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                              David Lee Smith, M.D., DAB CR5840 (2021)
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David Lee Smith, M.D., DAB CR5840 (2021)








  
  
    

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





David Lee Smith, M.D.
(NPI: 1710999750)
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-21-255Decision No. CR5840March 26, 2021

        
              
    

      DECISION

The Centers for Medicare & Medicaid Services (CMS) upheld the denial of a May 4, 2020 enrollment application submitted by Petitioner, David Lee Smith, M.D. (herein “Petitioner”), based on Petitioner’s felony conviction for reckless homicide within the preceding 10 years.  CMS also upheld Petitioner’s placement on its Preclusion List.  I affirm CMS’s determinations.

I.  Background and Procedural History

Petitioner is a family medicine physician who practices in South Carolina.  CMS Ex. 5 at 9-10.  On January 6, 2013, Petitioner was the driver of a vehicle that struck and killed a pedestrian.  CMS Ex. 5 at 56, 60, 66; *see*CMS Ex. 6.  A sentencing report indicates that Petitioner was indicted for violating “S.C. Code § 56-05-2845(A)(2),” felony driving under the influence with resulting death.  CMS Ex. 6.  On July 17, 2014, Petitioner entered a guilty plea to the felony offense of “Reckless Homicide, death results within 3 [years], caused by injury from vehicle,” in violation of S.C. Code Ann. § 56-05-2910.  CMS Ex. 6.  On July 17, 2014, a judge sentenced Petitioner to one year of probation, for which he received credit for five days of imprisonment.  CMS Ex. 6.  Sentencing terms

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included compliance with “Medical Board conditions” and random drug and alcohol testing.  CMS Ex. 6.

On March 29, 2017, the State Board of Medical Examiners for South Carolina (herein “Medical Board”) issued a public order in which it continued a previously imposed suspension of Petitioner’s medical license.  CMS Ex. 7 at 7.  The Medical Board’s order included the following factual findings:

3. On or about January 7, 2013, [Petitioner] was in a motor vehicle accident where he struck and killed a pedestrian.  [Petitioner] was arrested for a Felony [Driving Under the Influence (DUI)] Involving Death.

4. On or about January 16, 2013, [Petitioner] signed an agreement to temporarily surrender his medical license.

5. On or about July 17, 2014, [Petitioner’s] criminal charges were resolved when he pleaded guilty to reckless homicide and received a sentence of 5 years upon service of 5 days’ time served, and one year probation.

6. On or about November 24, 2015, the Board issued an Interim Order of Reinstatement returning [Petitioner] to work subject to certain conditions.

7. On or about July 13, 2016, the Board issued an Interim Order of Reinstatement removing all work related limitations.

8. On or about July 29, 2016, [Petitioner] was arrested in Georgia on the suspicion of driving under the influence.

9. On or about September 6, 2016, the Board issued an Order of Temporary Suspension.

10. No allegations were made that [Petitioner] abused alcohol or drugs, or was otherwise impaired in any way, when seeing patients.

11. Mike Kelly, Esquire, who represented the accident victim’s family, testified that the [Petitioner] admitted from the beginning that he was wrong.

CMS Ex. 7 at 5.  The Medical Board’s conclusions of law included the following:

4. In this case, first and foremost, the Board is sympathetic to the families of all involved.  The Board is keenly aware of its duty to protect the citizens of South Carolina.  Due to the circumstances involved in this case, the

Page 3

Board concludes that it is appropriate to keep [Petitioner’s] license suspended for an additional year from the date of this hearing.  After November 9, 2017, [Petitioner] may reappear before the Board to demonstrate that he is safe to practice medicine in South Carolina.  [Petitioner] must make this appearance before the full Board prior to being reinstated.  Finally, the Board concludes that it is appropriate to require the [Petitioner] to pay the costs incurred by the Board in the investigation of this matter and to publicly reprimand [Petitioner].

5. The sanctions imposed are consistent with the purpose of these proceedings and have been made after weighing the public interest and the need for the continuing services of qualified medical professionals against the countervailing concern that society be protected from professional ineptitude and misconduct.

6. The sanctions imposed are designed not to punish the licensee, but to protect the life, health, and welfare of the people at large.

CMS Ex. 7 at 6.  The Medical Board further concluded that Petitioner’s “conduct in this matter constitutes sufficient grounds for disciplinary or corrective action” under S.C. Code Ann. § 40-47-110(B)(2), (4).1
  CMS Ex. 7 at 6; *see*S.C. Code Ann. § 40‐47‐110(B)(2), (4) (applicability of section 40-47-110(B)(2) when a health care professional has been convicted of a “felony or other crime involving moral turpitude or drugs,” and applicability of section 40-47-110(B)(4) in the case of “habitual or excessive use or abuse of drugs, alcohol, or other substances that impair ability.”).  The Medical Board ordered, *inter alia*, that Petitioner be publicly reprimanded and that his suspension continue until November 9, 2017, at which time it required him to reappear before the Board prior to being eligible for reinstatement.  CMS Ex. 7 at 7.  In a subsequent order dated December 29, 2017, the Medical Board conditionally reinstated Petitioner’s medical license.  CMS Ex. 7 at 8-9.

On February 20, 2019, Petitioner submitted a Medicare enrollment application.2
  CMS Ex. 8.  Although Petitioner reported that his medical license had been suspended, he did not report his felony conviction for reckless homicide.  CMS Ex. 8 at 4.  Palmetto GBA (Palmetto), a Medicare administrative contractor, denied the application pursuant to

Page 4

42 C.F.R. § 424.530(a)(3), (4).  CMS Ex. 9.  On July 10, 2019, Petitioner submitted a request for reconsideration in which he argued that he was not under the influence of alcohol or drugs at the time of the fatal accident.  CMS Ex. 11.  Petitioner explained that he had experienced “an unusual neurologic event” while attending a football game several days prior to the accident, and that he had “another one of those episodes” when he swerved off the road and fatally struck the victim.  CMS Ex. 11 at 1.  Petitioner reported that he was later diagnosed with a seizure disorder and inferred that the accident was the result of a seizure.  CMS Ex. 11 at 1.  Petitioner also reported, without revealing that he had been convicted of DUI, that he had been “pulled [over] for suspicion of DUI because [he] rolled through a red light.”  CMS Ex. 11 at 1; *see*CMS Ex. 5 at 71 (sentencing report, filed in October 2018, for a “Driving Under the Influence of Alcohol” conviction).  Petitioner explained that he then “reported [him]self to the South Carolina Medical Board, and they decided to suspend [his] license for a year as [he] needed to get help for [another medical condition].”  CMS Ex. 11 at 1.

On October 22, 2019, Palmetto upheld the denial of Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(3).  CMS Ex. 10 at 1.  Petitioner requested an administrative law judge (ALJ) hearing to appeal the denial of his enrollment application, and on March 24, 2020, I issued a decision affirming that determination.  *David Lee Smith*, *M.D.*, DAB CR5566 (2020).

Petitioner did not appeal my decision, but rather, submitted a new enrollment application on May 4, 2020.  CMS Ex. 5.  Petitioner included a document entitled, “Explanation for positive liability answers,” that provided the following discussion:

On New Year’s Eve 2012, I was at a football game and had a black out episode.  I had not been drinking or using drugs, so I had no explanation for it.  It scared me, but I did not seek medical care, as I assumed it was just a freak thing.  A week later, I was driving home and had another episode.  Tragically, my car jumped a curb and killed a pedestrian. . . . [I] sought treatment at the Mayo Clinic and was diagnosed with a Complex Partial Seizure Disorder.  I was treated for this and it resolved.

CMS Ex. 5 at 56.  Petitioner further explained that he “accepted responsibility for the accident because [he] had chosen to drive without seeking medical care after the first event.”  CMS Ex. 5 at 56.  Petitioner reported that due to the “pain, shame and guilt” of the fatal accident, he “started expressing some self-destructive tendencies” and, in the summer of 2016, “was arrested in Georgia after rolling through a stoplight and charged

Page 5

with ‘DUI less safe’ and later pled guilty to the DUI as [his] blood alcohol was .08.”3
  CMS Ex. 5 at 56; *see*CMS Ex. 5 at 71.  Petitioner reported that his medical license had been reinstated, and that he had “paid a significant price for [his] prior actions . . . .”  CMS Ex. 5 at 56-57.

In support of his enrollment application, Petitioner submitted a heavily redacted February 2013 neurology consultation report that lacked a portion of the history of present illness and the entire assessment narrative discussion.4
  CMS Ex. 5 at 59-60.  Petitioner also submitted a heavily redacted letter from a neurologist.  CMS Ex. 5 at 62.

Petitioner submitted a letter entitled, “Why should I be allowed to see Medicare patients,” in which he explained that he “desperately want[s] to be able to provide for those Medicare patients that are in need, but without credentials, [he is] unable to do so.”  CMS Ex. 5 at 83-84.

In a letter dated June 25, 2020, Palmetto denied Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(3).  CMS Ex. 3.  Palmetto also informed Petitioner of his placement on CMS’s Preclusion List.  CMS Ex. 3 at 1.

Petitioner, through counsel, submitted a request for reconsideration dated August 28, 2020.  CMS Ex. 2.  Petitioner explained that he pleaded guilty to reckless manslaughter “based on his self-perceived error in neglecting to seek medical treatment after the December 2012 neurological event.”  CMS Ex. 2 at 1.  Petitioner argued that he should neither be denied enrollment nor placed on the Preclusion List.  CMS Ex. 2 at 2-5.  In support, Petitioner stated the following:

In this case, [Petitioner] pled guilty to Reckless Homicide.  His guilty plea was to an offense that was primarily based on a medical condition and was not an intentional act,

Page 6

evidencing [Petitioner’s] Reckless Homicide should be considered “minor” on the severity scale.

CMS Ex. 2 at 5.

On October 22, 2020, CMS’s Provider Enrollment & Oversight Group issued a reconsidered determination in which it upheld the denial of Petitioner’s enrollment and placement on the Preclusion List.  CMS Ex. 1.  CMS found Petitioner’s “felony conviction of Reckless Vehicular Homicide to be detrimental to the best interests of the Medicare program and its beneficiaries based on the specific facts underlying the conviction.”  CMS Ex. 1 at 3.  CMS explained that Petitioner operated a motor vehicle after he previously had a neurological event and was on notice “that such a neurological event could possibly occur at any time.”  CMS Ex. 1 at 3.  CMS further discussed that Petitioner’s felony conviction “calls into question his propensity to exercise good judgment and reflects a reckless disregard for the safety of those around him.”  CMS Ex. 1 at 3.  With respect to Petitioner’s claim that his offense was “minor,” CMS stated, in upholding Petitioner’s inclusion on the Preclusion List, that such a characterization “only solidifies” its assessment that Petitioner showed a lack of judgment and that “the passage of time has not improved his judgment or his regard for the safety of others.”  CMS Ex. 1 at 5.

Petitioner filed a request for an administrative law judge (ALJ) hearing on December 17, 2020.  On December 18, 2020, the Civil Remedies Division acknowledged receipt of Petitioner’s request for hearing and issued my Standing Pre-Hearing Order (Pre-Hearing Order) directing the parties to file pre-hearing exchanges in accordance with specific requirements and deadlines.  CMS filed a combined brief and motion for summary judgment (CMS Br.), along with 13 proposed exhibits (CMS Exs. 1-13).  Petitioner submitted a pre-hearing brief in response to CMS’s motion for summary judgment (P. Br.) and four proposed exhibits (P. Exs. 1‐4).  In the absence of any objections, I admit CMS Exs. 1-13 and P. Exs. 1-4 into the evidentiary record.

Petitioner submitted his own written testimony, along with the written testimony of a neurologist, David Hammett, M.D.  P. Exs. 1, 4.  Because CMS has not requested an opportunity to cross-examine these witnesses, a hearing is unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order §§ 12-14.  The record is closed, and I issue this decision on the merits.

II.  Issues

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 his July 2014 felony conviction.

Page 7

Whether CMS had a legitimate basis to uphold Petitioner’s placement on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and Analysis5

As a physician, 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)(1).  In order to participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may deny a supplier’s enrollment for any reason stated in, *inter alia*, 42 C.F.R. § 424.530.

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 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 and severity to—

(A)  Felony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.

42 C.F.R. § 424.530(a)(3).

Suppliers of health care services who have been denied enrollment have a statutory right to a hearing to dispute the denial.  42 U.S.C. § 1395cc(j)(8).  CMS may exercise its discretion to deny enrollment when it determines that a felony offense committed by a

Page 8

supplier is detrimental to the best interests of the program and its beneficiaries.  *See* *Fady Fayad, M.D*., DAB No. 2266 at 16 (2009), *aff’d*,803 F. Supp. 2d. 699, 704 (E.D. Mich. 2011).  A supplier who has been denied enrollment has a right to an ALJ hearing and DAB review.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2)-(3).

Additionally, CMS has established a single list of individuals and entities for whom Medicare Advantage plans cannot provide reimbursement for items and services they provide, and for prescribers to whom Medicare Part D plans cannot provide reimbursement for any prescriptions the individuals write.  42 C.F.R. §§ 422.222, 423.120(c)(6).  As relevant here, CMS may place an individual, entity, or prescriber on its Preclusion List under the following circumstances:

(3) The [individual, entity, or prescriber], regardless of whether they are or were enrolled in Medicare, has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.  Factors that CMS considers in making such a determination . . . are –

(i) The severity of the offense;
(ii) When the offense occurred; and
(iii) Any other information that CMS deems relevant to its determination.

42 C.F.R. §§ 422.2, 423.100.

***1. On January 6, 2013, Petitioner was the driver of a motor vehicle involved in a fatal accident involving a pedestrian.***

***2. Petitioner was indicted for the offense of felony driving under the influence with resulting death, and on or about July 14, 2014, he pleaded guilty to reckless homicide.***

***3. R******eckless homicide is felony offense for purposes of 42 C.F.R. § 424.530(a)(3).***

***4. Reckless homicide is a crime against a person pursuant to 42 C.F.R. § 424.530(a)(3)(i)(A), and CMS has determined that a felony crime against a person is per se detrimental to the best interests of the Medicare program and its beneficiaries.***

Page 9

***5. Applying a case-specific analysis, Petitioner’s offense involving the death of another person, due to his operation of a motor vehicle with reckless disregard for human life, is detrimental to the best interests of the Medicare program and its beneficiaries.***

***6. CMS properly upheld the denial of Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(3) because he has a felony conviction for a crime against a person within the 10 years preceding the submission of his enrollment application, and that offense is detrimental to the best interests of the Medicare program and its beneficiaries***

***7. Because Petitioner has a felony conviction for reckless homicide within the preceding 10 years, and that offense is detrimental to the best interests of the Medicare program, CMS had a legitimate basis to place him on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.***

In my previous decision in this matter, I addressed that Petitioner’s felony offense was *per se*detrimental to the Medicare program and its beneficiaries.  *See Smith,*DAB CR5566 at 7-9.  This analysis continues to be relevant, even though CMS, at the reconsidered determination level, offered a case-specific analysis of why Petitioner’s criminal offense is detrimental to the best interests of the Medicare program and its beneficiaries.6
  CMS Ex. 1 at 2-3; *but see*CMS Br. at 5-6.

Pursuant to the South Carolina Code, reckless homicide, which is punishable by up to 10 years of imprisonment, is defined as follows:

When the death of a person ensues within three years as a proximate result of injury received by the driving of a vehicle in reckless disregard of the safety of others, the person operating the vehicle is guilty of reckless vehicular homicide.

S.C. Code Ann. § 56-5-2910(A).  CMS has determined that offenses involving “[f]elony crimes against persons, *such as* murder, rape, assault, and other similar crimes” warrant a denial of enrollment for not less than 10 years from the date of the conviction.  42 C.F.R. § 424.530(a)(3)(i)(A), (a)(3)(ii) (emphasis added); *see*68 Fed. Reg. 22,064, 22,070 (Apr. 25, 2003) (stating that felony “crimes against persons, such as rape, murder, kidnapping, assault and battery, robbery, and other similar crimes” are detrimental and are grounds for CMS to “question the ability of the individual . . . with such a history to respect the life and property of program beneficiaries.”).  The Departmental Appeals Board (DAB)

Page 10

has held that CMS “may revoke a . . . supplier’s billing privileges based solely on a qualifying felony conviction, without regard to equitable or other factors.”  *Stanley Beekman, D.P.M.*,DAB No. 2650 at 3 (2015).  The DAB further explained that CMS may revoke billing privileges “based solely on a qualifying felony conviction” it has determined in a regulation to be detrimental to the best interests of the Medicare program and its beneficiaries.  *See* *Fayad*, DAB No. 2266 at 16.  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, D.O.*,DAB No. 2626 at 9-10 (2015).

With respect to whether a particular crime is *per se*detrimental to the best interests of the Medicare program and its beneficiaries, the DAB has explained that the examples of crimes that preclude enrollment for a period of 10 years following the date of the conviction are not comprehensive, stating:

The regulation then indicates that crimes detrimental to Medicare “include” those specified in subparagraphs (A) through (D) of section 424.535(a)(3)(i).  The words “include” or “including” are not terms of limitation or exhaustion.  When followed by a list of items, those words are reasonably read as signifying that the list contains merely illustrative examples of a general proposition or category that precedes the word and is not intended to preclude unmentioned items from being considered supportive or part of the general proposition or category.  *Puerto Rico Maritime Shipping Auth. v. ICC*, 645 F.2d 1102, 1112 n.26 (D.C. Cir. 1981) (“It is hornbook law that the use of the word ‘including’ indicates that the specified list ... that follows is illustrative, not exclusive.”).  Hence, section 424.535(a)(3)(i) is reasonably read as setting out a non-exhaustive list of crimes that may constitute a basis for revocation.

*Fayad*,DAB No. 2266 at 8.  The DAB has unambiguously stated, with respect to section 424.530(a)(3)(i)(A), that the “core, fundamental question . . . is whether [the] crime is a crime against a person.”  *Mark A. Kabat, D.O.*, DAB No. 2875 at 6 (2018).  The DAB held that “CMS may revoke . . . enrollment and billing privileges . . . if [a supplier] was convicted of a felony crime against a person.”  *Kabat*, DAB No. 2875 at 7.

Petitioner does not dispute that he was convicted of the felony offense of reckless homicide.  Section 424.530(a)(3)(i)(A) applies to all felony “crimes against persons.”  *Kabat*, DAB No. 2875 at 6-7.  The victim of Petitioner’s felony crime was the man who was killed due to Petitioner’s reckless disregard for his safety.  This is a felony conviction for a crime against a person, and therefore, Petitioner has been convicted of a crime against a person as contemplated by 42 C.F.R. § 424.530(a)(3)(i)(A).  *Kabat*, DAB

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No. 2875 at 6-7; *see Fayad*, DAB No. 2266 at 8.  CMS has determined that such an offense, *per se,*warrants the denial of enrollment in the Medicare program for a period of ten years following the date of the conviction.  42 C.F.R. § 424.530(a)(3).  CMS properly upheld the denial of Petitioner’s May 2020 enrollment application because he had been convicted of a felony crime against a person within the preceding 10 years.  *See*CMS Ex. 1 at 2-4.

A case-specific analysis of Petitioner’s criminal offense also yields a determination that the offense is detrimental to the best interests of the Medicare program and its beneficiaries.  Petitioner argues that the January 6, 2013 accident in which he struck and killed a pedestrian with his vehicle was “solely related to a neurological event,” basing this claim on his own “spotty memory” of the accident.  P. Br. at 2; *see*P. Ex. 2 at 2.  The only evidence Petitioner offers in support of this theory of causation is his own self‐serving testimony that a neurological event caused the accident.  *See*P. Ex. 1.  While it is certainly *possible* that Petitioner had a neurological event, it is unclear how Petitioner has definitively established that he actually suffered a neurological event at the time of the accident, being that he “only [had] snapshots of memories” covering the 15-minute period leading up to the accident and “was confused and unable to recall the events” when police responded to the accident scene.  CMS Ex. 5 at 56; P. Ex. 1 at 3-4; *see*P. Ex. 2 at 2 (neurologist report stating that Petitioner “has [a] very spotty memory of the entire episode.”).  In fact, Petitioner testified that he “could not remember the events leading up to the accident.”  P. Ex. at 1 at 4.  Just because Petitioner was later diagnosed with a “complex partial seizure disorder” that has apparently resolved does not mean that the evidence establishes that a seizure or neurological episode caused the accident.  *See*CMS Ex. 5 at 62; P. Ex. 2 at 2.

Petitioner has not submitted medical evidence that the fatal accident was actually caused by a seizure or any other “neurological event.”  Dr. Hammett’s testimony focuses on whether Petitioner should have sought medical treatment prior to the accident; notably, Dr. Hammett neither testified about whether Petitioner should have been driving a car at that time, nor did he address whether he believed that a seizure or other neurological event caused the accident.  P. Ex. 4.  Further, a February 2013 consultation report by Jerry J. Shih, M.D., a neurologist, did not address whether a seizure or other neurological event caused the fatal accident.  *See* P. Ex. 2.  In fact, immediately after summarizing Petitioner’s description of the accident, Dr. Shih stated the following:  “[i]t is noted that [Petitioner] was on Wellbutrin, Remeron, Neurontin, and trazodone at the time.”7
  P. Ex. 2 at 2.

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Petitioner has not submitted probative and credible evidence establishing that the fatal accident resulted from a seizure or other neurological event.  Although such a causation is possible, the only opinion of causation is by the living accident survivor who admittedly “could not remember the events leading up to the accident . . . .”  P. Ex. 1 at 4.  Regardless of *what*caused the accident, the simple fact is that Petitioner admitted that *he* operated a motor vehicle with “reckless disregard of the safety of others” and caused another person’s death.  CMS Ex. 6; *s**ee*S.C. Code Ann. § 56-5-2910(A).  Operating a motor vehicle with reckless disregard for the safety of others evidences that as a supplier, Petitioner cannot be trusted to respect the safety of Medicare beneficiaries.  *See, e.g.,*68 Fed. Reg. at 22,070.  Although Petitioner frames his wrongdoing as limited to his failure to seek medical attention for neurological symptoms, the wrongdoing is not necessarily his failure to seek medical attention.  Rather, assuming that a neurological event caused the accident, the wrongdoing is that Petitioner operated a motor vehicle even though he had recently experienced repeated “amnesic” episodes.  *See, e.g.,*P. Ex. 2 at 2.  Because Petitioner’s criminal offense of reckless homicide is detrimental to the Medicare program and its beneficiaries and had occurred within the preceding 10 years, CMS correctly denied his Medicare enrollment application pursuant to 42 C.F.R. § 424.530(a)(3).

CMS also acted appropriately when it placed Petitioner on its Preclusion List.  CMS Ex. 3 at 1.  Petitioner argues that “Reckless Homicide Related to a Neurological Event is ‘Minor’ on the Severity Scale,” claiming that reckless homicide is “a less severe felony than most felonies” and that “CMS should have found the offense at issue is ‘minor’ and inclusion on the Preclusion List is not warranted in this case.”  P. Br. at 18-19.  Petitioner may view reckless homicide as a minor offense based on its classification as a Class E felony in South Carolina, but a review of the South Carolina code reveals that Class E felonies, which are punishable by up to 10 years of imprisonment, are not minor offenses, as evidenced by the following list of similarly classified felonies against persons:

Page 13

First degree assault and battery (§ 16-3-600(C))
	First degree sexual misconduct (§ 44-23-1150(C)(1))
	Spousal sexual battery (§ 16-3-615)
	Domestic violence in the first degree (§ 16-25-20(B))
	Assaulting police officer serving process or while resisting arrest (§ 16‐9‐320(B))
	Resisting arrest with deadly weapon (§ 16-3-625)
	Intimidation of court officials, jurors, or witnesses (§ 16-9-340)*See*S.C. Code Ann. § 16-1-90(E); *see also*S.C. Code Ann. § 16-1-20(A).  Petitioner’s offense of reckless homicide is on par with several significant crimes against persons, and CMS correctly determined it is not a “minor” offense.  *See*CMS Ex. 1 at 4 (“CMS is appalled that [Petitioner] would consider behavior that resulted in the loss of life ‘minor’ and we seriously disagree with this contention.”).

Petitioner also presents the unsupported claim that his guilty plea “was to an offense that was primarily based on a medical condition and was not an intentional act.”  P. Br. at 19.  As previously explained, the evidence reflects that Petitioner has little-to-no recall of the accident and has not submitted medical evidence establishing that a seizure or neurological event caused the accident.  But, accepting this unsupported claim as true for purposes of this discussion, Petitioner made the decision to operate a motor vehicle within days of experiencing a significant amnesic episode and a subsequent episode of “amnesia and mumbling.”  P. Ex. 2 at 2.  And notably, Petitioner pleaded guilty to killing another person by operating a motor vehicle with reckless disregard for the safety of others.  CMS Ex. 6; *see*S.C. Ann. Code § 56-05-2910.  CMS correctly determined that “the severity of the offense and the fact that it implicates [Petitioner’s] good judgment and involves a reckless disregard for the safety of others are indications that his placement on the CMS Preclusion List is appropriate.”  CMS Ex. 1 at 5.

Petitioner also argues that the passage of eight years since his criminal offense “should be deemed more than enough” time, as contemplated by 42 C.F.R. §§ 422.2, 423.100 (addressing consideration of “when” the offense occurred).  P. Br. at 19-20.  However, it does not appear that the mere passage of time, in and of itself, had a beneficial impact on Petitioner’s regard for the safety of others, as evidenced by the fact that years after he struck and killed a pedestrian with his vehicle, he was convicted of a DUI offense in another state.  CMS Ex. 5 at 71.  Further, Petitioner was not licensed to practice medicine for approximately half of the aforementioned eight-year period.  CMS Ex. 7 at 1, 8-9.  Specifically, with the exception of an approximately nine-month period between November 2015 and September 2016, the Medical Board did not conditionally reinstate Petitioner’s medical license until December 29, 2017, nearly five years after the January 6, 2013 accident.  CMS Ex. 7 at 5, 8-9.  Finally, CMS determined that Petitioner’s claim that he committed a “minor” felony offense “solidifies . . . and makes clear that the

Page 14

passage of time has not improved his judgment or his regard for the safety of others.”  CMS Ex. 1 at 5.  The passage of eight years since the fatal accident, in and of itself, does not weigh against Petitioner’s placement on the Preclusion List.

Finally, Petitioner argues that CMS abused its discretion by placing him on the Preclusion List.  The criteria set forth in 42 C.F.R. §§ 422.2 and 423.100 are undoubtedly met; not only did CMS correctly consider the relevant regulatory factors, but it correctly determined these factors were met.  Petitioner was convicted of a significant felony crime against a person, as contemplated by 42 C.F.R. § 424.535(a)(3), within the preceding 10 years, that warrants his placement on the Preclusion List pursuant to 42 C.F.R. §§ 422.2, 423.100.

V.  Conclusion

I affirm the denial of Petitioner’s Medicare enrollment application and his placement on CMS’s Preclusion List.


          /s/
        Leslie C. Rogall

                      Administrative Law Judge
      1. The provisions of S.C. Code Ann. § 40-47-110(B)(2), (4) specifically address misconduct that constitutes grounds for disciplinary action. back to note 1
                      2. Petitioner had previously been enrolled in the Medicare program until June 30, 2013, at which time his enrollment was revoked pursuant to 42 C.F.R. § 424.535(a)(1), (12).  CMS Ex. 13 at 1. back to note 2
                      3. A conviction for “DUI less safe” is a DUI conviction; Petitioner pleaded guilty to a violation of Ga. Code Ann. § 40-6-391(a)(1), which encompasses driving or being in actual physical control of any moving vehicle while “under the influence of alcohol to the extent that it is less safe for the person to drive.”  A first offense is a misdemeanor offense subject to a maximum term of 12 months of imprisonment.  Ga. Code Ann. § 40‐6‐391(c)(1)(B).  Petitioner’s sentence included 24 hours of incarceration.  CMS Ex. 5 at 71. back to note 3
                      4. Petitioner submitted an unredacted copy of the same consultation report as P. Ex. 2 at 1-3.  CMS has not objected to its admission into the evidentiary record.  See 42 C.F.R. § 498.56(e). back to note 4
                      5. My findings of fact and conclusions of law are in bold and italics. back to note 5
                      6. It appears that CMS tailored a case-specific approach based on the addition of the new issue of Petitioner’s placement on the Preclusion List. back to note 6
                      7. Although Dr. Shih found it noteworthy that Petitioner was taking these four medications at the time of the accident, he did not address the potential individual or collective impact of these medications, despite the labeling for these medications.  See Drugs@FDA:  FDA-Approved Drugs, https://www.accessdata.fda.gov/scripts/cder/daf/ (last visited March 22, 2021) (Wellbutrin: “Advise patients that any CNS-active drug like WELLBUTRIN may impair their ability to perform tasks requiring judgment or motor and cognitive skills.”; Remeron: “May impair judgment, thinking, and/or motor skills.  Use with caution when engaging in activities requiring alertness, such as driving or operating machinery.”; Trazodone: “[M]ay cause somnolence or sedation and may impair the mental and/or physical ability required for the performance of potentially hazardous tasks.  Patients should be cautioned about operating hazardous machinery, including automobiles until they are reasonably certain that the drug treatment does not affect them.”; Neurontin: “Driving Impairment:  Somnolence/Sedation and Dizziness: Warn patients not to drive until they have gained sufficient experience to assess whether their ability to drive or operate heavy machinery will be impaired.”). back to note 7 Back to top
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