department of Health, and CMS.P. Br. at 8-9.

CMS’s conclusion that Petitioner’s felonious conduct is detrimental to the best interests of the Medicare program and its beneficiaries is reasonable.  Based on the FHP investigation report, which Petitioner submitted into the record on reconsideration, it is clear that Dr. Simon caused the rental car to collide with another car.  Dr. Simon did this while passing the other car on the shoulder of the road and prematurely reentering the right lane of the road, resulting in the left side of Dr. Simon’s car hitting the right side of the other car.  Dr. Simon did not stop, but rather continued driving to work.  While at work, a FHP trooper contacted Dr. Simon about the accident and Dr. Simon ended the telephone call.  A trooper found the rental car Dr. Simon had been driving and noticed left side damage that had been painted.  CMS Ex. 3 at 3, 7.  In a physician’s report written after examining Dr. Simon to determine if Dr. Simon had a substance abuse problem, it states that Dr. Simon attempted to end the phone call from the trooper by stating that Dr. Simon need to care for patients.  After ending the call, Dr. Simon went to a store, bought spray paint, and painted over the damaged area on the car.  P. Recon. Req. Ex. 10 (E-File Document No. 1d at 37-38). 
As a result of these actions, Dr. Simon was charged with and pleaded no contest to the following felony offenses:

Criminal Mischief (Fla. Stat. ch. 806.13(1)) – A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto; andTampering with or fabricating physical evidence (Fla. Stat. ch. 918.13(1)(a)) – No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation.Petitioner disputes some of the facts stated in the FHP investigation report.  For example, Dr. Simon says that the car was damaged at the entrance to a garage and that “Dr. Simon

Page 13

has no recollection of hitting another vehicle on July 17, 2017.”  CMS Ex. 1 at 2-3; Hearing Req. Br. at 3.  Petitioner also asserts that, following the phone call from the investigation trooper, “Dr. Simon became concerned that Avis would discover the damage on her vehicle caused by the garage entrance.  In a complete lapse of judgment that she deeply regrets, Dr. Simon decided to repair the damage to the vehicle herself, using paint purchased at Walmart.”  CMS Ex. 1 at 3; Hearing Req. Br. at 4.

Significantly, Dr. Simon did not dispute the facts in the FHP investigation report in written direct testimony made under oath or penalty of perjury.  Further, Dr. Simon pleaded no contest to the criminal charges.  Finally, Petitioner submitted that report as an exhibit with her reconsideration request.  Therefore, I accept the investigation report’s version of events given that Petitioner submitted no substantive evidence to contradict it.

The circumstances surrounding the criminal charges are disconcerting.  Those events show an individual who engaged in dangerous behavior and attempted to avoid responsibility through concealing evidence and further damaging (spray painting) a vehicle that did not belong to Dr. Simon.  Dr. Simon’s actions reflected poorly on her judgment and character.  Even if I were to credit Dr. Simon’s version of events, I note that Petitioner admits an attempt to conceal from Avis the damage that Dr. Simon caused to the rental car when entering or leaving a garage.  Petitioner describes this effort as a complete lapse in judgment.  I agree.  However, in addition to showing highly questionable judgment, it is also indicative of engaging in dishonesty in an effort to avoid personal financial loss.

Petitioner argues that Dr. Simon showed candor in dealings with the FHP investigation.  However, according to the report from a physician who examined Dr. Simon, Dr. Simon’s efforts to conceal the damage to the rental car were directly related to the FHP investigation:

Dr. Simon continues stating that she continued to work at 6 AM, and she stated that she does not recall hitting anyone and then leaving the scene.  She then stated that she arrived in Fort Pierce, and she then received a call from a state trooper.  The trooper told her that she was reported and that she had allegedly been in an accident described as a “hit and run,” and that he wanted to see her vehicle immediately.

Dr. Simon stated that she was rounding on her patients and stated that she could not stop rounding and told the police trooper that she would meet him after her rounds. She stated that the trooper began to yell at her, telling her that this was unacceptable.  Dr. Sibyl Simon stated that she then told him

Page 14

that she would not speak any further with him until after she spoke with an attorney.  She then did something she described as “really stupid.”  **She was worried that the scrape she had gotten the day before would be misinterpreted as possibly part of the “hit and run,” and decided that she would try to conceal the damage.**

P. Recon. Req. Ex. 10 (E-File Document No. 1d at 37-38) (emphasis added).  If this version of Dr. Simon’s story is to be believed, Dr. Simon reacted to the FHP investigation by trying to conceal damage to the rental car that would have been relevant to the investigation.  Dr. Simon failed to be forthright to the FHP and admitted to an intent to conceal damage to the car from the FHP with spray paint.

Petitioner also asserts that Dr. Simon’s positive character can be shown by the fact Dr. Simon voluntarily informed the Florida Board of Medicine/Florida Department of Health and CMS of the criminal conviction.  P. Recon. Req. Ex. 7 (E-File Document No. 1d at 29-30).  However, Dr. Simon was required by law to make those disclosures.  42 C.F.R. §§ 424.516(d)(1)(ii), 424.535(a)(9); Fla. Stat ch. 456.072(x).

Finally, I note that despite Dr. Simon’s no contest plea to the criminal charges, Petitioner disputes that Dr. Simon actually met the elements for conviction.  Petitioner asserts that Dr. Simon “had no malicious intent when she attempted to repair the minor damage to the rental vehicle” and “[i]t was not her intent to conceal evidence from law enforcement.”  CMS Ex. 1 at 3; Hearing Req. Br. at 4.  This effort to argue that Dr. Simon was not in fact guilty of the crimes that Dr. Simon pleaded no contest to is of no assistance in rehabilitating Dr. Simon’s character.  Dr. Simon signed a Felony Plea Form in which Dr. Simon “admit[ted] that I am guilty of the charge or charges I am pleading . . . No Contest/admitting to.”  CMS Ex. 4 at 2.  If Petitioner’s statements concerning the criminal charges are true, then Dr. Simon falsely admitted guilt to the Circuit Judge.

Based on the evidence of record, CMS reasonably concluded that Dr. Simon’s felony convictions were detrimental to the best interests to the Medicare program and its beneficiaries.  As CMS argues, honesty and good judgment are necessary attributes for providers and suppliers enrolled in the Medicare program.  CMS Reply at 1-3.  Dr. Simon showed neither of these related to her felony convictions.  Therefore, I uphold the revocation of Petitioner’s Medicare’s billing privileges.

***4. I cannot overturn the revocation based on potential collateral consequences to Dr. Simon’s medical license or because Dr. Simon was not disciplined by the Florida Department of Health.***

Page 15

Petitioner asserts that CMS’s revocation may negatively affect Dr. Simon’s Florida medical license.  Petitioner states that the revocation exceeds CMS’s authority because it amounts to imposing CMS’s regulations on a state licensing body.  Petitioner states that Dr. Simon obtained a dismissal of a disciplinary case based on the felony convictions.  Petitioner argues that CMS must defer to the decisions made by state officials.  P. Br. at 5-6; *see also* P. Recon. Req. Ex. 8 (E-File Document No. 1d at 32).

Petitioner’s argument is incorrect.  State governments have the authority to regulate public health and, by extension, health care professions within the state.  *Barsky v. Bd. of Regents of Univ. of the State of N.Y*., 347 U.S. 442, 449 (1954).  Nevertheless, state authority to act in a given field does not bind a federal government program.

To ensure state licensing laws are respected, the Act limits enrollment in the Medicare program to physicians who are “legally authorized to practice medicine and surgery by the State in which he performs such function or action.”  42 U.S.C. § 1395x(r)(1).  However, Congress did not make state licensing the only enrollment requirement.  Rather, Congress gave the Secretary authority to prohibit or revoke a physician or other supplier’s enrollment in the Medicare program based on felony convictions deemed to be detrimental to the program or beneficiaries.  42 U.S.C. § 1395u(h)(8).

Therefore, I cannot overturn the revocation because Dr. Simon’s Florida’s medical license may suffer negative consequences as a result of the revocation.

***5. I do not have the authority to review the length of re-enrollment bar.***

Whenever CMS revokes the enrollment of a supplier, CMS must also impose a re-enrollment bar that is between one and ten years in length.  42 C.F.R. § 424.535(c)(1)(i).  In this case, CMS imposed a ten-year re-enrollment bar.  CMS Ex. 2 at 3.  Petitioner believes that the ten-year re-enrollment bar is excessive.  P. Br. at 5.  However, I am unable to consider Petitioner’s arguments.  *Vijendra Dave, M.D.*, DAB No. 2672 at 9 (2016);*see also* 42 C.F.R. § 424.535(c)(2)(ii)(B).

**VII.  Conclusion**

I affirm CMS’s revocation of Petitioner’s Medicare enrollment.
  
          /s/
        Scott Anderson

                      Administrative Law Judge Back to top
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