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                              Leonor Ordonez, M.D., DAB CR5556 (2020)
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Leonor Ordonez, M.D., DAB CR5556 (2020)








  
  
    

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





Leonor Ordonez, M.D.,
	(NPI: 1992837629),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-18-676Decision No. CR5556March 12, 2020

        
              
    

      DECISION
The Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor, Noridian Healthcare Solutions (Noridian), revoked the Medicare enrollment and billing privileges of Leonor Ordonez, M.D. (Petitioner or Dr. Ordonez) pursuant to 42 C.F.R. § 424.535(a)(3), (a)(9), and (a)(13). CMS took this action because, within the preceding 10 years, Dr. Ordonez was convicted of a felony offense that CMS determined was detrimental to the best interests of the Medicare program and its beneficiaries; she failed to report that felony conviction to Noridian, contrary to the reporting requirement found at 42 C.F.R. § 424.516(d)(1)(ii); and she was ordered to surrender her Drug Enforcement Administration (DEA) certificate to prescribe controlled substances.
Dr. Ordonez disputes that she was convicted of a felony, but otherwise she does not dispute that CMS had the authority to revoke her Medicare enrollment and billing privileges. Instead, she argues that CMS arbitrarily and capriciously abused its discretion in revoking her billing privileges.
For the reasons discussed below, I reject Petitioner's arguments and conclude that CMS had a basis to revoke her Medicare enrollment and billing privileges. Accordingly, I affirm the revocation.
Page 2
I. Background
Petitioner is a physician who resides in California and was enrolled as a supplier of Medicare services. CMS Exhibit (Ex.) 3 at 19, 53. On December 14, 2015, Petitioner was convicted, pursuant to a guilty plea, of violating California (Cal.) Penal Code § 550(b)(1) (insurance – presenting false information supporting claim) and Cal. Health & Safety Code § 11173(a) (obtaining prescription by fraud/deceit). CMS Ex. 1 at 37, CMS Ex. 2 at 2. The California Superior Court, County of San Diego (state court), sentenced Petitioner to three years' probation with conditions. CMS Ex. 1 at 37, CMS Ex. 2 at 2.
By letter dated August 14, 2017, Noridian notified Petitioner that it was revoking her Medicare enrollment and billing privileges effective December 14, 2015, under 42 C.F.R. § 424.535(a)(3) (felony conviction), (a)(9) (failure to report), and (a)(13) (DEA certificate/state prescribing authority suspension/revocation). CMS Ex. 3 at 53. Noridian also imposed a three‐year re‐enrollment bar. *Id.* at 54.
In a letter dated October 13, 2017, Petitioner requested reconsideration. CMS Ex. 3 at 1‐6. By letter dated January 17, 2018, CMS, through its Provider Enrollment & Oversight Group,1
 issued an unfavorable reconsidered determination. CMS Ex. 4. In it, CMS upheld the revocation on all three grounds given by Noridian. *Id.* at 9.
Petitioner requested a hearing, and the case was assigned to me. I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) dated March 28, 2018, in which I directed each party to file a pre-hearing exchange consisting of a brief and any supporting documents and also set deadlines for those filings. Pre-Hearing Order ¶¶ 4-5. In response to the Pre-Hearing Order, CMS filed a pre-hearing brief with incorporated motion for summary judgment (CMS Br.) and four proposed exhibits (CMS Exs. 1-4). Petitioner did not object to the admission of CMS's proposed exhibits. Therefore, in the absence of objection, I admit CMS Exs. 1-4 into the record.
Petitioner filed a brief with incorporated opposition to CMS's motion for summary judgment (P. Br.) and six proposed exhibits (P. Exs. 1-6). Petitioner identified her proposed exhibits as new evidence. P. Br. at 14-15. Pursuant to 42 C.F.R. § 498.56(e), an administrative law judge must examine "any new documentary evidence submitted to the [administrative law judge] by a provider or supplier to determine whether the provider or supplier has good cause for submitting the evidence for the first time at the [administrative law judge] level." If the administrative law judge does not find good cause for the failure to submit the evidence earlier, the evidence must be
Page 3
excluded and may not be considered in reaching a decision. 42 C.F.R. § 498.56(e)(2)(ii). Petitioner argues that she has good cause for submitting the new evidence. P. Br. at 14‐15. CMS did not argue that Petitioner failed to show good cause for admitting the exhibits. Further, my examination of the evidence convinces me that, while P. Exs. 1-6 are not identical to the evidence submitted at reconsideration, they are substantially similar. I therefore find good cause to admit P. Exs. 1-6.
My Pre‐Hearing Order advised the parties that they must submit written direct testimony for any proposed witness and that an in-person hearing would only be necessary if the opposing party requested an opportunity to cross-examine a witness. Pre‐Hearing Order ¶¶ 8-10; Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b); *Pacific Regency Arvin*, DAB No. 1823 at 7-8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross‐examine those witnesses). Neither party offered the written direct testimony of any witness.2
 Consequently, an in-person hearing is not required, and I issue this decision based on the written record, without regard to whether the standards for summary judgment are met. Pre‐Hearing Order ¶¶ 8-11; CRDP § 19(d). I deny CMS's motion for summary judgment as moot.
II. Issue
The issue in this case is whether CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges.
III. Jurisdiction
I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(17), 498.5(*l*)(2); *see also* Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).
IV. Discussion
**A. Statutory and Regulatory Framework**
As a physician, Petitioner is a supplier of health care services for purposes of the Medicare program. *See* Act § 1861(d) (42 U.S.C. § 1395x(d)); 42 C.F.R. §§ 400.202 (definition of supplier), 410.20. In order to participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges.
Page 4
42 C.F.R §§ 424.505, 424.510. CMS may revoke the enrollment and billing privileges of a supplier for any reason stated in 42 C.F.R. § 424.535. When CMS revokes a supplier's Medicare billing privileges, CMS establishes a re‐enrollment bar for a period ranging from one to three years. 42 C.F.R. § 424.535(c).3
 Generally, a revocation becomes effective 30 days after CMS mails the initial determination revoking Medicare billing privileges, but if the revocation is based on a felony conviction, the revocation is effective with the date of the conviction. 42 C.F.R. § 424.535(g).
**B. Findings of Fact, Conclusions of Law, and Analysis**
***1. CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) because, within the 10 years prior to revocation, Petitioner was convicted of a felony offense that would result in mandatory exclusion under section 1128(a) of the Act.*4**
CMS may revoke a supplier's enrollment in the Medicare program if, within the preceding 10 years, the supplier was convicted of a felony offense that CMS "has determined to be detrimental to the best interests of the Medicare program and its beneficiaries." 42 C.F.R. § 424.535(a)(3)(i); *see also* Act § 1842(h)(8) (42 U.S.C. § 1395u(h)(8)) (authorizing the Secretary of Health and Human Services (Secretary) to deny or terminate enrollment after ascertaining that a supplier has been convicted of a felony offense the Secretary has determined is "detrimental to the best interests of the program or program beneficiaries"). Offenses for which billing privileges may be revoked include—but are not limited to—felony crimes against persons such as murder, rape, assault, and similar crimes; financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and similar crimes; felonies that place the Medicare program or its beneficiaries at immediate risk such as convictions for criminal neglect or misconduct; and felonies that would result in mandatory exclusion under section 1128(a) of the Act. 42 C.F.R. § 424.535(a)(3)(ii)(A)-(D).
Page 5
***a. Petitioner was convicted of a felony offense within the 10 years prior to revocation.***
Section 424.535(a)(3) defines a conviction for which enrollment may be revoked by cross‐referencing the definition at 42 C.F.R. § 1001.2. In turn, section 1001.2 provides:
*Convicted* means that—
(a) A judgment of conviction has been entered against an individual or entity by a Federal, State or local court, regardless of whether:
(1) There is a post-trial motion or an appeal pending, or
	(2) The judgment of conviction or other record relating to the criminal conduct has been expunged or otherwise removed;
(b) A Federal, State or local court has made a finding of guilt against an individual or entity;
	(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.
In a complaint filed with the Medical Board of California (Medical Board) on December 23, 2016, the Executive Director of the Medical Board alleged, in pertinent part, the following:
Q. On or about September 21, 2015, in the Superior Court of California, County of San Diego . . . , the San Diego County District Attorney's Office charged [Petitioner] with twenty (20) Felony counts, consisting of six (6) counts of Penal Code section 550(a)(5) [Insurance – Make Writing for False Claim], six (6) counts of Penal Code section 550(b)(1) [Insurance – Presenting False Information Supporting Claim], seven (7) counts of Health and Safety Code section 11173(a) [Obtaining Prescription by Fraud/Deceit], and one (1) count of Health and Safety Code section 11368 [Obtaining a Narcotic by a Forged Prescription].
* * * *
U. On or about December 14, 2015, in the Superior Court of California, County of San Diego . . . , [Petitioner] pled [g]uilty and was convicted of counts two and eighteen,
Page 6
violating Penal Code [s]ection 550, subdivision (b), subdivision (1)[5
] [Insurance – Presenting False Information Supporting Claim] and Health and Safety Code section 11173, subdivision (a) [6
] [Obtaining Prescription by Fraud/Deceit].
CMS Ex. 1 at 36-37. In a Stipulated Settlement and Disciplinary Order (Stipulation), Petitioner admitted to the truth of all charges and allegations in the Executive Director's complaint. *Id.* at 4-5. Petitioner's signature on the Stipulation, dated May 25, 2017, confirms that she had "carefully read" it, "fully discussed it with [her] attorney," "fully" understood it, "enter[ed] into [it] voluntarily, knowingly, and intelligently, and agree[d] to be bound by the Decision and Order of the Medical Board of California." *Id.* at 23.7
Petitioner concedes that she pleaded guilty to the above-described felony offenses. P. Br. at 2-3, 8. However, she argues that she was not convicted of a felony offense because a court order later "transmuted" her felony offenses to misdemeanor offenses. *Id.* at 3, 8-9 (citing CMS Ex. 3 at 22).
Petitioner's argument lacks merit. As a factual matter, I find, based on the record and her own admission, that Petitioner pleaded guilty to two felony offenses on December 14, 2015. CMS Ex. 1 at 4-5, 23, 36-37; P. Br. at 2-3, 8. I infer from the record that the state court accepted her guilty plea the same day and also entered a judgment of conviction against her for those two felony offenses. As already noted, a state court accepting a guilty plea and entering a judgment of conviction both satisfy the definition of "convicted" under federal law. 42 C.F.R. §§ 424.535(a)(3), 1001.2. That the state court later granted Petitioner's post-conviction motion to reduce her offenses to misdemeanors does not alter the fact of her conviction as defined in the federal regulations. Relevant here, 42 C.F.R. § 1001.2 explicitly states that an individual remains convicted even if the judgment of conviction is later "expunged or otherwise removed." Petitioner did not plead guilty to misdemeanor offenses, nor did the state court accept a guilty plea to misdemeanor offenses; Petitioner pleaded guilty to felony offenses, and the state court accepted that plea. Thus, Petitioner's convictions were for felony offenses, even though
Page 7
the state court later, in essence, "otherwise removed" that judgment by granting her post‐conviction motion. Consequently, I conclude that, on December 14, 2015, Petitioner was convicted of a felony offense within the meaning of the regulations.
Noridian sent Petitioner notice of the revocation on August 14, 2017. CMS Ex. 3 at 53. Therefore, I conclude further that Petitioner was convicted of a felony offense within the 10 years prior to revocation.
***b. At least one of the felony offenses for which Petitioner was convicted is per se detrimental to the best interests of the Medicare program and its beneficiaries because it would result in mandatory exclusion under section 1128(a)(4) of the Act.***
In its January 17, 2018 reconsidered determination, CMS, through its Provider Enrollment Oversight Group, concluded that the felony offenses for which Petitioner was convicted were detrimental to the Medicare program and its beneficiaries under 42 C.F.R. § 424.535(a)(3). CMS Ex. 4 at 6-7. CMS first found Petitioner's "felony offenses of unlawfully possessing and consuming a dangerous prescription drug to be . . . akin to the enumerated crimes in 42 C.F.R. § 424.535(a)(3)[(ii)](D) [i.e., felonies that would require exclusion under section 1128(a) of the Act], which CMS has found to be *per se* detrimental to the Medicare program and its beneficiaries." *Id.* at 7. In making this finding, CMS specifically cited to section 1128(a)(4) of the Act. *Id.* In the alternative, CMS concluded that Petitioner's conviction was "detrimental to the Medicare program and its beneficiaries" based on its findings that her offenses involved dishonesty and deception, calling into question her trustworthiness, and presented "a danger to the health, safety, and welfare of Medicare beneficiaries." *Id.*
In promulgating 42 C.F.R. § 424.535(a)(3), CMS determined that the enumerated crimes are detrimental per se to Medicare.8
 *See Letantia Bussell, M.D.*, DAB No. 2196 at 9 (2008). As noted above, such enumerated crimes include felonies that would result in mandatory exclusion under Act § 1128(a). 42 C.F.R. § 424.535(a)(3)(ii)(D). Section 1128(a) of the Act describes four separate categories of offenses requiring exclusion from participation in federal health care programs of any individual convicted of one or more such offenses. As relevant here, exclusion is mandated for "[a]ny individual or entity that
Page 8
has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance." Act § 1128(a)(4) (42 U.S.C. § 1320a-7(a)(4)). Accordingly, if Petitioner's conviction for obtaining controlled substances, or procuring or attempting to procure the administration of or prescription for controlled substances by fraud, deceit, misrepresentation, or subterfuge or by concealment of a material fact, in violation of Cal. Health & Safety Code § 11173(a),9
 is a crime requiring exclusion under section 1128(a)(4) of the Act, CMS was authorized to revoke her Medicare enrollment and billing privileges. *See Abdul Razzaque Ahmed, M.D.*, DAB No. 2261 at 7, 14 (2009), *aff'd*, *Ahmed v. Sebelius*, 710 F. Supp. 2d 167 (D. Mass 2010).10
Petitioner's conviction for violating Cal. Health & Safety Code § 11173(a) satisfies the criteria for mandatory exclusion pursuant to Act § 1128(a)(4). First, as I have discussed above, the conviction was for a felony that occurred well after August 21, 1996. Next, Cal. Health & Safety Code § 11173(a) makes it a crime to engage in any of the following actions:
(1) obtain or attempt to obtain controlled substances by fraud, deceit, misrepresentation, subterfuge, or by concealing a material fact;
	(2) procure or attempt to procure the administration of controlled substances by fraud, deceit, misrepresentation, subterfuge, or by concealing a material fact; or
	(3) procure or attempt to procure a prescription for controlled substances by fraud, deceit, misrepresentation, subterfuge, or by concealing a material fact.
Page 9
The elements of this offense expressly relate to the unlawful distribution, prescription, or dispensing of a controlled substance, as described in section 1128(a)(4). Moreover, the facts underlying Petitioner's conviction and to which Petitioner admitted show that she improperly prescribed a controlled substance. Specifically, Petitioner admitted to investigators that she had written multiple prescriptions for hydrocodone for her husband, but ingested the medication herself. CMS Ex. 1 at 32-33. Plainly, Petitioner's specific felony offense relates to the unlawful prescription of controlled substances. Based on the foregoing discussion, then, I conclude that Petitioner was convicted of a felony offense that would result in mandatory exclusion under Act § 1128(a)(4) and, thus, is per se detrimental to the Medicare program and its beneficiaries. 42 C.F.R. § 424.535(a)(3)(ii)(D).
Petitioner contends that I should not consider CMS's "arguments for mandatory exclusion" because "the decision at issue in this appeal relies on [CMS's] discretionary authority to revoke Dr. Ordonez's Medicare privileges." P. Br. at 7. This argument fails to grasp that the legal basis for exclusion pursuant to section 1128(a) of the Act is also a basis upon which CMS may rely to revoke a supplier's Medicare enrollment and billing privileges. CMS's discretion to revoke, conferred by 42 C.F.R. § 424.535(a), must be predicated on one of the legal bases listed in that regulation to be a lawful exercise of discretion. As already stated, one basis that triggers CMS's lawful revocation authority is when a supplier "was, within the preceding 10 years, convicted . . . of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries," and CMS has determined by regulation that "[a]ny felonies that would result in mandatory exclusion under section 1128(a) of the Act" are per se detrimental. 42 C.F.R. § 424.535(a)(3)(i), (ii)(D). Given this legal background, it is perfectly legitimate for CMS to argue, and for me to conclude, that Petitioner's offense of conviction would require mandatory exclusion, justifying CMS's discretionary decision to revoke Petitioner's Medicare enrollment and billing privileges.
***2. CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(9) because she did not disclose her felony conviction to CMS or Noridian within 30 days, contrary to the reporting requirement at 42 C.F.R. § 424.516(d)(1)(ii).***
Having concluded that CMS had a legal basis to revoke Petitioner's Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(3) based on her felony conviction for obtaining prescriptions by fraud/deceit, it is not necessary to decide whether there is also a basis to revoke Petitioner's enrollment under section 42 C.F.R. § 424.535(a)(9) for failing to report her convictions contrary to the reporting requirement at 42 C.F.R. § 424.516(d)(1)(ii). *See, e.g.*,*Daniel Wiltz & Family Healthcare Clinic, APMC*, DAB No. 2864 at 12 (2018) (if one basis for sanction is established, CMS's action would be
Page 10
sustained "regardless of any additional bases").11
 However, while not required to do so, in this section, I explain why I conclude that there is a basis to revoke Petitioner's Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(9).
Physician suppliers, such as Petitioner, must report any adverse legal action to their Medicare contractor within 30 days. 42 C.F.R. § 424.516(d)(1)(ii). "A conviction of a . . . State felony offense (as defined in [42 C.F.R.] § 424.535(a)(3)(i)) within the last 10 years preceding enrollment, revalidation, or re-enrollment" is a reportable final adverse action. 42 C.F.R. § 424.502. As explained above, Petitioner's felony conviction on December 14, 2015, satisfies this definition and, as a result, was a reportable adverse legal action. Thus, Petitioner was obligated to report the conviction to Noridian, her Medicare contractor, within 30 days of December 14, 2015.
CMS may revoke a supplier's enrollment and billing privileges if the supplier does not comply with the above-described reporting requirement. 42 C.F.R. § 424.535(a)(9). In the initial determination to revoke, Noridian asserted that Petitioner did not report her felony convictions (CMS Ex. 3 at 53), and Petitioner does not dispute that she failed to inform Noridian or CMS of her felony conviction within 30 days of December 14, 2015. Indeed, in her request for reconsideration, Petitioner conceded that she failed to report her convictions. CMS Ex. 3 at 4. Therefore, her failure to do so furnished an additional legal basis for CMS to revoke her Medicare enrollment and billing privileges. 42 C.F.R. § 424.535(a)(9).
***3.Petitioner's other arguments are not a basis to reverse the revocation of her Medicare enrollment and billing privileges.***
Petitioner argues generally that her revocation should be reversed because CMS acted arbitrarily and capriciously and "abused its discretion in issuing its decision to revoke [her] Medicare privileges . . . ." P. Br. at 9. Petitioner makes two points in favor of this argument. Neither has merit.
Petitioner first argues that CMS's decision to revoke violates the Rehabilitation Act of 1973 § 504 (29 U.S.C. § 794). P. Br. at 9. In relevant part, that section provides,
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or
Page 11
under any program or activity conducted by any Executive agency . . . .
29 U.S.C. § 794(a). Petitioner asserts that she is an "individual with a disability" because she has a history of alcohol and drug abuse for which she still receives treatment and that CMS revoked her Medicare privileges based on a "discriminatory belief that Medicare must guard against [her] disability," contrary to 29 U.S.C. § 794(a)'s prohibition on such discrimination. P. Br. at 9-12.
Even assuming for argument's sake that Petitioner has a disability, Petitioner has not shown that she was excluded from participating in Medicare or otherwise subjected to discrimination by CMS "solely by reason of her . . . disability." To the contrary, in determining to revoke Petitioner's Medicare enrollment and billing privileges, Noridian and CMS relied primarily on findings that Petitioner
(1) was convicted of a felony that is detrimental to the Medicare program,
	(2) failed to report her felony convictions to CMS or Noridian, and
	(3) was ordered to surrender her DEA certificate to prescribe controlled substances.
CMS Ex. 3 at 53; CMS Ex. 4 at 6-9. None of these bases for revocation evidences discriminatory intent on the part of CMS or Noridian. Rather, they show that CMS and Noridian acted consistent with the authority conferred on them by regulation to protect the Medicare program and its beneficiaries from an individual whose serious misconduct, which resulted in two felony convictions, demonstrated extremely poor judgment, as well as a lack of trustworthiness. The Rehabilitation Act's prohibition on discriminating based on disability does not require CMS to ignore Petitioner's serious misconduct, to the detriment of the Medicare program and its beneficiaries, even if Petitioner is also a person with a disability.
Petitioner goes on to argue that CMS's revocation decision was arbitrary and capricious and a "clear abuse of discretion," and should be set aside, because CMS "failed to adequately consider all of the relevant evidence of consequence when arriving at its decision." P. Br. at 12-14. In Petitioner's view, a full review of all the evidence in the case, which Petitioner urges me to conduct, would show that revocation is unwarranted (i.e., arbitrary and capricious) because of the progress she has made in recovering from her substance abuse problems and the harm her revocation would inflict on her vulnerable patients. P. Br. at 13-14.
Petitioner's contention that I may overturn CMS's revocation of her Medicare enrollment and billing privileges as "arbitrary and capricious" misunderstands my role as an administrative law judge in the administrative appeal process. The arbitrary and capricious standard, codified in the Administrative Procedure Act (APA), is a standard
Page 12
for court review of final agency actions. 5 U.S.C. § 706. My role differs from that of a federal court reviewing final agency actions. In administrative proceedings governed by 42 C.F.R. Part 498, neither CMS's revocation determination nor my decision reviewing that determination is a final agency action. *Arriva Med., LLC*, DAB No. 2934 at 15 (2019); *see also* 42 C.F.R. § 498.90 (providing that the appellate decision of the DAB is the final agency action that may be appealed to federal court). As an appellate panel of the DAB held in *Hanover Hill Health Care Ctr.*, "[n]othing in the APA . . . applies the 'arbitrary and capricious standard' to Board review of an [administrative law judge] decision on behalf of the Secretary . . . ." DAB No. 2507 at 7 (2013); *see also Cal Turner Extended Care Pavilion*, DAB No. 2030 at 7 (2006) (discussing "the distinction between the oversight role of a federal court reviewing agency decisions to determine if an adequate basis is articulated and the internal agency appeals process for formulating final agency action").
Moreover, appellate panels of the DAB have repeatedly rejected this line of argument. *See, e.g.*, *Arriva*, DAB No. 2934 at 15-16 (and cases cited therein). My review of CMS's discretionary decision to revoke Petitioner's Medicare enrollment and billing privileges "is 'limited to deciding whether CMS had a valid legal basis for that action.'" *Id.* at 15 (quoting *Care Pro Home Health, Inc.*, DAB No. 2723 at 5 (2016)). I am not authorized to substitute my discretion for CMS's discretion. *Id.* (citing *Ahmed*, DAB No. 2261 at 17, 19). Furthermore, to the extent Petitioner is seeking equitable relief from her revocation, I cannot grant such relief. *Id.* at 16 (citing *Central Kan. Cancer Inst.*, DAB No. 2749 at 10 (2016)).
VI. Conclusion
For the reasons stated, I affirm that CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. The Provider Enrollment & Oversight Group is a component of CMS itself, not an administrative contractor. back to note 1
                      2. Petitioner offered her "statement" as P. Ex. 1. However, I do not consider the statement written direct testimony because it is not in the form of an affidavit or declaration under penalty of perjury. See Pre-Hearing Order ¶ 8. In any event, CMS did not request to cross-examine Petitioner. back to note 2
                      3. The regulation governing revocations recently underwent significant revisions, which took effect November 4, 2019. 84 Fed. Reg. 47,794, 47,794, 47,854-56 (Sept. 10, 2019). Pursuant to the revisions, CMS now may establish a re‐enrollment bar for a period ranging from one to 10 years for a first-time revocation, a range that increases to 20 years for a second revocation. Id. at 47,855 (amending 42 C.F.R. § 424.535(c)). These revisions took effect well after the initial determination to revoke issued in this case. I apply the regulations in effect at the time of the initial determination. Linda Silva, P.A., DAB No. 2966 at 1 n.1 (2019). back to note 3
                      4. My findings of fact and conclusions of law appear as headings in bold italic type. back to note 4
                      5. Cal. Penal Code § 550(b)(1) makes it unlawful to "[p]resent or cause to be presented any written or oral statement as part of, or in support of or opposition to, a claim for payment or other benefit pursuant to an insurance policy, knowing that the statement contains any false or misleading information concerning any material fact." back to note 5
                      6. Cal. Health & Safety Code §  11173(a) makes it unlawful to "obtain or attempt to obtain controlled substances, or procure or attempt to procure the administration of or prescription for controlled substances, (1) by fraud, deceit, misrepresentation, or subterfuge; or (2) by the concealment of a material fact." back to note 6
                      7. The Medical Board adopted the Stipulation in a June 30, 2017 order. CMS Ex. 1 at 2. back to note 7
                      8. Effective February 3, 2015, CMS modified 42 C.F.R. § 424.535(a)(3). 79 Fed. Reg. 72,500, 72,532 (Dec. 5, 2014). In the prior version of the regulation, the enumerated felonies regarded as per se detrimental to Medicare appeared in subsection 424.535(a)(3)(i). However, the descriptions of the enumerated felonies are unchanged. Thus, prior decisions of Departmental Appeals Board (DAB) administrative law judges and appellate panels interpreting 42 C.F.R. § 424.535(a)(3)(i)(A)-(D) are relevant in interpreting the current provision at 42 C.F.R. § 424.535(a)(3)(ii)(A)-(D). back to note 8
                      9. Petitioner also was convicted of violating Cal. Penal Code § 550(b)(1). However, that offense does not so directly implicate the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance as does Petitioner's violation of Cal. Health & Safety Code § 11173(a). back to note 9
                      10. Even if Petitioner's conviction was for a crime not deemed similar to one enumerated in 42 C.F.R. § 424.535(a)(3), CMS is authorized to determine, on a case-by-case basis—as it did here (CMS Ex. 4 at 7)—that a particular felony conviction is detrimental to Medicare and its beneficiaries and therefore supports revocation. See, e.g., Saeed A. Bajwa, M.D., DAB No. 2799 at 10-12 (2017) (holding that 42 C.F.R. § 424.535(a)(3)(i) authorizes CMS to determine what felony convictions are a basis for revocation and that CMS is not limited to the felonies enumerated as examples). Because Petitioner was convicted of a felony offense that is per se detrimental to Medicare, however, CMS was not required to make an individualized determination that her offense was detrimental to Medicare, and I need not review that determination. Cornelius M. Donohue, DPM, DAB No. 2888 at 6 (2018). back to note 10
                      11. For this reason, I do not discuss further CMS's reliance on 42 C.F.R. § 424.535(a)(13) as a basis for revocation. back to note 11 Back to top
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