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                              Chikezie Onyenso, MD, and Total Support Medical Group, DAB CR6194 (2022)
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Chikezie Onyenso, MD, and Total Support Medical Group, DAB CR6194 (2022)








  
  
    

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





Chikezie Onyenso, M.D., and Total Support Medical Group
(NPI: 1578605812, 1467510776)
Petitioners,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-22-739Decision No. CR6194November 22, 2022

        
              
    

      DECISION

The Centers for Medicare & Medicaid Services (CMS) upheld the denial of February 3, 2022 enrollment applications submitted by Petitioners, Chikezie Onyenso, MD (Dr. Onyenso) and his practice, Total Support Medical Group (the practice).  Dr. Onyenso was convicted of felony offenses relating to a conspiracy to solicit and receive kickbacks and the receipt of illegal remunerations in the form of kickbacks within the preceding 10 years, and he was also the subject of a mandatory exclusion imposed by the Inspector General (IG) based on the same felony convictions.  CMS correctly determined that Dr. Onyenso’s felony convictions are *per se* detrimental to the Medicare program and its beneficiaries, and it had a legitimate basis to deny Petitioners’ enrollment applications pursuant to 42 C.F.R. § 424.530(a)(3)(i)(D).1

Page 2

I.  Background and Procedural History

Dr. Onyenso is a physician who practices in New Jersey.  CMS Ex. 1 at 1.  Dr. Onyenso is the sole owner and manager of the practice.  CMS Exs. 1 at 2; 2 at 5.

A February 20, 2013 superseding indictment charged that Dr. Onyenso, who at that time had a medical practice, had engaged in a conspiracy with Orange Community MRI, LLC (“OCM”), a provider of diagnostic testing services, to include “MRIs,” “CAT Scans,” and “Ultrasounds,” to receive kickbacks in the form of “lease” and cash payments in exchange for patient referrals.2   CMS Ex. 14 at 45 (Count One).  Count Two of the superseding indictment charged that Dr. Onyenso received “a kickback consisting of two envelopes containing a total of approximately $1,280 cash, from OCM in return for referring patients to OCM, for the furnishing and arranging for the furnishing of items and services for which payment may be made in whole or in part under a Federal health care program, namely, Medicare and Medicaid.”  CMS Ex. 14 at 49.

On October 15, 2013, a jury returned a verdict finding Dr. Onyenso guilty of “Conspiracy to Violate the Federal Healthcare Anti-Kickback Statute” (Count One) and “solicitation or receipt of illegal remuneration in violation of the Federal Healthcare Anti-Kickback Statute” (Count Two).3   CMS Ex. 5 at 1.

On June 18, 2014, a federal district judge imposed sentence and judgment.  CMS Ex. 8 at 1.  The judgment reported that Dr. Onyenso “was found guilty on count(s) 1s and 2s by a jury verdict on October 15, 2013 after a plea of not guilty,” and “[a]ccordingly, the court has adjudicated that the defendant is guilty.”  CMS Ex. 8 at 1.  The sentence included a 20-month term of incarceration for each of the two counts, to be served concurrently.  CMS Ex. 8 at 2.  Additionally, the district judge imposed a two-year term of supervised release, a $20,000 fine for each count, and forfeiture of $42,176.29 in U.S. currency.

Page 3

CMS Ex. 8 at 3, 6, 7.  On June 20, 2018, the district judge granted Dr. Onyenso’s request for early termination of his supervised release.  CMS Ex. 14 at 31.

Dr. Onyenso’s felony convictions led to several adverse administrative actions, to include his exclusion by the IG effective February 19, 2015, for a minimum period of five years.  CMS Ex. 9.  Dr. Onyenso was also the subject of disciplinary action against his medical license4  and was terminated from New Jersey’s Medicaid program.  CMS Exs. 10 at 8-9; 12.

Consistent with the minimum period of mandatory exclusion, the IG reinstated Dr. Onyenso on May 7, 2020.  CMS Ex. 11.  The State of New Jersey, on May 6, 2021, informed Dr. Onyenso, through his then-attorney, that he had been “reinstated to participate in the programs administered in whole or part by the Division of Medical Assistance and Health Services.”  CMS Ex. 14 at 40.  The New Jersey Board of Medical Examiners reinstated Dr. Onyenso’s license effective May 2, 2021.  CMS Ex. 14 at 34.

On February 3, 2022, Dr. Onyenso electronically submitted a Form CMS-855I application to enroll in the Medicare program as the sole owner of his practice.  CMS Ex. 1 at 1-2.  In a separate Form CMS-855S application electronically submitted that same day, Dr. Onyenso sought to enroll his practice in the Medicare program.  CMS Ex. 2.  Both applications reported that Dr. Onyenso had a felony conviction within the preceding 10 years.  CMS Exs. 1 at 6; 2 at 6.
On February 17, 2022, Novitas Solutions (Novitas), a Medicare administrative contractor, denied Petitioners’ enrollment applications pursuant to 42 C.F.R. § 424.530(a)(3).5   CMS Ex. 3 at 1.  Novitas reported that CMS “has been made aware of [Dr. Onyenso’s] . . . felony conviction, as defined in 42 C.F.R. § 1001.2, for Conspiracy in violation of 18 U.S. Code § 371 and Illegal Remunerations in violation of 42 U.S. Code § 1320a-7b(b)(1)(A) in the United States District Court, District of New Jersey (Newark).”  CMS Ex. 3 at 1.  Novitas stated that “[a]fter reviewing the specific facts and circumstances surrounding [Dr. Onyenso’s] felony conviction, CMS has determined that [his] felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries.”  CMS Ex. 3 at 1.  Novitas also placed Petitioners “on the CMS Preclusion List because [Dr. Onyenso] ha[s] been convicted of a felony . . . within the previous 10

Page 4

years [] that CMS deems detrimental to the best interests of the Medicare program.”  CMS Ex. 3 at 1.

Petitioners, through their current counsel, submitted a request for reconsideration dated April 16, 2022.  Dr. Onyenso argued that a denial of enrollment “is not mandatory” and that 42 C.F.R. § 424.530(a)(3) “does not mandate a denial.”  CMS Ex. 13 at 2.  Dr. Onyenso reported that he had been reinstated by the IG and the New Jersey Medicaid program, was “granted . . . early discharge from supervised release,” and has an unrestricted DEA number, current board certification, and active medical license.  CMS Ex. 13 at 1-2.  Dr. Onyenso argued that he “seeks enrollment more than 8 years after his conviction,” and that his criminal offense should not be considered detrimental to the best interests of the Medicare program.  CMS Ex. 13 at 2-3.  Dr. Onyenso claimed that Novitas did not conduct a “case-by-case determination,” yet acknowledged that “[i]t is possible that the initial determination meets the basic requirements in the regulations.”  CMS Ex. 13 at 3.

In separate reconsidered determinations issued on June 22, 2022, CMS’s Provider Enrollment & Oversight Group upheld both initial determinations, with two exceptions.  First, CMS determined that the practice should not have been placed on its Preclusion List because the practice is not an individual prescriber.  CMS Ex. 14 at 1, 6.6  CMS also determined that “[t]he initial determination letter incorrectly refers to Dr. Onyenso’s date of conviction as October 15, 2013,” but that “[u]nder 42 C.F.R. § 1001.2, the correct date that Dr. Onyenso was convicted of a felony is June 18, 2014.”  CMS Exs. 14 at 3 (reconsidered determination for the practice); 15 at 19 (reconsidered determination for Dr. Onyenso).  With respect to both petitioners, CMS determined “[o]n October 15, 2013, a jury found Dr. Onyenso guilty of Conspiracy and Illegal Remunerations,” and that “on June 18, 2014, the Court accepted the jury’s verdict and adjudged Dr. Onyenso guilty.”  CMS Exs. 14 at 3; 15 at 19.  CMS determined that, “in accordance with 42 C.F.R. § 1001.2,” Dr. Onyenso had been convicted of the felony offenses of Conspiracy and Illegal Remunerations “on June 18, 2014.”  CMS Exs. 14 at 3; 15 at 19.

Addressing arguments that Dr. Onyenso’s felony convictions were not detrimental to the best interests of the Medicare program and its beneficiaries, CMS explained:

CMS must also determine whether Dr. Onyenso’s felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries. Through public notice-and-

Page 5

comment rulemaking, CMS has determined that certain felony offenses are *per se*detrimental to the best interests of the Medicare program and its beneficiaries.  As enumerated under § 424.530(a)(3)(i)(D), these offenses include, but are not limited in scope or severity, to any felony that would result in mandatory exclusion under § 1128(a) of the Act.  Here, Dr. Onyenso, [the practice’s] reported sole owner and managing employee, was convicted of a felony offense identified in § 1128(a)(1) of the Act and was subsequently excluded under the same section of the Act . . . . This section requires the mandatory exclusion of individuals or entities convicted of program related crimes.  Although the OIG reinstated Dr. Onyenso’s eligibility to participate in the Medicare program, it does not negate his conviction of the felony offenses of Conspiracy and Illegal Remunerations within the preceding 10 years and is [the practice’s] reported sole owner and managing employee.  As a result, CMS finds it is within our authority to deny [the practice’s] Medicare enrollment application because Dr. Onyenso’s convictions of Conspiracy and Illegal Remunerations are *per se*detrimental to the Medicare program and its beneficiaries, pursuant to § 424.530(a)(3)(i)(D).

CMS Ex. 14 at 5 (addressing the denial of the practice’s enrollment application); *see*CMS Ex. 15 at 20-21 (similar discussion addressing the denial of Dr. Onyenso’s enrollment application).  CMS also upheld Dr. Onyenso’s placement on its Preclusion List.  CMS Ex. 15 at 22-23.

Petitioners requested an administrative law judge (ALJ) hearing on August 18, 2022.  Consistent with my Pre-Hearing Order, CMS filed a combined brief and motion for summary judgment, along with 18 proposed exhibits (CMS Exs. 1-18).  Petitioners submitted a pre-hearing brief in opposition to CMS’s motion for summary judgment (P. Br.) and four exhibits (P. Exs. 1-4).  Thereafter, CMS filed a reply.  In the absence of any objections, I admit CMS Exs. 1-18 and P. Exs. 1-47  into the evidentiary record.

Page 6

Neither party has submitted any sworn written direct testimony, as contemplated by section 12 of the Pre-Hearing Order.8  Therefore, a hearing is unnecessary for the purpose of cross-examination of any witnesses.9   Pre-Hearing Order §§ 12-14.  The record is closed, and I issue this decision on the merits.

Page 7

II.  Issue

Whether CMS had a legitimate basis to uphold the denial of Petitioners’  Medicare enrollment applications pursuant to 42 C.F.R. § 424.530(a)(3) based on Dr. Onyenso’s felony convictions for conspiracy to solicit and receive kickbacks and receipt of illegal remunerations.

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and Analysis10

As a physician, Dr. Onyenso 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 or severity to—

*  *  *

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

Page 8

42 C.F.R. § 424.530(a)(3)(i)(D);*see*42 U.S.C. § 1395u(h)(8) (authorizing the Secretary to deny enrollment when a prospective supplier has been convicted of a felony offense that the Secretary has determined is detrimental to the best interests of the Medicare program or its beneficiaries).

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

***Dr. Onyenso is listed as the sole owner and managing employee of the practice on separate enrollment applications submitted on February 3, 2022.***
	***On October 15, 2013, a jury found Dr. Onyenso guilty of the offenses of conspiracy to solicit and receive kickbacks, in violation of 18 U.S.C. § 371, and the receipt of illegal remunerations, in violation of 42 U.S.C. § 1320a-7b(b)(1)(A).***
	***On June 18, 2014, a federal district judge “adjudicated that [Dr. Onyenso] is guilty” of the offenses of conspiracy to solicit and receive kickbacks and receipt of illegal remunerations and imposed a sentence that included 20 months of incarceration.***
	***Petitioners do not dispute that Dr. Onyenso was convicted of felony offenses for purposes of Medicare enrollment.***Page 9

***Although Petitioners argue that, for purposes of 42 C.F.R. § 1001.2, the date of Dr. Onyenso’s conviction is October 15, 2013, Petitioners concede that Dr. Onyenso’s felony convictions were within the preceding 10 years.***
	***Petitioners do not dispute that the IG imposed a mandatory exclusion pursuant to section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), based on Dr. Onyenso’s felony convictions.***
	***Pursuant to 42 C.F.R. § 424.530(a)(3)(i)(D), a felony offense that would result in mandatory exclusion is per se detrimental to the best interests of the Medicare program and its beneficiaries.***
	***Pursuant to 42 C.F.R. § 424.530(a)(3)(i)(D), CMS determined that Dr. Onyenso’s felony convictions within the preceding 10 years that resulted in the imposition of a mandatory exclusion by the IG were per se detrimental to the best interests of the Medicare program and its beneficiaries.***
	***CMS had a legitimate basis to uphold the denial of Petitioners’ enrollment applications pursuant to 42 C.F.R. § 424.530(a)(3)(i)(D) because Dr. Onyenso’s felony convictions within the preceding 10 years are per se detrimental to the best interests of the Medicare program and its beneficiaries.***Petitioners do not dispute that Dr. Onyenso, a physician and owner and manager of the practice, was convicted of felony offenses within the preceding 10 years and those offenses were the basis for the IG’s imposition of a mandatory exclusion pursuant to section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1).11   CMS Exs. 1-2 (enrollment applications submitted on February 3, 2022); 8 (judgment of conviction, dated June 18, 2014); 9 (IG’s imposition of a mandatory exclusion); *see*P. Br.12  (arguing that Dr. Onyenso was convicted when the jury issued its verdict on October 15, 2013); CMS Ex. 5 (guilty verdict dated October 15, 2013).  Because the IG imposed a mandatory exclusion based on Dr. Onyenso’s felony convictions, his offenses, pursuant to 42 C.F.R. § 424.535(a)(3)(i)(D), are *per se*detrimental to the Medicare program and its beneficiaries.  Novitas determined that Dr. Onyenso’s felony convictions warranted denial of Petitioners’ Medicare enrollment applications because the felony offenses are detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 3.  CMS upheld these determinations.  CMS Exs. 3 at 1; 14 at 5 (reconsidered

Page 10

determination determining that Dr. Onyenso “was convicted of a felony offense identified in § 1128(a)(1) of the Act and was subsequently excluded under the same section of the Act,” and that “it is within [CMS’s] authority to deny [the practice’s] Medicare enrollment application because Dr. Onyenso’s convictions . . . are *per se*detrimental to the Medicare program and its beneficiaries, pursuant to § 424.530(a)(3)(i)(D).”); 15 at 21 (reconsidered determination upholding the denial of Dr. Onyenso’s enrollment application for the same reason).

CMS considered Petitioners’ claims that Dr. Onyenso “is a person of integrity” and that other entities have reinstated his medical privileges, and also considered character evidence submitted on his behalf.13   CMS Exs. 14 at 6; 15 at 22.  CMS also considered Petitioners’ argument that its authority to deny enrollment is “discretionary and not mandatory.”  CMS Exs. 14 at 6; 15 at 22.  However, CMS explained that, even considering this evidence and argument, it “chooses to exercise our discretionary authority to deny [the practice’s] Medicare enrollment, because . . . [the practice’s] reported sole owner and managing employee [ ] was convicted of felony offenses that CMS deems to be *per se*detrimental to the best interests of the Medicare program and its beneficiaries.”  CMS Ex. 14 at 6 (emphasis in original); *see*CMS Ex. 15 at 22 (providing a nearly identical discussion).  Because Dr. Onyenso’s felony convictions are *per se* detrimental to the Medicare program, the regulatory criteria for denial of enrollment is met without any need for CMS to take into account the essentially equitable factors raised by Petitioners.  *See*42 C.F.R. § 424.530(a)(3)(i)(D).  Therefore, Petitioners’ claim that “CMS was required to make a case specific analysis in rendering a decision that [its] provider application should be denied” is legally erroneous.  P. Br.; *see, e.g., Stephen White,* DAB No. 2912 at 17 (“CMS was not required to prove that [the petitioner’s] felony was one that placed the Medicare program or its beneficiaries at immediate risk.  The regulation provides that various types of felony convictions have been categorically determined to warrant denial of a provider’s or supplier’s Medicare enrollment application.”).

Page 11

Petitioners argue that CMS erred in the date it determined Dr. Onyenso had been convicted pursuant to 42 C.F.R. § 1001.2, arguing that the correct date of conviction is the date the jury made a finding of guilt on October 15, 2013, rather than the date the district judge explicitly adjudicated his guilt on June 18, 2014.  P. Br; *see*CMS Exs. 5 at 1; 8 at 1.  This argument is irrelevant.  The question before me is whether CMS had a legitimate basis to uphold the denial of Petitioners’ enrollment applications based on Dr. Onyenso’s conviction *within the preceding 10 years*.  42 C.F.R. § 424.530(a)(3)(i)(D).  Inasmuch as Petitioners concede that Dr. Onyenso was convicted of felony offenses within the preceding 10 years, and do not dispute that these felony convictions resulted in a mandatory exclusion, it is immaterial whether he was convicted on October 15, 2013, or June 18, 2014.14   P. Br. (“Petitioner states that the date of conviction is October 15, 2013.”); *see Dr. Robert Kanowitz*, DAB No. 2942at 6 (2019) (“We also note that the language of section 424.530(a)(3) affords CMS discretion to grant enrollment earlier than 10 years after the applicant’s conviction but, as the [DAB] has observed, our (and the ALJ’s) role in enrollment appeals is limited to determining whether CMS’s denial . . . of enrollment was authorized by law.”).  The undisputed evidence indicates that Dr. Onyenso was convicted of felony offenses in the preceding 10 years, and therefore, CMS had a legitimate basis to deny Petitioners’ enrollment applications pursuant to 42 C.F.R. § 424.530(a)(3)(i)(D).

V.  Conclusion

For the foregoing reasons, I affirm the denial of Petitioners’ February 3, 2022 Medicare enrollment applications.



Endnotes

1  Petitioners’ request for hearing does not challenge Dr. Onyenso’s placement on CMS’s Preclusion List pursuant to 42 C.F.R. §§ 422.2, 423.100.  Therefore, this determination is administratively final.  Although CMS addressed this issue in its briefing, Petitioners’ brief does not dispute Dr. Onyenso’s placement on the Preclusion List.

2  CMS submitted, as CMS Ex. 4, a copy of a criminal complaint filed with a federal magistrate judge in which the United States charged a *single*offense.  CMS referred to the complaint as an “Information” in its brief.  CMS Br. at 9.  A criminal complaint is not an information, and the criminal case docket reflects that Dr. Onyenso was *not*charged by information.  CMS Ex. 6 (criminal case docket).  The record reflects that Dr. Onyenso was charged by a federal grand jury indictment and superseding indictment.   CMS Exs. 6 at 4-5 (criminal case docket referencing both an indictment and superseding indictment); 14 at 42-53 (superseding indictment); *see*U.S. Const. amend. V (“No person shall be held to answer for a[n] . . . otherwise infamous crime, unless on a presentment or indictment of a grand jury.”).

3  The jury acquitted Dr. Onyenso of a third count charged in the superseding indictment.  CMS Ex. 5 at 2; *see*CMS Ex. 14 at 50.

4  The record reflects that Dr. Onyenso’s medical license was reinstated on May 2, 2021, but does not reflect the particular adverse action taken by the medical licensing authority.  CMS Ex. 14 at 40.

5  [T]he enrollment applications of both Dr. Onyenso and [the practice] were submitted simultaneously and denied via the same denial letter.”  CMS Reply at 2 n.1.

6  CMS only filed a copy of the reconsidered determination pertaining to the practice.  CMS Ex. 14 (described in Exhibit List as “Reconsideration Decision with Exhibits 6.22.22”).  However, Petitioners’ request for hearing, which CMS submitted as an evidentiary exhibit, challenges both determinations.  *See*CMS Ex. 15 at 7-26.

7  In contravention of the Pre-Hearing Order, Petitioners submitted numerous duplicative exhibits.  *Compare*P. Exs. 2-4 *with*CMS Ex. 14; *see*Pre-Hearing Order § 8 (“Petitioner should not file as a proposed exhibit any document that CMS has already filed among its proposed exhibits.”).  CMS did not object to Petitioners’ submissions.

8  Petitioners, without a supporting explanation, requested “oral argument.”  P. Br. at 1.  There is no provision for oral argument in 42 C.F.R. part 498, the Civil Remedies Division Procedures, or my Pre-Hearing Order.  Petitioners have had an opportunity to file a written brief and response to CMS’s motion for summary judgment and have offered no reason why oral argument is necessary or permitted.  Likewise, to the extent Petitioners request a hearing, there is no need for a hearing to cross-examine any witnesses.  Pre-Hearing Order § 14 (“An in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine the witness(es).”).

9  Petitioners listed five witnesses, none of whom provided sworn written direct testimony as required by the Pre-Hearing Order.  Petitioners listed the federal prosecutor as a witness, and explained that the prosecutor would testify about his statement in a sentencing memorandum that a jury “convicted” Dr. Onyenso on October 15, 2013.  *See*P. Ex. 1 at 2.  Petitioners concede that Dr. Onyenso was convicted of felony offenses within the preceding 10 years, and the disputed date of the conviction, whether it be October 15, 2013, or June 18, 2014, is squarely within the 10 years preceding Petitioners’ submission of their enrollment applications on February 3, 2022.  Therefore, a hearing for testimony regarding whether the conviction was effective October 15, 2013, or June 18, 2014, would not develop relevant and material facts necessary for the determination addressing whether CMS had a legitimate basis to uphold the denial of Petitioners’ enrollment applications.  Further, even if the prosecutor opined that the date of conviction, for purposes of a sentencing memorandum, was October 15, 2013, such an opinion would not be dispositive of whether, under the definition outlined at 42 C.F.R. § 1001.2, Dr. Onyenso was convicted of a felony offense on that date.  Inasmuch as Petitioners indicated they intend to request (but did not request) a subpoena to compel this witness’s testimony, they have not established that the witness would establish relevant and material facts that could not be established without use of a subpoena.  42 C.F.R. § 498.58.  To the extent Petitioners listed four other witnesses, to include Dr. Onyenso, the expected testimony largely addresses character evidence, the reinstatement of Dr. Onyenso by various entities, and Dr. Onyenso’s proposal to “address the concerns expressed by CMS.”  This potential testimony, even had it been the subject of properly submitted sworn and written testimony, would not yield relevant and material evidence warranting a hearing for cross-examination. *See*Pre-Hearing Order § 12 (“If a party seeks to present witness testimony, it must submit as a proposed exhibit with its pre-hearing exchange the complete, written direct testimony of any proposed witness.”); P. Ex. 4 (unsworn character reference letters submitted by Charles C. Chikezie, Esq., Mehul N. Shah, MD; and Abigail Epane-Osuala).

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

11  A search of DAB E-File indicates that Dr. Onyenso did not appeal his exclusion.

12  Petitioners did not submit a paginated brief, and therefore, I do not provide pinpoint citations.  *See*Pre-Hearing Order § 8 (“Briefs must be paginated.”).

13  Without citation to any evidence that had been submitted prior to CMS’s issuance of the reconsidered determinations, Petitioners state:  “[A]though not addressed by CMS, Dr. Onyenso has proposed significant and substantial measures that address the concerns expressed by CMS.”  P. Br.; Petitioners’ Witness List (describing expected testimony of Dr. Onyenso); *see*CMS Exs. 13 (reconsideration request); 14 (evidence filed at the time of issuance of the reconsidered determinations).  Although Petitioners claim CMS did not address the “significant and substantial measures,” the record does not indicate that Petitioners proposed these measures prior to the issuance of the reconsidered determinations.  Regardless, such proposed measures are irrelevant to the question of whether CMS had a legitimate basis to deny Petitioners’ enrollment applications.

14  Although I need not reach this issue because Petitioners have conceded that Dr. Onyenso had felony convictions within the preceding 10 years, I note that the analysis I employed in *HPC*, which is relied upon by CMS in its brief, is applicable to the instant circumstances and yields a date of conviction, as defined by 42 C.F.R. § 1001.2, of June 18, 2014.  CMS Br. at 16-17; *see HPC, LLC*, DAB CR6056 at 16 (2022) (addressing that CMS had not made a showing that “a jury finding of guilt is the equivalent of a court finding of guilt,” and that “the date of [the petitioner’s] convictions is the date the court entered judgment of conviction.”).
  
          /s/
        Leslie C. Rogall

                      Administrative Law Judge Back to top
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