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                              Robert Corkern, M.D., DAB CR5405 (2019)
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Robert Corkern, M.D., DAB CR5405 (2019)








  
  
    

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





Robert Corkern, M.D.,
	(NPI: 1700962248)
	Petitioner,
v.
Centers for Medicare & Medicaid Services,
Respondent.
Docket No. C-19-504Decision No. CR5405August 22, 2019

        
              
    

      DECISION
The Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor, Novitas Solutions (Novitas), denied Petitioner Robert Corkern’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(3).  Petitioner challenges this denial before me. For the reasons discussed below, I affirm CMS’ denial of Petitioner’s enrollment application.
I. Background
Petitioner is a physician specializing in emergency medicine licensed to practice in Mississippi. Petitioner’s Brief (P. Br.) at 1. On December 28, 2011, he pleaded guilty to one count of aiding and abetting in bribery involving federal programs, in violation of 18 U.S.C. §§ 2 and 666(a)(2).1
 CMS Ex. 2 at 1. Petitioner gave $25,000 to the County
Page 2
Administrator for Panola County, Mississippi in exchange for assurance from that individual that he would disburse $400,000 in funds to Petitioner’s hospital, which he had taken over and which was in financial distress.  CMS Ex. 2 at 1; P. Ex. 2 at 7-11. On November 13, 2012, the U.S. District Court for the Northern District of Mississippi (District Court) sentenced Petitioner to 24 months’ home detention and ordered him to pay $400,000 in restitution to Panola County. CMS Ex. 6 at 4-5.
In October 2013, Novitas revoked Petitioner’s Medicare billing privileges for his noncompliance with enrollment requirements resulting from his felony conviction and for failing to report his conviction as an adverse action within 30 days. CMS Ex. 3 at 1-2. Novitas barred Petitioner from re-applying for enrollment as a Medicare biller for three years. *Id.* at 3.
Petitioner applied to re-enroll as a supplier in the Medicare program in July 2018. Request for Hearing (RFH), Supporting Documents at 6-33.2
 Petitioner properly identified his conviction in his application. *Id.* at 10, 18-19. He also attached several documents pertaining to that conviction, his readmission to practice medicine in Mississippi, his denial for enrollment as a biller for Mississippi Medicaid, and letters of support. *Id.* at 36-81.
On July 31, 2018, Novitas notified Petitioner by letter that it denied his Medicare enrollment application because it determined pursuant to 42 C.F.R. § 424.530(a)(3) that his felony conviction was detrimental to the best interests of the Medicare program and its beneficiaries. CMS Ex. 4. Petitioner timely requested reconsideration, *see* CMS Ex. 5. On January 3, 2019, a CMS hearing officer notified Petitioner she had denied his reconsidered request. RFH, Originating Case Decision.
Through counsel, Petitioner timely sought a hearing before an administrative law judge (ALJ), and I was designated to hear and decide this case. On March 13, 2019, I issued an Acknowledgment and Pre‐hearing Order (Pre‐hearing Order) setting forth a briefing schedule. CMS submitted its pre-hearing exchange and motion for summary judgment (CMS Br.) with six proposed exhibits (CMS Exs. 1-6). Petitioner subsequently filed his brief in response, a proposed witness list, and six proposed exhibits (P. Ex. 1-6).
Page 3
II. Admission of Exhibits and Decision on the Record
Petitioner has indicated no objection to CMS Exhibits 1 through 6, which are therefore entered into the record. CMS made no objection to Petitioner’s Exhibits 1 through 6, which are also entered into the record.
Petitioner also submitted documentary evidence in two attachments to his request for hearing; the first is Novitas’ denial of his reconsidered request, labeled in DAB E-file as “Originating Case Decision” and internally labeled as “Exhibit 1.” DAB E-file, Docket No. 19-504 at Doc. No. 1a. The second attachment is labeled as “Request for Hearing Supporting Documents” in DAB E-file. *Id.* at Doc. No. 1b. It contains numerous documents which include cover sheets identifying Exhibits 2 through 6, none of which are numbered, and some of which include underlying attachments.
Upon filing his pre-hearing exchange, Petitioner did not re-submit these documents separately as proposed exhibits, though both parties cite to them. To add further confusion, despite having already submitted documents identified as Exhibits 1-6 with his hearing request, Petitioner also labeled the exhibits submitted with his pre-hearing exchange as Exhibits 1-6. Some of these exhibits duplicate their numbered counterparts found in the Supporting Documents, but others do not.
As this matter is subject to a regulatory deadline for the issuance of my decision, I will not require Petitioner to re-submit these exhibits in accordance with my Pre-hearing Order.  But to avoid any confusion resulting from the manner in which Petitioner submitted his proposed exhibits, I refer to the documents submitted with his pre-hearing exchange as P. Exs. 1-6. Regarding the submissions made with his request for hearing, I will refer to Doc No. 1a in DAB E-file as the Originating Case Decision, and I will refer to the omnibus document at Doc. No. 1b in DAB E-file as “RFH Supporting Documents.” When I cite these documents, I will refer to the page numbers of the entire document as indicated by the DAB E-file system, rather than the sub-filings or their attachments.
CMS has made no objection to either of these documents and indeed, relies on them as part of its own case. I therefore admit Originating Case Decision and RFH Supporting Documents into the record.
Finally, Petitioner has provided written direct testimony for three witnesses. CMS has not identified witnesses to testify in this matter, nor has it requested cross‐examination of Petitioner’s witnesses. Consequently, I will not hold an in-person hearing in this matter, and I issue this decision based on the written record.3
 Civ. R. Div. P. § 19(d).
Page 4
III. Issues
Whether CMS has a legitimate basis to deny Petitioner’s enrollment application seeking Medicare billing privileges under 42 C.F.R. § 424.530(a)(3) based on Petitioner’s felony conviction for bribery.
IV. Jurisdiction
I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(*l*)(2).
V. Findings of Fact, Conclusions of Law, and Analysis4
**A. Applicable Law.**
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 (definition of supplier), 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 application for Medicare billing privileges for any reason stated in 42 C.F.R § 424.530. This includes the existence of a felony conviction:
CMS may deny a. . .supplier’s enrollment in the Medicare program for the following reasons:
***
(3) *Felonies*. The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.
(i) Offenses include, but are not limited in scope or severity to-
***
(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions
Page 5
42 C.F.R. § 424.530(a)(3).
A felony specifically listed in the regulations is considered detrimental per se.  *Letantia Bussell, M.D.*, DAB No. 2196 at 9 (2008). A felony offense not specifically listed in the regulations that is similar to such an offense can also provide the basis for denial of enrollment; in that case, an ALJ must look to the circumstances surrounding the conviction to assess similarity. Finally, even if a felony offense is not specifically listed or similar to those listed in the regulations, CMS may determine, on a case-by-case basis, that a felony conviction is detrimental to the best interests of the Medicare program and program beneficiaries. *Brenda Lee Jackson*, DAB No. 2903 at 8 (2018).  In that instance, an ALJ must assess whether CMS’ determination that a felony offense is detrimental to the best interests of the program and its beneficiaries is reasonable. *See Fady Fayad, M.D.*, DAB No. 2266 at 8, 16-17 (2009), *aff’d*,*Fayad v. Sebelius*, 803 F. Supp. 2d 699, 704 (E.D. Mich. 2011).
**B. Analysis**
***1. Petitioner was convicted of a felony offense within ten years preceding the application for enrollment for purposes of 42 C.F.R. § 424.530(a)(3).***
A denial of enrollment under 42 C.F.R. § 424.530(a)(3) is premised on the existence of a felony conviction within the ten years preceding the enrollment application. There is no dispute Petitioner was convicted of a felony offense within the ten years preceding his most recent application for enrollment. He pleaded guilty to a one-count felony conviction on December 28, 2011. CMS Ex. 2. The District Court entered judgment against Petitioner on November 13, 2012. CMS Ex. 6. Petitioner applied to CMS to re‐enroll as a supplier in the Medicare program in July 2018. RFH Supporting Documents at 6-33. Petitioner’s felony conviction therefore occurred within the 10 years preceding the date Petitioner submitted his enrollment application for Medicare billing privileges.
***2. Petitioner was convicted of a felony that is detrimental to the best interests of the Medicare program or its beneficiaries.***
CMS may deny a supplier’s application for enrollment in the Medicare program for a felony conviction occurring within the preceding ten years of the application if that felony is a financial crime, which includes “extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes.” 42 C.F.R. § 424.530(a)(3)(i)(B).
Here, Petitioner’s offense of conviction, bribery, is not specifically listed in that regulatory provision. CMS argues that Petitioner’s conviction pursuant to 18 U.S.C. § 666(a)(2) is similar to the crimes listed above, and is therefore a financial crime within the meaning of 42 C.F.R. § 424.530(a)(3)(i)(B). CMS Br. at 4-5. Petitioner disputes the
Page 6
similarity between his offense of conviction and the listed financial crimes that are considered per se detrimental. P. Br. at 10-13. I am persuaded the felony offense of bribery is sufficiently similar in nature to the listed financial crimes to provide CMS a basis to deny Petitioner’s enrollment application.
CMS states simply that “bribing a state official for the benefit of a hospital is a financial crime” – a proposition I find difficult to reject. CMS Br. at 5. Looking at the particular circumstances behind the conviction, as Petitioner asks me to do, there is no doubt he was convicted of a financial crime. Petitioner’s conviction resulted from his payment of $25,000 to a local official in exchange for assurance from that individual that he would disburse funds to Petitioner’s hospital, which Petitioner had taken over and which was in financial distress.  CMS Ex. 2 at 1; P. Ex. 2 at 7-11. In his plea agreement, Petitioner admitted he “knowingly and corruptly” gave an amount in excess of $5,000 to a local county official “in an effort to obtain $400,000 in funds . . . .”  CMS Ex. 2 at 1. It is difficult to visualize Petitioner’s offense of conviction as anything *but* a financial crime. As such, I find CMS had the authority to deny his enrollment application pursuant to 42 C.F.R. § 424.530(a)(3)(i)(B).
Petitioner acknowledges that another ALJ in this division, when confronted by a petitioner denied enrollment for a bribery conviction under almost identical circumstances (though in the context of enrollment revocation), also found that conviction similar to the per se financial crimes and therefore detrimental. P. Br. at 10-13, citing *Robert J. Aquino, M.D.*, DAB CR4910 (2017). There, Dr. Aquino purchased a financially distressed hospital and received a solicitation from a state senator for a bribe, in exchange for which the senator offered to take official action to keep the hospital open.  *Aquino*, DAB CR4910 at 4.
Petitioner attempts to distinguish *Aquino*, presumably to show that his offense of conviction would not be detrimental to the Medicare program or its beneficiaries. He explains that he acted under duress and unlike Dr. Aquino, did not bribe the county official “for the protection of a proprietary interest.” P. Br. at 11. Even if Petitioner was correct, his argument does nothing to convince me his crime was not financial in nature. Moreover, Petitioner did have a financial interest almost identical to that of Dr. Aquino. As the District Court observed during Petitioner’s sentencing, he had obtained title to the hospital, which was close to bankruptcy, and therefore had a financial motive to commit the crime in order to save the hospital. P. Ex. 2 at 8.
Even if I ignored the financial nature of Petitioner’s conviction, I would still find CMS had the authority to deny his enrollment application. It is true Petitioner did not seek to steal federal funds himself. But when put in a financially vulnerable position, he succumbed to solicitation to commit bribery by a local county official with access to program funds. CMS had a valid basis to conclude the nature of Petitioner’s criminal offense would have a detrimental effect on the Medicare program and its beneficiaries.
Page 7
Petitioner also argues that the fact his conviction did not trigger mandatory exclusion by the Department of Health and Human Services Inspector General (IG) suggests his crime was not detrimental, since the IG is required to exclude any individual convicted of financial misconduct. P. Br. at 12-13. This claim is without merit. In the context of enrollment revocation, the Board has addressed this argument and observed “revocation. . .and exclusion . . .are distinct remedial tools, each with its own set or prerequisites and consequences for the provider or supplier.” *Abdul Razzaque Ahmed, M.D.,*DAB No. 2261 at 13 (2009),*aff’d*,*Ahmed v. Sebelius*, 710 F.Supp. 2d 167 (D. Mass. 2010). Similarly, CMS’ interest in denying enrollment to an individual convicted of a financial crime serves a different purpose than that protected by the IG. The IG’s inquiry – whether an individual committed financial misconduct sufficient to trigger exclusion – is not the same as CMS’ inquiry – to assess whether Petitioner’s conviction would be detrimental to the Medicare program. As such, Petitioner’s attempt to rely on the IG’s more narrow determination has no persuasive weight.
***3. CMS exercised its discretion to consider whether it should deny Petitioner’s enrollment application.***
Petitioner complains that CMS reflexively denied his enrollment application without exercising its discretion to consider granting it. P. Br. at 6. In support, he relies on *Brian K. Ellefsen, DO*, DAB No. 2626 (2015); there, the Board remanded an ALJ decision affirming an enrollment denial because the Medicare contractor’s denial decision did not indicate it recognized its own discretion to approve or deny the application based on 42 C.F.R. § 424.530.5
 CMS responds that *Ellefsen*is inapplicable in this case because a CMS hearing officer, not the contractor, wrote the reconsidered determination and was aware of her discretion to consider enrolling Petitioner.  CMS Br. at 6-7, citing Originating Case Decision.
The circumstances here are sufficiently distinct from *Ellefsen*to reject Petitioner’s claim. As CMS observed, one of its own hearing officers, not the contractor, issued the reconsidered determination here. In her detailed determination, the CMS hearing officer discussed the facts and circumstances of Petitioner’s case, including mitigating factors,
Page 8
and ultimately decided enrolling Petitioner was “not in the best interest of the program or its beneficiaries.” Originating Case Decision at 9. The hearing officer’s discussion of the nature of Petitioner’s felony as well as evidence that supported Petitioner’s request for enrollment satisfies me that CMS, through its hearing officer, considered the possibility of enrolling Petitioner, despite his felony conviction, and ultimately decided to exercise its discretion against him.
***4. CMS may not bar Petitioner from reapplying for enrollment relying on 42 C.F.R. § 424.530(a)(3)(ii).***
Significant confusion has been generated by the hearing officer’s apparent invocation of 42 C.F.R. § 424.530(a)(3)(ii) in her decision.6
 Originating Case Decision at 9 (“Dr. Corkern is eligible to reapply and will be re-enrolled on or after December 28, 2021. . .”). This date is ten years after the date Petitioner signed his plea agreement. CMS Ex. 2 at 1. The only basis for imposing a ten-year enrollment bar is where an applicant “has been convicted on one previous occasion for one or more offenses.”  42 C.F.R. § 424.530(a)(3)(ii). This language could be read to require a minimum ten-year enrollment bar where an individual has been convicted of multiple felony offenses on one occasion, or convicted on more than one occasion of a felony offense.
However, neither of those circumstances are present here. In the ten years preceding his application, Petitioner was convicted of only one felony offense. Therefore, it does not appear this provision is applicable to Petitioner.  *Belin,*DAB No. 2629 at 5 (“The regulation only restricts CMS’s authority to admit a supplier after a felony conviction to a period of ‘not less than 10 years’ if the individual had one or more additional prior convictions. **In other cases, the regulation does not impose a mandatory 10-year bar to re-enrollment but rather authorizes denials within the 10-year period**.”) (emphasis added) (citation omitted).
Accordingly, the CMS hearing officer either improperly attempted to impose a ten-year enrollment bar, or provided incorrect advice to Petitioner as to the next available date he could apply for enrollment. Because he has only one felony conviction, Petitioner may re-apply as soon as his appeal rights lapse, or as in this instance, when my decision becomes final. 42 C.F.R. § 424.530(b) (“A provider or supplier that is denied enrollment in the Medicare program . . .may reapply after its appeal right have lapsed [or] after notification that the determination was upheld.”); *Belin*, DAB No. 2629 at 5 (“[T]he regulations expressly permit a supplier to reapply after a denial once the determination to deny has been upheld after any appeals.”).
Page 9
Should Petitioner again seek to enroll at that time, I wish to note as a final observation to CMS that Petitioner has made a compelling argument he should be allowed to re-enroll in the Medicare program. He has provided significant evidence of the need for his services as an emergency physician in a medically underserved area. He has submitted letters of recommendation from his peers and from highly-ranked government officials, including the governor of his state and both of his U.S. Senators. The features of his criminal offense suggest, as the sentencing judge noted, that Petitioner was duped into his role and did not intend to steal funds from the Medicare program. P. Ex. 2 at 8. I also note the District Court rescinded its order of restitution against Petitioner because the hospital was entitled to receive the program funds Petitioner was fooled into bribing a local county official to disburse. If this decision were left to me, I would likely find it appropriate to trust Petitioner to participate as a supplier to the Medicare program.
Of course, that is not my role in these proceedings. My role is to determine whether CMS established a legal basis to take the action it took against Petitioner, not to substitute my own judgment. *Bussell*, DAB No. 2196 at 9 (“the right to review of CMS’s determination by an ALJ serves to determine whether CMS had the authority to revoke Dr. Bussell’s Medicare billing privileges, not to substitute the ALJ’s discretion about whether to revoke. . .Once the ALJ found that both elements required for revocation were present (i.e. (1) felony conviction and (2) CMS’s determination that the offense is detrimental), the ALJ was obliged to uphold the revocation, as are we.”) (citation omitted).
Here, as in *Bussell*, CMS has established it had the authority to deny Petitioner’s enrollment based on his felony conviction for a financial crime that occurred within the prior ten years. *See Stanley Beekman, D.P.M.*, DAB No. 2650 at 3 (2015) (providing CMS may revoke billing privileges based solely on a qualifying felony conviction without regard to other factors). CMS has also demonstrated that it was aware of its power to exercise discretion in considering Petitioner’s application, and chose not to exercise that discretion based on its own assessment of the nature of Petitioner’s conviction and to what extent it was detrimental to the Medicare program and its beneficiaries. As such, I must affirm CMS’ denial of Petitioner’s enrollment application.
VI. Conclusion
I affirm CMS’ determination denying Petitioner’s Medicare enrollment application.


          /s/
        Bill Thomas

                      Administrative Law Judge
      1. 18 U.S.C. § 2 imposes the same criminal liability on an aider and abettor of a crime as a principal. 18 U.S.C. § 666(a)(2) describes an individual guilty of bribery involving a federal program as someone who “corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more[.]” back to note 1
                      2. I address these documents more fully infra in Section II. back to note 2
                      3. As such, CMS’ motion for summary judgment is denied as moot. back to note 3
                      4. My findings of fact and conclusions of law are set forth in italics and bold font. back to note 4
                      5. This regulation sets forth the reasons CMS may deny an enrollment application, which include, applicable here and in Ellefsen, felony convictions occurring in the ten years preceding enrollment. 42 C.F.R. § 424.530(a)(3). However, the prefatory language at subsection (a) states “CMS may deny a provider’s or supplier’s enrollment in the Medicare program for the following reasons...” (emphasis added). The Board recognized this prefatory language contemplates CMS will first decide whether to deny enrollment; only then does the regulation constrain the agency with respect to the basis for denial. Ronald Paul Belin, DPM, DAB No. 2629 at 4 (2015), citing Ellefsen, DAB No. 2626 (“The Board has recently accepted CMS’s position that its determination (and that of its contractors) about whether to deny a particular supplier’s enrollment application under section 424.530(a)(3) is discretionary, not mandatory, even where the underlying conviction is for an offense within one of the categories that CMS has determined to be detrimental to the best interests of the program and its beneficiaries.”). back to note 5
                      6. I note that CMS has stood mute on this issue and does not attempt to argue that a ten-year enrollment bar under 42 C.F.R. § 424.530(a)(3)(ii) is applicable here. back to note 6 Back to top
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