Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Pierre-Richard Edouard, M.D.,
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-15-3375
Decision No. CR4558

Date: March 24, 2016

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative
contractor, revoked the Medicare enrollment and billing privileges of Pierre-Richard
Edouard, M.D. (Dr. Edouard or Petitioner) because he failed to provide documentation,
based on a CMS request, related to numerous Medicare claims involving home health
services that Dr. Edouard ordered or certified. Petitioner requested a hearing to dispute
the revocation. CMS subsequently moved for summary judgment. Because there is no
dispute that Petitioner failed to provide five of the requested documents, I grant CMS’s
motion for summary judgment and affirm the revocation of Petitioner’s Medicare
enrollment and billing privileges for a period of one year.

I. Background and Procedural History

Dr. Edouard is a physician licensed to practice medicine in the state of Florida and,
therefore, a supplier 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); CMS Exhibit (Ex.) 23 at 8.
In a January 30, 2015 initial determination, CMS’s administrative contractor revoked
Petitioner’s Medicare billing privileges, effective March 1, 2015, for the following
reason:
42 CFR § 424.535(a)(10) Failure to Document or Provide
CMS Access to Documentation

On October 15, 2014, Safeguard Services, LLC (SGS)
requested 40 medical records for 40 beneficiaries for whom
Pierre-Richard Edouard had ordered and certified [home
health] services. On November 18, 2014, SGS received
partial medical records from Pierre-Richard Edouard and his
attorney . . . in which two of the requested beneficiaries[’]
medical records were not submitted and 22 of the
beneficiaries’ records were incomplete.  Pierre-Richard
Edouard failed to submit any written and electronic
documents relating to written orders and certifications and
request for home health services, specifically the plan of care,
face-to-face forms, verbal orders and prescriptions for two of
the beneficiaries requested.

CMS Ex. | at 3 (emphasis in original). CMS’s administrative contractor barred
Petitioner from re-enrolling in the Medicare program for one year. Jd. at 4.

Petitioner timely requested reconsideration of the revocation determination. CMS Ex. 1
at 1; CMS Ex. 23. On May 13, 2015, the CMS administrative contractor upheld its initial
determination. Petitioner (P.) Ex. H.

Petitioner timely requested a hearing. On August 7, 2015, I issued an Acknowledgment
and Pre-Hearing Order (Order) establishing deadlines for the submission of pre-hearing
exchanges. In accordance with the Order, CMS filed its pre-hearing exchange, which
included a motion for summary judgment and brief, and 23 exhibits (CMS Exs. 1-23).
Petitioner filed an initial brief and opposition to summary judgment (P. Br.), and nine
exhibits (P Exs. A-I). CMS then filed a reply brief (CMS Reply Br.).

IL. Issues
This case presents three issues:
1. Whether CMS is entitled to summary judgment;

2. Whether CMS had a legitimate basis to revoke Petitioner’s Medicare
enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10); and

3. Whether Petitioner was prejudiced by CMS’s failure to comply with his
discovery requests.
Il. Jurisdiction

I have jurisdiction to hear and decide this case. See 42 C.F.R. §§ 498.3(b)(17),
498.5(1)(2); see also 42 U.S.C. § 1395ec(j)(8).

IV. Findings of Fact, Conclusions of Law, and Analysis’

The Social Security Act authorizes the Secretary of Health and Human Services
(Secretary) to establish regulations governing the enrolling of providers and suppliers in
the Medicare program. 42 U.S.C. § 1395cc(j)(1)(A). The Secretary promulgated
enrollment regulations in 42 C.F.R. part 424, subpart P. See 42 C.F.R. §§ 424.500-.570.
The regulations provide CMS with the authority to revoke the billing privileges of an
enrolled provider or supplier if CMS determines that a provider or supplier violated a
provision in 20 C.F.R. § 424.535(a).

A provider or supplier may request reconsideration of an initial determination to revoke
his or her billing privileges. 42 C.F.R. §§ 498.5(/)(1), 498.22(a). If dissatisfied with the
reconsidered determination, the provider or supplier may request a hearing before an
Administrative Law Judge (ALJ). Id. § 498.5(/)(2). When appropriate, ALJs may decide
a case arising under 42 C.F.R. part 498 by summary judgment. Livingston Care Ctr. v.
U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 172 (6th Cir. 2004) (citing
Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743 (6th Cir. 2004)). “Matters
presented to the ALJ for summary judgment will follow Rule 56 of the Federal Rules of
Civil Procedure and federal case law . . . .”. Civil Remedies Division Procedures § 19(a).
As stated by the United States Supreme Court:

Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment ‘shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’
By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

' My findings of fact and conclusions of law are set forth in italics and bold font.
To determine whether there are genuine issues of material fact for an in-person hearing,
the ALJ must view the evidence in the light most favorable to the non-moving party,
drawing all reasonable inferences in that party’s favor.

I. Summary judgment is appropriate.

Petitioner disputes some of CMS’s assertions that the requested documents were not
provided and Petitioner disputes whether he was required to provide some of the
requested documents. P. Ex. I. However, it is undisputed that some of the requested
documents were not provided, and that Petitioner was required to provide those
documents. Petitioner’s undisputed failure to provide some of the requested documents
provides a basis for summary judgment because Petitioner’s arguments related to them
are legal in nature.

As summarized above, a CMS contractor requested the medical documentation for 40
beneficiaries. In its initial determination, the CMS contractor stated that Petitioner did
not provide any medical documentation for two beneficiaries and that Petitioner provided
incomplete medical documentation for 22 beneficiaries. CMS Ex. | at 3. Now, in its
motion for summary judgment, CMS asserts that Petitioner’s billing privileges were
properly revoked based on a shortened list of beneficiaries for whom CMS asserts that
Petitioner did not provide all of the requested documentation. CMS submitted a chart
that specifies the documents Petitioner failed to provide related to 18 beneficiaries. CMS
Br. at 10-11 (Appendix). Further, for purposes of summary judgment, CMS accepted
that Petitioner did not treat the two beneficiaries for whom Petitioner provided no
documentation. See CMS Reply Br. at 2 n.1.

In his reconsideration request, Petitioner asserted that he was not provided a definite
statement of the requested documents that CMS’s contractor determined were missing.
Instead, Petitioner argues that the CMS contractor instructed Petitioner “to go on a
fishing expedition to ‘look through the 40 charts’ it requested to self-determine whatever
concluded deficient practices exist... .”” CMS Ex. 23 at 5. Petitioner also asserted that
the CMS contractor did not comply with Petitioner’s requests for more information
regarding the missing documents on which the CMS contractor based the revocation.
CMS Ex. 23 at 9-10. In his hearing request, Petitioner stated that he would submit
recently obtained evidence “confirming that it did submit the requested patient
information ....” Hearing Request at 3. In his pre-hearing exchange Petitioner
responded to CMS’s chart that specified the documents Petitioner allegedly failed to
provide to the CMS contractor for 18 beneficiaries. P. Ex. I. However, Petitioner did not
submit additional substantive evidence related to the 18 beneficiaries identified by CMS
and failed to account for all of the missing documents identified by CMS in its chart.
Therefore, I conclude that Petitioner does not dispute that it failed to submit to the CMS
contractor all unaccounted for documentation identified by CMS in the appendix to its
brief in this case.
For purposes of summary judgment, I draw all reasonable inferences in favor of Dr.
Edouard. I accept as true that at the lower levels of appeal, the CMS contractor did not
provide a statement of all of the specific documents missing from Petitioner’s submission
to CMS, despite his requests for such a statement. P. Br. at 13-14. I also accept as true
that Petitioner instructed his prior attorney to comply with the CMS contractor’s requests,
and that Petitioner provided access to all documentation in his possession. P. Br. at 8, 14.
I further accept as true that throughout this process Petitioner attempted to provide CMS
with all requested documentation. CMS Br. at 13.

2. CMS was authorized to revoke Petitioner’s Medicare enrollment and
billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) because
Petitioner did not dispute that he failed to maintain and/or provide
CMS with copies of two plans of care and three verbal orders for
beneficiaries who were certified by Petitioner as needing home health
services.

In April 2014, an investigator with a CMS contractor interviewed Dr. Edouard regarding
patients for whom Dr. Edouard had ordered durable medical equipment and home health
services. CMS Ex. 2; P. Ex. B. On October 15, 2014, the CMS contractor requested by
letter “any and all documentation that supports the billed services” for 40 beneficiaries
for whom Petitioner had ordered/certified home health services. CMS Ex. 3. The letter
provided a list of the beneficiaries in question as well as a non-exhaustive list of the types
of documents that Petitioner was required to provide for each of the beneficiaries,
including “Plans of Care” and “Verbal Orders.” CMS Ex. 3 at 1, 4.

On November 17, 2014, Petitioner’s attorney submitted documents in response to CMS’s
request, noting that two of the named beneficiaries neither appeared in Petitioner’s
electronic medical records nor in Petitioner’s stored patient charts. CMS Ex. 4 at 1.
Nevertheless, Petitioner submitted over 2,000 pages of documents to the CMS contractor
related to 38 beneficiaries. CMS Exs. 4-22. The CMS contractor determined that
Petitioner did not submit all of the documents requested for all of the beneficiaries in
question and revoked Petitioner’s enrollment and billing privileges. CMS Ex. | at 1.

CMS may revoke a provider’s or supplier’s billing privileges if:

(i) The provider or supplier did not comply with the
documentation or CMS access requirements specified in
§ 424.516(f) of this subpart.

(ii) A provider or supplier that meets the revocation criteria
specified in paragraph (a)(10)(i) of this section, is subject
to revocation for a period of not more than 1 year for
each act of noncompliance.
42 C.F.R. § 424.535(a)(10); see also 42 U.S.C. § 1395u(h)(9). Of importance in this
case, 42 C.F.R. § 424.516(f)(2) states:

(i) A physician who orders/certifies home health services
and the physician or, when permitted, other eligible
professional who orders items of DMEPOS or clinical
laboratory or imaging services is required to —

(A) Maintain documentation (as described in
paragraph(f)(2)(ii) of this section) for 7 years from
the date of the service; and

(B) Upon request of CMS or a Medicare contractor,
to provide access to that documentation (as
described in paragraph (f)(2)(ii) of this section).

(ii) The documentation includes written and electronic

documents (including the NPI of the physician who
ordered/certified the home health services and the NPI
of the physician or, when permitted, other eligible
professional who ordered the items of DMEPOS or the
clinical laboratory or imaging services) relating to
written orders or certifications or requests for
payments for items of DMEPOS and clinical laboratory,
imaging, and home health services.

42 C.F.R. § 424.516(f)(2) (emphasis added).

Even if I accept every dispute that Petitioner raised in his pre-hearing exchange with
regard to the specific list of documents that CMS alleges that Petitioner failed to provide
(compare CMS Br. at 10-11 with P. Ex. I), Petitioner still did not dispute that he failed to
provide two plans of care and documentation of three verbal orders for home health
services. The following is the list of undisputed documents that Petitioner failed to
provide to CMS:

1. Beneficiary A.C.: Petitioner did not provide a verbal order for the February 19,
2013 plan of care. See CMS Br. at 10; P. Ex. Tat 1.

2. Beneficiary I.R.: Petitioner did not provide a plan of care for April 11, 2013. See
CMS Br. at 10; P. Ex. I at 2.

3. Beneficiary A.R.: Petitioner did not provide a verbal order for October 7, 2011.
See CMS Br. at 10; P. Ex. I at 2.
4. Beneficiary G.S.: Petitioner did not provide either a plan of care or a verbal order
for August 15, 2012. See CMS Br. at 11; P. Ex. I at 3 (acknowledging the plan of
care may have been lost during transition to electronic medical records).

I agree with the conclusion in Carlos E. Fossi, M.D., DAB CR3294, at 11 (2014), that the
statutory requirement under 42 U.S.C. § 1395x(m), i.e., that home health services be
provided in accordance with a plan of care, means “that a plan of care is related to an
order for home health services, and is a document that must be maintained by a physician
certifying or recertifying home health services and made accessible to CMS upon
request.” See also 42 C.F.R. § 424.22(a)(1)(iii). By extension, I also conclude that when
a physician does not initially sign a plan of care, a record of a physician’s verbal order for
the home health services, as required by 42 C.F.R. § 409.43, must also be maintained and
made accessible to CMS on request.

When CMS’s contractor determined that Dr. Eduoard failed to provide all of the
requested documentation, including the above-referenced plans of care and records of
verbal orders, it was then authorized to revoke Dr. Eduoard’s Medicare enrollment and
billing privileges. 42 C.F.R. § 424.535(a)(10). Here, there is no dispute that Petitioner
did not provide these five requested documents to CMS. CMS Br. 10-11; P Ex. I.
Further, Dr. Edouard did not assert that he was not required to provide these five
requested documents. Therefore, CMS had a legitimate basis to revoke Petitioner’s
Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).

3. Petitioner did not avail himself of the opportunity to file a corrective
action plan (CAP) with the CMS contractor, and Petitioner received
sufficient notice of the factual basis for revocation to defend himself
during this de novo proceeding.

Petitioner argues that the CMS contractor failed to provide specific information
concerning the factual basis for the revocation, which impeded his ability to create a CAP
and defend himself against revocation. For the reasons stated below, I reject Petitioner’s
argument.

The January 30, 2015 initial determination provided Petitioner with notice that he had 30
days to file a CAP with the CMS contractor. CMS Ex. | at 3. It appears that Petitioner
unsuccessfully attempted to obtain information from the CMS contractor following the
initial determination to revoke Petitioner’s Medicare enrollment and billing privileges.
P. Ex. D; P. Ex. E; P. Ex. G at 3. Petitioner argues that the lack of responses from the
CMS contractor to his discovery requests resulted in Petitioner being unable to file a
CAP.
As an initial matter, supplier revocation appeals from the reconsidered determination
stage through Departmental Appeals Board review are governed by the procedures set
forth in 42 C.F.R. part 498 (42 C.F.R. §§ 405.803(a), 424.545(a), 498.5(/)). Those
regulations “do not expressly provide for the use of . . . pre-hearing discovery tools
available under the Federal Rules of Civil Procedure.” Oaks of Mid City Nursing and
Rehab. Ctr., DAB No. 2375, at 32 (2011). Therefore, CMS was under no obligation to
respond to Petitioner’s discovery demands.

Although Petitioner did not obtain additional information from the CMS contractor
concerning the factual basis for the revocation, Petitioner failed to file a timely CAP
based on the information provided to Petitioner with the initial determination. Therefore,
Petitioner lost the opportunity to file a CAP. In any event, review of a CAP is not within
an ALJ’s jurisdiction. See 42 C.F.R. § 405.809 (2014); DMS Imaging, Inc., DAB No.
2313, at 5 (2010).

Petitioner also argues that the CMS contractor’s alleged failure to provide sufficient
notice regarding the basis for revocation prevented Petitioner from setting forth an
effective defense. However, Petitioner conceded that, in the present proceeding, CMS’s
appendix to its pre-hearing brief “lists alleged deficient findings with particularity. It is
exactly what Undersigned requested multiple times.” P. Br. at 14. As explained in the
following quote, CMS’s use of its brief (CMS Br. at 10-11) to clarify its exact factual
position as to Petitioner’s alleged violation is sufficient to provide Petitioner with notice
of the basis for CMS’s revocation.

As we outlined in the Case Background section, CMS
explained and clarified the factual and legal bases for the
revocation in briefs supporting its motion for summary
disposition. The Board has held that a federal agency may
clarify its reasons for a challenged determination, or assert
new reasons for that determination, during the ALJ
proceeding as long as the non-federal party has adequate
notice of the reasons and a reasonable opportunity to respond
during that proceeding.

To the extent that Petitioner is claiming that the revocation
should be overturned because he lacked sufficient notice of
the basis of CMS's revocation determination at the
reconsideration stage . . . we stress that Petitioner
subsequently received a de novo hearing before the ALJ
concerning the validity of the revocation determination. In
general, the ALJ proceeding is not an appellate or quasi-
appellate review of the adequacy of the federal agency's
decision-making or review process. Rather, the ALJ hearing
under 42 C.F.R. Part 498 is a de novo proceeding in which
the ALJ determines the legality of the challenged
determination based on the evidence presented in that
proceeding.

Fady Fayad, M.D., DAB No. 2266, at 10-11 (2009) (citations omitted). I conclude that
CMS’s pre-hearing brief provided Petitioner with sufficient notice of the documents
Petitioner failed to provide to CMS, which formed the basis of the revocation. Further,
Petitioner had plenty of time to respond to the additional information provided in CMS’s
brief, filed on September 11, 2015, because Petitioner ultimately filed his pre-hearing
brief more than three and a half months later on December 31, 2015, and his proposed
exhibits nearly four months later on January 4, 2016. Therefore, Petitioner received a full
opportunity to defend himself in this proceeding.

V. Conclusion

For the reasons explained above, I grant summary judgment in favor of CMS.
Consequently, I affirm CMS’s determination to revoke Petitioner’s Medicare enrollment
and billing privileges effective March 1, 2015.

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Alan D. Mendelsohn, M.D.,
(NPI: 1053308460),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-15
Decision No. CR4557

Date: March 24, 2016

DECISION

Petitioner, Alan M. Mendelsohn, M.D., is a physician, practicing as an ophthalmologist
in the State of Florida, who participated in the Medicare program until December 1,
2010, when he voluntarily terminated his enrollment. On December 9, 2010, he pled
guilty in federal court to felony conspiracy to commit wire fraud, file false tax returns,
and make false statements. He recently reapplied for program enrollment but, because of
his felony conviction, the Centers for Medicare & Medicaid Services (CMS) denied his
application. Petitioner now appeals the denial.

I find that CMS was authorized to deny Petitioner Mendelsohn’s reenrollment application
because, within the ten years preceding his filing, he was convicted of a felony that CMS
determined is detrimental to the best interests of the Medicare program and its
beneficiaries. I therefore affirm CMS’s determination.
Background

By letter dated June 29, 2015, the Medicare contractor, First Coast Service Options, Inc.,
denied Petitioner Mendelsohn’s application for reenrollment in the Medicare program.
CMS Ex. 5. As the letter explains, the contractor acted pursuant to 42 C.F.R.

§ 424.530(a)(3)(i)(B) because Petitioner was convicted of a felony that CMS determined
is detrimental to the best interests of the program and its beneficiaries.

Petitioner requested reconsideration. In a reconsidered determination, dated August 6,
2015, the contractor upheld the denial, citing Petitioner’s June 1, 2011 conviction for
conspiracy to commit wire fraud (18 U.S.C. § 371). CMS Ex. 10.' Petitioner timely
appealed and that appeal is now before me.

CMS moves for summary judgment, which Petitioner opposes.

Because CMS presents no witnesses and has not asked to cross-examine Petitioner’s
witnesses (whose written direct testimony is in the record), an in-person hearing would
serve no purpose. See Acknowledgment and Pre-hearing Order at 5 ({f 8, 9) and 6

({ 10). The matter should therefore be decided based on the written record, without
considering whether the standards for summary judgment are satisfied. However,
Petitioner asks to cross-examine the hearing officer who issued the reconsidered
determination. Petitioner wants “to inquire about Ms Waldron’s review and analysis of
Petitioner’s enrollment application, as well as her qualifications to determine whether
Petitioner’s criminal history is a basis to deny Petitioner’s application pursuant to 42
C.F.R. § 424.530(a)(3)(i)(B).” P. Opp. to CMS’s Motion for Summary Judgment at 8.

I deny Petitioner’s request to “cross-examine” the hearing officer. First, | am authorized
to receive into evidence testimony and documents that are “relevant and material.” 42
C.F.R. § 498.60(b)(1). Neither the hearing officer’s qualifications nor her underlying
“review and analysis” are relevant or material here. The parties agree that, within the last
ten years, Petitioner Mendelsohn was convicted of a felony. The sole question before me
is purely legal: whether Petitioner Mendelsohn’s felony conviction is “detrimental to the
best interests of the Medicare program and its beneficiaries” within the meaning of
section 424.530(a)(3). If'so, CMS acted within its discretion to deny his enrollment
application, and I must affirm, without regard to the process by which the hearing officer
reached her correct conclusion. See Fady Fayad, M.D., DAB No. 2266 (2009), aff'd,
Fayad v. Sebelius, 803 F. Supp. 2d 699 (E.D. Mich. 2011) (holding that the “ALJ

' In the reconsidered determination, the contractor quotes the regulatory language that
“CMS may deny” an enrollment application. CMS Ex. 10 at 1. I am satisfied that the
contractor consciously exercised its discretion to deny enrollment, and Petitioner has not
suggested otherwise.

proceeding is not an appellate or quasi-appellate review of the adequacy of the federal
agency’s decision-making process. Rather, the ALJ hearing under 42 C.F.R. Part 498 is a
de novo proceeding in which the ALJ determines the legality of the challenged
determination based on the evidence presented in that proceeding.”).”

Moreover, the hearing officer’s deliberations, like those of other administrative decision-
makers and, for that matter, judges, have long been protected. U.S. v. Morgan, 313 U.S.
409, 422 (1941) (holding that “it was not the function of the court to probe the mental
processes of the Secretary [of Agriculture]. ... Just as a judge cannot be subjected to
such a scrutiny . . . so the integrity of the administrative process must be equally
respected.”). The hearing officer simply cannot be compelled to testify.

Exhibits. CMS has submitted 12 exhibits (CMS Exs. 1-12). Petitioner objects to two of
CMS’s proposed exhibits: CMS Exs. 11 and 12. They are: 1) the contractor’s August 7,
2015 acknowledgment that it received Petitioner’s July 31, 2015 application for Medicare
enrollment; and 2) the contractor’s October 8, 2015 letter returning the application
because it was submitted before the time to appeal his prior application had expired.
These documents were filed well after the application (submitted April 1, 2015) and
denial (dated June 29, 2015) that are the subjects of this appeal. CMS Exs. 3, 4, 5. I
agree that the documents are neither relevant nor material, and I decline to admit them.

Petitioner has submitted thirteen exhibits (P. Exs. 1-13). CMS objects to P. Exs. 7, 8, and
13. P. Exs. 7 and 8 are “composite exhibits,” consisting of hundreds of letters attesting to
Petitioner’s “professionalism, judgment, and integrity,” written by patients and
colleagues to the sentencing judge. See P. Response to CMS Objections at 2. CMS
objects to their admission, pointing out that Petitioner’s enrollment application was
denied because he was convicted of a financial crime, wholly unrelated to his medical
practice. CMS Objections to P.’s Exhibits at 2-3. I would consider the letters irrelevant
under any circumstances, even if Petitioner had been convicted of crimes related to his
medical practice. By law, a conviction on any one of the listed felonies (as well as others
since the list is not exhaustive) means that CMS may determine that the convict’s
program participation is detrimental to the best interests of the program and its
beneficiaries. The good opinions of his colleagues and patients do not alter that fact. I
therefore decline to admit the composite exhibits.

P. Ex. 13 is a December 15, 2015 letter from Blue Cross Blue Shield of Florida’s
Medicare Advantage program, advising Petitioner that his Medicare patients will not be
eligible for Medicare Part D benefits unless he is enrolled in the Medicare program.
Petitioner claims that the letter is relevant to show that, unless enrolled, he will not be

> For my discussion of why Fayad was soundly decided and should be followed, see
Kimberly Bergeron NP, et al., DAB CR3438 at 8-14 (2014); Gibraltar Healthcare
Supplies, LLC, DAB CR3422 at 4-9 (2014).
able to write prescriptions for the patients on whom he operates. P. Response to CMS
Objections at 3. That Petitioner may not enroll in the Medicare program obviously has
consequences affecting his Medicare-eligible patients, but that fact is irrelevant to the
question of whether his conviction falls within the ambit of section 424.530(a)(3).
Because the letter is irrelevant, I decline to admit it. See Fayad, DAB No. 2266 at 16
(precluding my considering factors such as the potential impact on Medicare
beneficiaries).

I therefore admit CMS Exs. 1-10 and P. Exs. 1-6 and 9-12.
Discussion

CMS may deny Petitioner enrollment in the Medicare program because,
within the last ten years, he was convicted of conspiracy to commit wire
Sraud, file false tax returns, and make false statements, which are felonies
that CMS finds detrimental to the best interests of the Medicare program
and its beneficiaries.

Statute and regulations. CMS may deny a provider’s or supplier’s enrollment in the
Medicare program if, within the preceding ten years, he was convicted of a felony offense
that CMS “has determined to be detrimental to the best interests of the program and its
beneficiaries.” 42 C.F.R. § 424.530(a)(3); see also Social Security Act (Act)

§§ 1842(h)(8) (authorizing the Secretary to deny enrollment to a physician who has been
convicted of a felony offense that the Secretary has determined is “detrimental to the best
interests of the program or program beneficiaries”) and 1866(b)(2)(D) (authorizing the
Secretary to deny enrollment after she ascertains that the provider has been convicted of a
felony that she “determines is detrimental to the best interests of the program or program
beneficiaries”). Offenses for which billing privileges may be denied include financial
crimes such as “extortion, embezzlement, income tax evasion, insurance fraud, and other
similar crimes,” as well as any felonies “outlined in section 1128 of the Act.” 42 C.F.R.
§ 424.530(a)(3)(i)(B), (D) (emphasis added).

Petitioner’s felony offense. In an information dated December 9, 2010, Petitioner
Mendelsohn was charged with one felony count of conspiracy to commit wire fraud, file
false tax returns, and make false statements, in violation of 18 U.S.C. § 371. CMS Ex. 6.
The information describes Petitioner Mendelsohn as a lobbyist and political campaign
consultant, who, with others, set up several political action committees (PACs) for which
they raised money. CMS Ex. 6 at 1. Among the specific allegations to which he pled

guilty:

* I make this one finding of fact/conclusion of law to support my decision.
e Petitioner Mendelsohn filed false federal income tax returns for the years 2003
through 2006, in that he “willfully failed to include material amounts of income”
from his medical practice, lobbying services, and money he diverted from the
PACs, in violation of federal law (26 U.S.C. § 7206(1)). CMS Ex. 6 at 3
(Information { 9a);

¢ to conceal the income he paid to himself and others from the PACs, he
“mischaracterized and inaccurately reported” or “falsely reported” to the Internal
Revenue Service the actual recipients of the funds paid. CMS Ex. 6 at 3
(Information 9b);

e Petitioner made false representations via wire transmission in interstate commerce
to his lobbying clients to induce them to make PAC contributions and other
donations, in violation of 18 U.S.C. §§ 1343 and 2. CMS Ex. 6 at 3 (Information
1 9e);

e in order to conceal and perpetuate the conspiracy, he made false statements to
federal agents in violation of 18 U.S.C. § 1001(a)(2). CMS Ex. 6 at 4
(Information ¥ 9d).

The information details the manner and means by which Petitioner Mendelsohn carried
out his crimes, and it details his overt acts. CMS Ex. 6 at 4-8. According to the
information, he failed to report to the IRS approximately $618,770 in income, and he
caused $82,000 to be paid to an individual associated with a state senator for the state
senator’s benefit. CMS Ex. 6 at 8-9 (Information §§ 19h and i).

On December 9, 2010, Petitioner Mendelsohn pled guilty to the charge. In his plea
agreement, he conceded that “the objects of the conspiracy charged” included filing a
false tax return in violation of 26 U.S.C. § 7206(1), wire fraud (18 U.S.C. § 1343), and
making false statements to a federal agent (18 U.S.C. § 1001). CMS Ex. 7 at 1-2 (Plea
Agreement § 2). He specifically admitted that he knowingly filed a false tax return for
the years charged; that he signed the returns under penalties of perjury; and that he acted
willfully. CMS Ex. 7 at 2-3 (Plea Agreement {ff 2a, b, and c). See CMS Ex. 7 at 17-23
for list of the facts that Petitioner specifically admitted.

The court accepted the guilty plea and sentenced Petitioner to four years in prison
followed by two years of supervised release. CMS Ex. 8 at 19-21. The court also
imposed a $10,000 fine. CMS Ex. 8 at 23.

Notwithstanding these undisputed facts surrounding his conviction, Petitioner maintains
that his Medicare enrollment should not be denied. He points out that his conviction did
not relate to the practice of medicine, the “delivery of health care items or services,” or a
federal or state health care program, which is true, but omits a major category of cases
listed in section 424.530(a)(3): non-program-related financial crimes. See Fayad, DAB
No. 2266 at 15 (holding that CMS may revoke Medicare enrollment based on a felony
conviction that is unrelated to health care or a health care program).

Ultimately recognizing that a disqualifying crime need not be program or practice-
related, Petitioner also argues that his was not among the financial crimes listed in the
regulation. He makes much of what he regards as a distinction between his crime,
“conspiracy to commit tax evasion,” and tax evasion itself, which, he acknowledges,
would subject him to enrollment denial. But in pleading guilty, Petitioner admitted that
e filed false tax returns and deliberately concealed from the IRS significant income. If
is crime is not tax evasion (and I think it is), it is so close as to be virtually
indistinguishable from it and must be considered an “other similar crime,” for which
CMS may deny his enrollment. The Departmental Appeals Board and federal courts
ave affirmed CMS’s exercise of its discretion to revoke or deny enrollment based on
felony convictions that were further removed from those listed in the regulation. In
Abdul Razzaque Ahmed, M.D., the Board (and district court) agreed that obstruction of a
criminal health care fraud investigation was “similar to” insurance fraud, for which the
physician’s Medicare enrollment could be revoked. DAB No. 2261 (2009), aff'd, Ahmed
v. Sebelius, 710 F. Supp. 167, 174 (D. Mass. 2010). In Fady Fayad, where a physician
falsified immigration forms, the Board noted that the petitioner’s crime was detrimental
to the Medicare program “because it evidenced a lack of trustworthiness in his dealings
with the federal government.” DAB No. 2266 at 17, aff'd, Fayad v. Sebelius, 803 F.
Supp. 2d 699 (E.D. Mich. 2011). Similarly, here — where Petitioner lied to his lobbying
clients, to the federal agents, and to the IRS — his felony evidenced a lack of
trustworthiness, which would justify CMS’s determination even if the crime were not
specifically listed in the regulation.

Thus, under the plain language of the regulations, CMS may deny Petitioner’s Medicare
enrollment, and I need look no further into the underlying rationale for its actions.

Petitioner also argues that, because his felony does not “squarely fall within the
disqualifying offenses” listed in the regulation, the contractor should have conferred with
CMS so that CMS could decide the matter. In Petitioner’s view, only CMS can decide
whether his crimes were detrimental to the program. P. Response to CMS Objections at
4. In Fayad, the Board (and federal court) considered and rejected a similar argument,
finding that the Act authorizes CMS to sub-delegate to the Medicare contractors (private
insurance companies) its authority to deny or revoke Medicare enrollment. DAB No.
2266 at 17-20; 803 F. Supp. 2d at 706; see Act §§ 1842 (providing that administration of
Medicare Part B “shall be conducted through contracts with Medicare administrative
contractors under section 1874A”); 1874A (authorizing CMS to contract with “any
eligible entity to serve as a Medicare administrative contractor with respect to the
performance of any and all of the functions described in section 1874A(a)(4)”);
1874A(a)(4) (listing functions, including those “necessary to carry out the purpose of this
title.”); see also 42 C.F.R. § 405.803(b) (providing that reconsideration of a
determination to deny enrollment is handled by the CMS regional office or a contractor
hearing officer).

Conclusion

CMS may deny Petitioner Mendelsohn’s Medicare enrollment application because he
was convicted of felony that CMS determined is detrimental to the best interests of the
Medicare program and its beneficiaries. I therefore affirm CMS’s determination.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Lisa Neumiller, NP,

Petitioner,
v.

Centers for Medicare & Medicaid Services.
Docket No. C-15-4193
Decision No. CR4556
Date: March 23, 2016

DECISION

Petitioner, Lisa Neumiller, NP, appealed the determination establishing the effective date
of the reassignment of her billing privileges to Family Care Clinic, PC (FCC). I find that
Noridian Healthcare Solutions (Noridian), an administrative contractor for the Centers for
Medicare & Medicaid Services (CMS), properly determined that the earliest approvable
enrollment application that it received from FCC was on March 23, 2015, resulting in an
effective enrollment date for FCC of March 23, 2015, with retrospective billing starting
on February 21, 2015. Accordingly, Petitioner’s earliest assignment date must also be
February 21, 2015.

I. Background

The following facts are undisputed unless otherwise noted. Petitioner is a nurse
practitioner, who was previously enrolled in the Medicare program as a supplier. On or
about January 22, 2015, Noridian received an initial Medicare enrollment application
(Form CMS-855B) for FCC, a reassignment of benefits application (Form CMS-855R)
seeking to reassign Petitioner’s Medicare payments to FCC, and an application to direct
Medicare payments to a certain bank account (CMS-588 (EFT)). CMS Exhibits (Exs.) 1,
2, 3, 4. By facsimile transmission, on February 9, 2015, Noridian allegedly requested
additional information to process FCC’s applications from FCC’s designated contact
person using the facsimile number provided on both the CMS forms 855B and 885R.
CMS Br. at 7; CMS Ex. 5 at 4. On that same date, Noridian received a facsimile from
FCC’s contact containing some of the requested information. CMS Br. at 7; CMS Ex. 6.
On February 11, 2015, Noridian received a second fax from FCC’s contact that contained
some of the additional requested information. CMS Ex. 7. Noridian alleges the
facsimiles from FCC’s contact did not contain all the information Noridian requested for
Section 6 (Ownership Interest and/or Managing Control Information), Section 15
(Certification Statement), Section 17 (IRS generated supporting documents confirming
FCC’s legal business name and Tax Identification Number) and FCC did not include the
name of the contact person for the financial institution in Part III of the EFT. CMS Exs.
5, 6, 7, 8. On March 10, 2015, Noridian rejected FCC’s 855B enrollment application
because Noridian did not receive all the additional information it requested within 30
days of its request. CMS Ex. 8. On March 11, 2015, Noridian also rejected Petitioner’s
reassignment of billing privileges application because FCC, the group to which she was
attempting to reassign her billing privileges, was not yet enrolled in Medicare. CMS Ex.
9.

On March 23, 2015, Noridian received a new Medicare enrollment application (Form
CMS-855B) for FCC, a new Medicare reassignment of benefits application (Form CMS-
855R) again seeking to reassign Petitioner’s Medicare payments to FCC, and a new EFT
form. CMS Exs. 10, 11, 12. On April 16, 2015, Noridian requested additional
information, which Petitioner timely supplied within the 30 day timeframe. CMS Exs.
13, 14. On May 11, 2015, Noridian notified FCC that its effective date was March 25,
2015, with retrospective billing privileges beginning January 5, 2015. CMS Ex. 15.

On May 22, 2015, Noridian notified Petitioner that her effective date for reassigning her
benefits to FCC was March 16, 2015. CMS Ex. 20.

On May 28, 2015, Petitioner requested reconsideration and asked that Noridian change
her reassignment effective date to January 5, 2015, rather than March 16, 2015. CMS Ex.
16. On July 17, 2015, Noridian notified Petitioner’s representative that it corrected the
retrospective date for FCC to February 21, 2105, rather than January 5, 2015. CMS Ex.
17. Noridian explained it changed the retrospective date because it received FCC’s
application that was ultimately processed to completion on March 23, 2015, which only
allows for a retrospective billing date that is thirty days prior to that receipt date. CMS
Ex. 17. Also on July 17, 2015, Noridian issued an unfavorable reconsideration
determination notifying Petitioner that her request for a January 5, 2015 reassignment
effective date was denied because FCC was not an enrolled provider on that date. CMS
Ex. 18 at 2. However, the hearing officer granted Petitioner a reassignment effective date
of February 21, 2015, which was the new retrospective billing date that Noridian granted
FCC. CMS Ex. 18 at 2. On August 3, 2015, Noridian sent Petitioner a letter confirming
that her reassignment effective date was February 21, 2015. CMS Ex. 19.
Petitioner timely filed a request for hearing on September 11, 2015, and the case was
assigned to me for hearing and decision. I issued an Acknowledgment and Pre-Hearing
Order (Order) on October 13, 2015. With its pre-hearing brief (CMS Br.), CMS filed 20
proposed exhibits (CMS Exs. 1-20). With its pre-hearing brief (P. Br.), Petitioner filed
27 proposed exhibits (P. Exs. 1-27). In the absence of any objection, I admit CMS Exs.
1-20 and P. Exs. 1-27 into the record.

Neither CMS nor Petitioner listed any witnesses or filed any written direct testimony. I
find, therefore, that an in-person hearing in this case is unnecessary, and I issue this
decision on the full merits of the case based on the written record. Order at fj 10,11.

IL. Discussion
A. Issue

Whether Noridian, acting on behalf of CMS, properly established February 21,
2015, as the effective date of Petitioner’s reassignment of Medicare billing
privileges to FCC.

B. Findings of Fact and Conclusions of Law

1. Petitioner’s reassignment of her Medicare billing privileges to FCC
was dependent upon the Medicare enrollment of FCC.

The Social Security Act (Act) authorizes the Secretary of Health and Human Services
(Secretary) to promulgate regulations governing the enrollment process for providers
and suppliers. 42 U.S.C. §§ 1302, 1395cc(j). A provider or supplier seeking billing
privileges under the Medicare program must “submit enrollment information on the
applicable enrollment application. Once the provider or supplier successfully completes
the enrollment process . .. CMS enrolls the provider or supplier into the Medicare
program.” 42 C.F.R. § 424.510(a). CMS then establishes an effective date for billing
privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit
limited retrospective billing under 42 C.F.R. § 424.521.

For Medicare Part B claims, a beneficiary may assign his or her benefits to an enrolled
physician or non-physician supplier providing services to that beneficiary. 42 U.S.C.

§ 1395u(b)(3)(B)(ii). In certain circumstances, a supplier who has received an
assignment of benefits may reassign those benefits to an employer, or to an individual or
entity with which the supplier has a contractual arrangement. 42 U.S.C. § 1395u(b)(6);
42 C.F.R. § 424.80(b)(1)-(2). Reassignment of benefits may only occur between enrolled
suppliers. See Medicare Program Integrity Manual, CMS Pub. 100-08 (MPIM),

§ 15.5.20. A Medicare contractor, such as Noridian, cannot approve the reassignment
until the entity is enrolled. 42 C.F.R. § 424.502; MPIM §§ 15.1.2, 15.5.4.3B, 15.5.20
(“Both the individual practitioner and the eligible supplier must be currently enrolled (or
concurrently enrolling . . . ) in the Medicare program before the reassignment can take
place.””). The CMS-855R completed by Petitioner also advises applicants that “[b]oth the
individual practitioner and the eligible supplier must be currently enrolled (or
concurrently enrolling . . .) in the Medicare program before the reassignment can take
place.” CMS Ex. 2 at 2.

2. Noridian denied Petitioner’s first application because FCC was not
enrolled in Medicare, and Noridian had rejected FCC’s first
application for not timely providing requested information.

If an applicant does not provide a complete application, the CMS contractor contacts the
applicant and requests the necessary information. MPIM, Internet Only Manual 100-08,
Ch. 15, § 15.7.1.4.1. The CMS contractor may send the request for additional
information to the provider either via facsimile or email, and only one request is
necessary. Jd. CMS may reject an enrollment application if the applicant “fails to
furnish complete information within 30 calendar days from the date of the contractor
request for the missing information.” 42 C.F.R. § 424.525(a)(1).

On March 11, 2015, Noridian rejected Petitioner’s reassignment of billing privileges
application because FCC, the group to which she was attempting to reassign her billing
privileges, was not yet an enrolled entity. CMS Ex. 9. Although FCC was in the process
of enrolling, I find CMS has shown that it requested missing information from its
enrollment application, and FCC did not respond with the missing information within the
required 30 days.

Petitioner claims FCC never received Noridian’s February 9, 2015 facsimile request for
additional information in order to process FCC’s application. P. Br. at 1,3. According to
Petitioner, she did not know about the February 9th fax until August 11, 2015, when FCC
contacted Noridian by telephone. P. Br. at 3. Petitioner makes this claim without any
supporting affidavits or other evidence. However, a CMS exhibit indicates that FCC’s
contact received the February 9th fax. A receipt verification indicates that “Your fax has
been successfully sent to [FCC’s contact] at 70132412173” on February 9, 2015 at 1:00
pm. CMS Ex. 5 at 4; P. Ex. 27 at 4. Credible evidence also suggests that FCC’s contact
responded to Noridian’s February 9, 2015 fax by submitting some of the information
Noridian requested. CMS Exs. 6, 7 at 1.

Petitioner states that she was supposed to receive a letter requesting any further
information, not a facsimile. P. Br. at 1; P. Ex. 4 at 1. Under CMS’s internal procedures,
owever, Noridian properly exercised discretion to use a fax as a means of contacting
FCC’s contact in regards to FCC’s enrollment application. See MPIM §15.5.13 (“unless
the provider requests that the contractor communicate with only a specific individual
(e.g., an authorized official) or via specific means (e.g., only via the correspondence

address e-mail) — the contractor has the discretion to use the contact persons listed in
section 13 of the Form CMS-855 for all written and oral communications (e.g., mail,
e-mail, telephone) related to the provider’s Medicare enrollment.”).

An applicant does not have the right to appeal a rejected application. 42 C.F.R.
§ 424.525(d). To enroll in Medicare after an application is rejected, the applicant must
complete and submit a new enrollment application. 42 C.F.R. § 424.525(c).

3. Noridian enrolled FCC in the Medicare program on March 23, 2015,
with retrospective Medicare billing privileges starting February 21,
2015; therefore, the earliest billing date for Petitioner’s reassignment
of Medicare billing privileges to FCC is February 21, 2015.

The effective date for billing privileges of a medical practice like FCC is either the date
on which an application that is subsequently approved is filed or the date an enrolled
physician or non-physician practitioner began furnishing services at a new practice
location, whichever is later. 42 C.F.R. § 424.520(d). Suppliers are permitted to
retroactively bill for services when all program requirements have been met for up to 30
days prior to the effective date, if circumstances precluded enrollment in advance of
providing services to Medicare beneficiaries. See 42 C.F.R. § 424.521(a).

Although FCC and Petitioner first submitted CMS-855B and CMS-855R applications to
Noridian on January 22, 2015, those applications are not before me because Noridian
rejected them. When CMS processes a subsequent application to completion, it is the
filing date of that subsequent application that controls the effective date of enrollment.
Karthik Ramaswamy, DAB No. 2563 at 6 (2014); 71 Fed. Reg. 20,754, 20,759 (April 21,
2006).

On March 23, 2015, Noridian received a new Medicare enrollment application (Form
CMS-855B) for FCC, a new Medicare reassignment of benefits application (Form CMS-
855R) again seeking to reassign Petitioner’s Medicare payments to FCC, and a new EFT
form. CMS Exs. 10, 11, 12. On April 16, 2015, Noridian requested additional
information, which Petitioner timely supplied within the 30 day timeframe. CMS Exs.
13, 14.

A hearing officer ultimately granted Petitioner a reassignment effective date of February
21, 2015, which is the retroactive billing date that FCC was ultimately granted based on
the receipt date of the application that Noridian was able to process to approval. CMS
Exs. 18, 19.

I conclude therefore that Noridian correctly determined that February 21, 2015, was the
earliest effective date for Petitioner’s reassignment of billing privileges to FCC because
February 21, 2015, is the earliest date on which FCC could be considered eligible to
participate in the Medicare program.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Deborah A. Mertz, NP,

Petitioner,
v.

Centers for Medicare & Medicaid Services.
Docket No. C-15-4194
Decision No. CR4555
Date: March 23, 2016
DECISION

Petitioner, Deborah Mertz, NP, appealed the determination establishing the effective date
of the reassignment of her billing privileges to Family Care Clinic, PC (FCC). I find that
Noridian Healthcare Solutions (Noridian), an administrative contractor for the Centers for
Medicare & Medicaid Services (CMS), properly determined that the earliest approvable
enrollment application that it received from FCC was on March 23, 2015, resulting in an
effective enrollment date for FCC of March 23, 2015, with retrospective billing privileges
starting on February 21, 2015. Accordingly, Petitioner’s earliest assignment date must
also be February 21, 2015.

I. Background

The following facts are undisputed unless otherwise noted. Petitioner is a nurse
practitioner, who was previously enrolled in the Medicare program as a supplier. On or
about January 22, 2015, Noridian received an initial Medicare enrollment application
(Form CMS-855B) for FCC, a reassignment of benefits application (Form CMS-855R)
seeking to reassign Petitioner’s Medicare payments to FCC, and an application to direct
Medicare payments to a certain bank account (CMS-588 (EFT)). CMS Exhibits (Exs.)
1- 4. By facsimile transmission, on February 9, 2015, Noridian allegedly requested
additional information to process FCC’s applications from FCC’s designated contact
person using the facsimile number provided on both the CMS forms provided by FCC
and Petitioner (CMS-855B and CMS-885R). CMS Br. at 7; CMS Ex. 5. On that same
date, Noridian received a facsimile from FCC’s contact containing some of the requested
information. CMS Br. at 7; CMS Ex. 6. On February 11, 2015, Noridian received a
second facsimile from FCC’s contact that also contained some of the requested
information. CMS Ex. 7. Noridian alleges that the facsimiles of FCC’s contact did not
contain all the information Noridian requested for Section 6 (Ownership Interest and/or
Managing Control Information), Section 15 (Certification Statement), Section 17 (IRS
generated supporting documents confirming FCC’s legal business name and Tax
Identification Number), and FCC did not include the name of the contact person for the
financial institution in Part III of the EFT. CMS Exs. 5, 6, 7, 8. On March 10, 2015,
Noridian rejected FCC’s Form CMS-855B enrollment application because Noridian did
not receive all the additional information it requested within 30 days of its request. CMS
Ex. 8. On March 11, 2015, Noridian also rejected Petitioner’s reassignment of billing
privileges application because FCC, the group to which she was attempting to reassign
er billing privileges, was not yet enrolled in Medicare. CMS Ex. 9.

On March 23, 2015, Noridian received a new Medicare enrollment application (Form
CMS-855B) for FCC, and a new Medicare reassignment of benefits application (Form
CMS-855R) again seeking to reassign Petitioner’s Medicare payments to FCC and a new
EFT form. CMS Exs. 10, 11, 12. On April 14, 2015, Noridian requested additional
information, which Petitioner timely supplied within the 30 day timeframe. CMS Exs.
13, 14. On May 11, 2015, Noridian notified FCC that its effective date was March 25,
2015, with retrospective billing privileges effective January 5, 2015. CMS Ex. 16. On
May 8, 2015, Noridian notified Petitioner that her effective date for reassigning her
benefits to FCC was March 16, 2015. CMS Ex. 15.

On May 28, 2015, Petitioner requested reconsideration and asked that Noridian change

er reassignment effective date to January 5, 2015, rather than March 16, 2015. CMS Ex.
17. On July 17, 2015, Noridian notified Petitioner’s representative that it corrected the
retrospective date for FCC to February 21, 2105, rather than January 5, 2015. CMS Ex.
18. Noridian explained it changed the retrospective date because it received FCC’s
application that was ultimately processed to completion on March 23, 2015, which only
allows for a retrospective billing date that is 30 days prior to that receipt date. CMS Ex.
18. Also on July 17, 2015, Noridian issued an unfavorable reconsideration determination
notifying Petitioner that her request for a January 5, 2015 reassignment effective date was
denied because FCC was not an enrolled provider on that date. CMS Ex. 19 at 2.
However, the hearing officer granted Petitioner a reassignment effective date of February
21, 2015, which was the new retrospective billing date that Noridian granted to FCC.
CMS Ex. 19 at 2. On August 3, 2015, Noridian sent Petitioner a letter confirming that
her reassignment effective date was February 21, 2015. CMS Ex. 20.

Petitioner timely filed a request for hearing on September 11, 2015, and the case was
assigned to me for hearing and decision. I issued an Acknowledgment and Pre-Hearing
Order (Order) on October 13, 2015. With its prehearing brief (CMS Br.), CMS filed 20
proposed exhibits (CMS Exs. 1-20). With its prehearing brief (P. Br.), Petitioner filed 27
proposed exhibits (P. Exs. 1-27). In the absence of any objection, I admit CMS Exs. 1-20
and P. Exs. 1-27 into the record.

Neither CMS nor Petitioner listed any witnesses or filed any written direct testimony. I
find, therefore, that an in-person hearing in this case is unnecessary, and I issue this
decision on the full merits of the case based on the written record. Order at fj 10, 11.

IL. Discussion
A. Issue

Whether Noridian, acting on behalf of CMS, properly established February 21,
2015 as the effective date of Petitioner’s reassignment of Medicare billing
privileges to FCC.

B. Findings of Fact and Conclusions of Law

1. Petitioner’s reassignment of her Medicare billing privileges to FCC
was dependent upon the Medicare enrollment of FCC.

The Social Security Act (Act) authorizes the Secretary of Health and Human Services
(Secretary) to promulgate regulations governing the enrollment process for providers
and suppliers. 42 U.S.C. §§ 1302, 1395cc(j). A provider or supplier seeking billing
privileges under the Medicare program must “submit enrollment information on the
applicable enrollment application. Once the provider or supplier successfully completes
the enrollment process . .. CMS enrolls the provider or supplier into the Medicare
program.” 42 C.F.R. § 424.510(a). CMS then establishes an effective date for billing
privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit
limited retrospective billing under 42 C.F.R. § 424.521.

For Medicare Part B claims, a beneficiary may assign his or her benefits to an enrolled
physician or non-physician supplier providing services to that beneficiary. 42 U.S.C.

§ 1395u(b)(3)(B)(ii). In certain circumstances, a supplier who has received an
assignment of benefits may reassign those benefits to an employer, or to an individual or
entity with which the supplier has a contractual arrangement. 42 U.S.C. § 1395u(b)(6);
42 C.F.R. § 424.80(b)(1)-(2). Reassignment of benefits may only occur between enrolled
suppliers. See Medicare Program Integrity manual, CMS Pub. 100-08 (MPIM)

§ 15.5.20. A Medicare contractor, such as Noridian, cannot approve the reassignment
until the entity is enrolled. 42 C.F.R. § 424.502; MPIM §§ 15.1.2, 15.5.4.3B, 15.5.20
(“Both the individual practitioner and the eligible supplier must be currently enrolled (or
concurrently enrolling . . . ) in the Medicare program before the reassignment can take
place”). The CMS-855R completed by Petitioner also advises applicants that “[b]oth the
individual practitioner and the eligible supplier must be currently enrolled (or
concurrently enrolling . . .) in the Medicare program before the reassignment can take
place.” CMS Ex. 2 at 2.

2. Noridian denied Petitioner’s first reassignment application to FCC because
FCC was not enrolled in Medicare, and Noridian had rejected FCC’s first
application for not timely providing requested information.

If an applicant does not provide a complete application, the CMS contractor contacts the
applicant and requests the necessary information. MPIM § 15.7.1.4.1. The CMS
contractor may send the request for additional information to the provider either via
facsimile or email, and only one request is necessary. Jd. CMS may reject an enrollment
application if the applicant “fails to furnish complete information within 30 calendar days
from the date of the contractor request for the missing information.” 42 C.F.R.

§ 424.525(a)(1).

On March 11, 2015, Noridian rejected Petitioner’s reassignment of billing privileges
application because FCC, the group to which she was attempting to reassign her billing
privileges, was not yet an enrolled entity. CMS Ex. 9. Although FCC was in the process
of enrolling, I find CMS has shown that it requested missing information from its
enrollment application, and FCC did not respond with the missing information within the
required 30 days.

Petitioner claims FCC never received Noridian’s February 9, 2015 facsimile request for
additional information in order to process FCC’s application. P. Br. at 1,3. According to
Petitioner, she did not know about the February 9" facsimile until August 11, 2015, when
FCC contacted Noridian by telephone. P. Br. at 3. Petitioner makes this claim without
any supporting affidavits or other evidence. However, a CMS exhibit indicates that
FCC’s contact received the February 9" facsimile. A receipt verification indicates that
“Your fax has been successfully sent to [FCC’s contact] at 70132412173” on February 9,
2015 at 1:00 pm. CMS Ex. 5 at 4; P. Ex. 27 at 4. Credible evidence also suggests that
FCC’s contact responded to Noridian’s February 9, 2015 facsimile by submitting some of
the information Noridian requested. CMS Exs. 6, 7 at 1.

Petitioner states that she was supposed to receive a letter requesting any further
information, not a facsimile. P. Br. at 1; P. Ex. 4 at 1. Under CMS’s internal procedures,
however, Noridian properly exercised discretion to use a facsimile as a means of
contacting FCC’s contact in regards to FCC’s enrollment application. See MPIM
§15.5.13 (“unless the provider requests that the contractor communicate with only a
specific individual (e.g., an authorized official) or via specific means (e.g., only via the
correspondence address e-mail) — the contractor has the discretion to use the contact
persons listed in section 13 of the Form CMS-855 for all written and oral
communications (e.g., mail, e-mail, telephone) related to the provider’s Medicare
enrollment.”).

An applicant does not have the right to appeal a rejected application. 42 C.F.R.
§ 424.525(d). To enroll in Medicare after an application is rejected, the applicant must
complete and submit a new enrollment application. 42 C.F.R. § 424.525(c).

3. Noridian enrolled FCC in the Medicare program on March 23, 2015,
with retrospective Medicare billing privileges starting February 21,
2015; therefore, the earliest date for Petitioner’s reassignment of
Medicare billing privileges to FCC is February 21, 2015.

The effective date for billing privileges of a medical practice like FCC is either the date
on which an application that is subsequently approved is filed or the date an enrolled
physician or non-physician practitioner began furnishing services at a new practice
location, whichever is later. 42 C.F.R. § 424.520(d). Suppliers are permitted to
retroactively bill for services when all program requirements have been met for up to 30
days prior to the effective date, if circumstances precluded enrollment in advance of
providing services to Medicare beneficiaries. See 42 C.F.R. § 424.521(a).

Although FCC and Petitioner first submitted CMS-855B and CMS-855R applications to
Noridian on January 22, 2015, those applications are not before me because Noridian
rejected them. When CMS processes a subsequent application to completion, it is the
filing date of that subsequent application that controls the effective date of enrollment.
Karthik Ramaswamy, DAB No. 2563 at 6 (2014); 71 Fed. Reg. 20,754, 20,759 (April 21,
2006).

On March 23, 2015, Noridian received a new Medicare enrollment application (Form
CMS-855B) for FCC, a new Medicare reassignment of benefits application (Form CMS-
855R) again seeking to reassign Petitioner’s Medicare payments to FCC, and a new EFT
form. CMS Exs. 10, 11, 12. On April 16, 2015, Noridian requested additional
information, which Petitioner timely supplied within the 30 day timeframe. CMS Exs.
13, 14. A hearing officer ultimately granted Petitioner a reassignment effective date of
February 21, 2015, which is the retroactive billing date that FCC was ultimately granted
based on the receipt date of the application that Noridian was able to process to approval.
CMS Exs. 18, 19.
I conclude therefore that Noridian correctly determined that February 21, 2015, was the
earliest effective date for Petitioner’s reassignment of billing privileges to FCC because
February 21, 2015, is the earliest date on which FCC was permitted to retrospectively bill
for services as an enrolled supplier for the Medicare program.

/s/
Joseph Grow
Administrative Law Judge


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

Eugene Domenico, Ph.D.,
(OI File No. H-15-4-1211-9),

Petitioner,
v.

The Inspector General.
Docket No. C-16-07
Decision No. CR4554
Date: March 23, 2016
DECISION

The Inspector General (IG) of the United States Department of Health and Human
Services excluded Petitioner, Eugene Domenico, Ph.D., from participation in Medicare,
Medicaid, and all other federal health care programs based on Petitioner’s three
misdemeanor convictions related to fraud, theft, embezzlement, breach of fiduciary
responsibility, or other financial misconduct in connection with the delivery of any health
care item or service pursuant to section 1128(b)(1) of the Social Security Act (Act) (42
U.S.C. § 1320a-7(b)(1)). For the reasons discussed below, I conclude that the IG has a
basis for excluding Petitioner. | affirm the length of the four-year exclusion, effective
August 20, 2015; because there are two aggravating factors that justify the length of the
exclusion.

I. Background

In a letter dated July 31, 2015, the IG excluded Petitioner from participation in Medicare,
Medicaid, and all federal health care programs as defined in section 1128B(f) of the
Social Security Act (Act), 42 U.S.C. § 1320a-7b(f), for a minimum period of four years,
effective 20 days from the date of the letter. Petitioner Exhibit (P. Ex.) 1. The IG
explained that Petitioner’s exclusion was based on his “misdemeanor conviction as
defined in section 1128(i) (42 U.S.C. 1320a-7(i)), in the United States District Court for
the Western District of New York, of a misdemeanor offense related to fraud, theft,
embezzlement, breach of fiduciary responsibility, or other financial misconduct in
connection with the delivery of any health care item or service” pursuant to section
1128(b)(1) of the Act. P. Ex. 1 at 1. Under Section 1128(b)(1) of the Act, the IG may
exclude an individual who has been convicted of a “criminal offense consisting of a
misdemeanor related to fraud, theft, embezzlement, breach of fiduciary responsibility, or
other financial misconduct . . . in connection with the delivery of a health care item or
service.” 42 U.S.C. § 1320a-7(b)(1)(A)(i). In its July 31, 2015 letter, the IG informed
Petitioner that he imposed a lengthier four-year exclusion based on the presence of two
aggravating factors: 1.) The acts resulting in the convictions caused a financial loss of
more than $5,000, in that Petitioner was ordered to pay $100,286.35 in restitution, and 2.)
the New York State Office of the Medicaid Inspector General excluded Petitioner from
participation in the Medicaid program. P. Ex. | at 2; IG Ex. 2 at 4.

Petitioner, who is represented by counsel, submitted a timely request for hearing that was
both dated and received on October 1, 2015. On November 18, 2015, I presided over a
telephonic pre-hearing conference, and shortly thereafter, on November 20, 2015, I
issued an Order and Schedule for Filing Briefs and Documentary Evidence (Order) that
memorialized the discussions in that conference and provided instructions to the parties
regarding filings, deadlines, and other substantive matters.

Pursuant to my Order, the IG filed an informal brief (IG Br.) and a reply brief (IG Reply),
along with four exhibits that are marked as IG Exhibits (Exs.) 1-4. Petitioner filed an
informal brief (P. Br.) that referenced exhibits that had been appended to his request for
hearing. Pursuant to a February 18, 2016 Order, Petitioner resubmitted these exhibits as
P. Exs. 1-4 on February 22, 2016. The IG has objected to the admittance of P. Exs. 3 and
4, which consist of letters from various people, including Petitioner’s friends, family
members, patients, and colleagues, that had been submitted to the sentencing judge. The
IG has argued these letters are irrelevant. IG Br. at 7. While I agree that much of the
content of P. Exs. 3 and 4 is irrelevant to the issues before me, I nonetheless admit P.
Exs. 3 and 4 because some of the letters reference an alleged mitigating factor. See P. Br.
at 5-6; 42 C.F.R. § 1001.201(b)(3)(iv). I therefore admit IG Exs. 1-4 and P. Exs. 1-4,
along with the parties’ briefs. Neither party requested that I convene a hearing in person,
and I am therefore deciding this case on the merits based on the parties’ written filings.

IL. Issues

The issue in this case is whether there is a legal basis under Section 1128(b) of the Act
for the IG to exclude Petitioner from participation in Medicare, Medicaid, and other
federal health care programs. If I find a legitimate basis for the exclusion, then I must
consider whether a four-year exclusion is reasonable.
Il. Jurisdiction

I have jurisdiction to adjudicate this case. 42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2.
IV. Findings of Fact, Conclusions of Law, and Analysis!

1. Petitioner pleaded guilty to a three-count misdemeanor
information charging that he committed three offenses of “Theft
From a Health Care Benefit Program,” in violation of 18 U.S.C.
§ 669(a), on or about December 21, 2009, January 15, 2010, and
January 6, 2011.

2. Petitioner’s criminal offenses constitute theft in connection with
the delivery of a health care item or service pursuant to section

1128(b)(1)(A)(i) of the Act.

Section 1128(b)(1)(A)(i) of the Act authorizes the IG to impose an exclusion from all
federal health care programs under certain conditions. Section 1128(b)(1) states:

(b) PERMISSIVE EXCLUSION. -— The Secretary may exclude the
following individuals and entities from participation in any Federal health
care program (as defined in section 1128B(f)):

(1) CONVICTION RELATING TO FRAUD - Any individual or
entity that has been convicted for an offense which occurred after
the date of the enactment of the Health Insurance Portability and
Accountability Act of 1996, under Federal or State law—

(A) of a criminal offense consisting of a misdemeanor relating to
fraud, theft, embezzlement, breach of fiduciary responsibility, or
other financial misconduct--

(i) in connection with the delivery of a health care item or
service....

42 U.S.C. § 1320a-7(b)(1)(A). The Secretary has promulgated regulations implementing
these provisions of the Act. 42 C.F.R. § 1001.201(a). Section 1128(c)(3)(D) of the Act
provides that an exclusion imposed under section 1128(b)(1) of the Act will be fora
period of three years, unless the Inspector General determines, in accordance with

' My findings of fact and conclusions of law are set forth in italics and bold font.
regulations, that a shorter period is appropriate because of mitigating circumstances or
that a longer period is appropriate because of aggravating circumstances. 42 C.F.R.
§ 1001.201(b)(2) and (3).

The standard of proof is a preponderance of the evidence, and there may be no collateral
attack of the conviction that provides the basis of the exclusion. 42 C.F.R.

§ 1001.2007(c), (d). Petitioner bears the burden of proof and the burden of persuasion on
any affirmative defenses or mitigating factors, and the IG bears the burden on all other
issues. 42 C.F.R. § 1005.15(b).

The IG argues that it properly excluded Petitioner from all federal health care programs
based on his convictions for offenses involving theft from a health care program.

A three-count information filed on October 1, 2014 in the United States District Court for
the Western District of New York charged that Petitioner, on separate occasions in
December 2009, January 2010, and January 2011, “knowingly and willfully and without
authority intentionally misapplied to the use of a person other than the rightful owner,
money and funds of BlueCross BlueShield, a health care benefit program as defined in
Title 18, United States Code, Section 24(b), in that [Petitioner] submitted a claim to
BlueCross BlueShield seeking payment for a 45-50 minute face to face individual
psychotherapy session for patient ‘[redacted in original document],’ when, in fact,
Petitioner] provided no such service on that date, and as a result, received money from
BlueCross BlueShield to which he was not entitled.” IG Ex. 3.

On the same day that the information was filed, Petitioner, along with his counsel, signed
a 14-page plea agreement with the United States Attorney’s Office in which he “‘agree[d]
to plead guilty to a three count misdemeanor Information which charges in each count a
violation of Title 18, United States Code, Section 669(a) (Theft from a Health Care
Benefit Program).” IG Ex. 1 at 1. Petitioner acknowledged the elements of the offenses
to which he was pleading guilty, which were set forth as follows in the plea agreement:

a. [Petitioner] intentionally misapplied assets belonging to a health care benefit
program, to wit: BlueCross BlueShield of Western New York;

b. and that [Petitioner] acted knowingly and willfully.

IG Ex. | at 2. In the plea agreement, Petitioner stated that he was a licensed clinical
social worker who was a participating provider with BlueCross BlueShield, and that
while participating as a provider he “devised a scheme” whereby he improperly
submitted claim forms that resulted in him “improperly obtaining reimbursement from
BlueCross BlueShield for which he was not entitled.” IG Ex. | at 3. With regard to the
three separate counts in the information charging him with violating 18 U.S.C. § 669(a),
Petitioner stated that on each occasion, he was reimbursed $80 “for the non-rendered
services which [Petitioner] converted for his own use.” IG Ex. | at 3-4. The plea

agreement addressed the total amount of loss to the health insurer, in that it stated the
following: “The government and defendant agree that the total loss amount for relevant
conduct purposes is $100,286.35.”* IG Ex. | at 4. Petitioner further agreed that “the
Court shall require restitution in the amount of $100,286.35 to be paid to the victims as
part of [Petitioner’s] sentence.” IG Ex. 1 at 8. Petitioner also agreed to the following
provision in the plea agreement: “As a condition of this plea, the defendant, EUGENE
DOMENICO, acknowledges that $100,286.35 United States currency (hereinafter
“currency”) was seized from him by law enforcement officials on or about December 18,
2012.” IG Ex. 1 at 11. Petitioner agreed that he would “no longer contest the civil
forfeiture of $100,286.35 of the seized United States currency.” IG Ex. | at 11.

On April 1, 2015, Petitioner was sentenced on all three counts to a two-year term of
probation for each count, to run concurrently. IG Ex. 2 at 2; see P. Ex. 2. Petitioner was
ordered to pay a $10,000 fine and $100,286.35 in restitution to BlueCross BlueShield of
Western New York. IG Ex. 2 at 4.

Petitioner does not deny that he was convicted of the criminal offenses addressed above,
yet he contends that he was not convicted of an offense for which exclusion is authorized.
P. Br. at 2 (stating “Yes” in response to the question asking “Do you disagree with the
1.G.’s argument?”) Petitioner’s contention that the IG was not authorized to exclude him
is not supported by the relevant facts or the law: Petitioner’s conviction clearly meets the
elements set forth in section 1128(b)(1)(A)(i) of the Act, and even the title of 18 U.S.C.

§ 669(a), “Theft or embezzlement in connection with health care,” accurately describes
the nature of the offense conduct. Petitioner admitted that he intentionally misapplied
assets belonging to a health care benefit program and did so “knowingly and willfully.”
IG Ex. | at 2. Petitioner further admitted that he obtained payment and reimbursement
after submitting claim forms when he “had not provided services.” IG Ex. 1 at 3-4.
Petitioner was convicted of “theft” from a health care program, pursuant to 18 U.S.C.

§ 669(a), and the total amount of loss to the health care program was in excess of
$100,000. IG Ex. | at 4.

> “Relevant conduct” is addressed in Section 1B1.3 of the United States Sentencing
Guidelines (U.S.S.G.), which states in pertinent part that “[c]onduct that is not formally
charged or is not an element of the offense of conviction may enter into the determination
of the applicable guideline sentencing range.” Thus, while Petitioner pleaded guilty to
three offenses totaling $240 in loss to the health program, for sentencing purposes, the
recommended sentencing range obtained from application of the U.S.S.G. was based on a
“total loss amount for relevant conduct purposes [of] $100,286.35.” IG Ex. 1 at 4; see IG
Ex. | at 5 (plea agreement noting an “8 offense level increase” was warranted based on
the “total loss (including relevant conduct) was in excess of $70,000 (namely
$100,286.35)”).
I conclude that the IG had a basis to exclude Petitioner pursuant to section
1128(b)(1)(A)(i) of the Act. All elements required to exclude an individual under that
section of the Act are present here. Petitioner was convicted within the meaning of
1128(i) of the Act when the District Court accepted his guilty plea to three separate
instances of theft that occurred well after August 21, 1996. LG. Exs. | at 3-4 and 2 at 1.
Furthermore, Petitioner’s offenses were in connection with the delivery of a health care
item or service, in that Petitioner was convicted of charging for services he claimed to
ave provided as a licensed clinical social worker but did not provide. IG Ex. 1, 3.
While Petitioner was afforded substantial leniency by the criminal justice system, his
receipt of a sentence sparing him incarceration does not render him a trustworthy
individual for purposes of having access to the public fisc and treating health care
program beneficiaries. See Henry L. Gupton, DAB No. 2058 at 7 (2007) (explaining that
while an IG exclusion aims to protect beneficiaries of health care programs and the
federal fisc, a criminal law proceeding involves “punishment, rehabilitation, and the
deterrence of future misconduct”). The IG had a proper basis to exclude Petitioner from
participation in Medicare, Medicaid, and all other federal health care programs.

3. Petitioner’s exclusion for a period of four years is not
unreasonable.

The period of exclusion under section 1128(b)(1) is three years, unless aggravating or
mitigating factors justify lengthening or shortening that period. Act § 1128(c)(3)(D);

42 C.F.R. § 1001.201(b)(1). Only the mitigating factors authorized by 42 C.F.R.

§ 1001.201(b)(3) may be considered in order to reduce the period of exclusion. The IG
has the discretion to impose an exclusion longer than the minimum period when there are
aggravating factors present. See 42 C.F.R. § 1001.201(b)(2). The notice letter states that
the IG considered two aggravating factors in deciding that the length of Petitioner’s
exclusion should be extended to four years. Petitioner does not identify any mitigating
factor authorized by the regulation that the IG failed to consider or that I should consider.
I conclude therefore that the four-year exclusion is not unreasonable, as explained below.

The first aggravating factor is that the loss to a Government program or other entity as a
result of Petitioner’s criminal conduct was greater than $5,000. Jd. § 1001.201(b)(2)(i).
Second, Petitioner was subject to another adverse action based on the same circumstances
that support the exclusion.’ Jd. § 1001.201(b)(2)(vi).

> T observe that the IG exercised leniency in not finding a third aggravating factor
pursuant to section 1001.201(b)(2)(ii), in that the acts that resulted in the three
convictions were committed over a period of one year or more. See IG Ex. 2 at 1.
Petitioner raises a vague dispute regarding the loss to health insurer BlueCross
BlueShield of New York as a result of his criminal conduct. While he stated in his plea
agreement that the health insurer lost $100,286.35 as a result of his “relevant conduct,”
he now disputes that figure, stating:

This amount was extrapolated after reviewing various interoffice records in
connection with Dr. Domenico’s billing procedures. To be clear, this was
an estimation, not an exact calculation. As noted above, the services were
always provided. The issue was how Dr. Domenico billed the services he
provided. Dr. Domenico did not dispute the calculations as part of his plea
agreement with the government. Although it is likely the amount exceeds
$5,000, it certainly is less than $100,286.35. Dr. Domenico was required to
accept the government’s calculation as part of the agreement that reduced
all charges to misdemeanors. *

P. Br. at 4. Petitioner’s argument is disingenuous. First, Petitioner unambiguously
acknowledged the following in the plea agreement: “I fully agree with the contents of
this agreement. I am signing this agreement voluntarily and of my own free will.” IG
Ex. | at 4. In agreeing to a total loss of $100,286.35 as a result of his criminal conduct,
Petitioner exposed himself to the possibility of significantly greater prison time, as the
base offense level for his offense was 6 (IG Ex. | at 4), and the significant amount of loss
to BlueCross BlueShield increased the offense level by 8 levels. IG Ex. 1 at 4; see
U.S.S.G. § 2B1.1 and Sentencing Table. Petitioner fails to reconcile why he would “fully
agree” with the contents of the plea agreement, which included an amount of loss that
exposed him to the possibility of incarceration, when he now contends that the amount of
loss “likely” exceeded $5,000 but “certainly is less than $100,286.35.” P. Br. at 4. Lalso
observe that Petitioner’s acceptance of the plea agreement obligated him to pay
$100,286.35 in restitution; it is difficult to understand why Petitioner would agree to pay
$100,286.35 in restitution if he believed the actual loss could have been closer to $5,000.
Finally, I point out that Petitioner has not put forth any specific figure specifying the
precise amount of the loss. Absent any other figure that is supported by probative
evidence, I have no reason to question that the loss was other than $100,286.35, which is
the amount Petitioner agreed to in his plea agreement. IG Ex. 1. The amount of loss
involved was roughly forty times the $5,000 amount listed in 42 U.S.C.

§ 1001.201(b)(2)(i), and the IG properly considered the substantial loss to the health
insurer be an aggravating factor.

* Petitioner pleaded guilty to separate misdemeanor offenses under 18 U.S.C. § 669(a).
A misdemeanor offense under section 669(a) involves a loss under $100. The maximum
period of incarceration for a misdemeanor offense is one year, whereas the maximum
sentence of incarceration for a felony conviction is 10 years. 18 U.S.C. § 669(a).
With respect to the magnitude of his criminal scheme, and thereby the resulting amount
of loss, Petitioner argues in his brief that he would “sometimes” bill for a separate session
on a date in which he did not treat a patient so that he could be reimbursed for
purportedly lengthy face-to-face sessions he had with his patients.” P. Br. at 2 (“The
investigation in this matter centered around Dr. Domenico’s practice of sometimes billing
a 90-minute session as a 45-minute visit on the day the session took place and a 45-
minute follow-up visit the next day.); P. Br. at 3 (“Therefore, in order to accommodate
some patients and better serve others, Dr. Domenico sometimes extended patient
treatment to 90-minute sessions.”) This practice is not reflected in Petitioner’s plea
agreement or judgment of conviction. See IG Exs. 1 and 2. While the sentencing judge
expressed an opinion that Petitioner’s case was “different” and he declined to impose a
sentence of incarceration, the sentencing judge nonetheless ordered that Petitioner pay a
significant fine of $10,000 for his misdemeanor offenses and serve two years of
probation. IG Ex. 2; P. Ex. 2. I also observe that each offense to which Petitioner
pleaded guilty involved a loss to BlueCross BlueShield of $80. IG Ex. 1 at 3-4. While
not making any finding or conclusion regarding the number of acts involved in the
relevant conduct cited in the plea agreement, I observe that based on the total loss of
$100,286.35 for which restitution was ordered, Petitioner would have had to have billed
BlueCross BlueShield 1,253 times for services he did not provide if each individual;
billing entry was for only $80.° Such a figure does not provide support to Petitioner’s
allegation in his brief that he only “sometimes” engaged in improper billing.

Petitioner has not denied that the New York State Office of the Medicaid Inspector
General excluded him from participation in that program as a result of his criminal
conviction. IG Ex. 4. As such, the IG properly considered this factor. 42 C.F.R.

§ 1001.201(b)(2)(vi).

4. Petitioner has not asserted any basis for mitigation that is
contemplated by the regulations.

The regulations list a limited number of mitigating factors that may be a basis for
reducing a period of exclusion. Pursuant to section 1001.201(b)(3)(iv), the IG can find a
mitigating factor is present if “[a]lternative sources of the type of health care items or

> To the extent that Petitioner appears to be attempting to attack the basis of his
underlying conviction, I note that the basis for his conviction is not reviewable.
42 C.F.R. 1001.2007(d).

° The frequency of billing, if true, is even more remarkable if one considers that the
period at issue was between December 2009 and January 2011.
services furnished by the individual or entity are not available.” In support of Petitioner’s
argument for mitigation, he contends that that he is “one of only a few psychotherapists
in the Lockport area.” P. Br. at 5. Petitioner submitted numerous statements that he feels
provide support to his argument that the length of his exclusion should be shortened, and
Petitioner asserts that the evidence shows that he is “one of only a few providers in all of
Western New York who specialize in caring for law enforcement and the poor,
particularly with those who suffer from Post Traumatic Stress Disorder.” P. Br. at 5; see
P. Exs. 3 and 4 (containing dozens of letters from patients, concerned citizens, and family
members requesting leniency from the sentencing District Court judge). Petitioner points
out that a local police chief stated that “there ‘are very few health professionals out there
who are trained to deal with law enforcement officers.’” P. Br. at 5, citing P. Ex. 3 at 11.

Petitioner’s plea agreement indicates that he is a licensed clinical social worker (IG Ex. 1
at 2), and he reports in his brief that he is a psychotherapist. P. Br. at 2. Petitioner has
not submitted any evidence showing that there are no other licensed clinical social
workers or psychotherapists available in his region, nor has he shown that there are no
other mental health professionals, such as, but not limited to, psychiatrists and
psychologists, who can provide mental health services to patients, to include those with
post-traumatic stress disorder (PTSD) and/or patients who are members of the law
enforcement community. In fact, Petitioner has acknowledged that he is “one of only a
few psychotherapists in the Lockport area,” and that there are “a few” providers in
Western New York who specialize in caring for the law enforcement community. P. Br.
at 5. As Petitioner has not shown that other sources “are not available,” he has not shown
that services for patients, to include those with PTSD and who serve in law enforcement,
are not otherwise available. 42 C.F.R. § 1001.201(b)(3).

Petitioner also asserts that his specialization in treating “the poor” and “underserved” is a
mitigating factor. P. Br. at 5. The regulations do not account for such a mitigating factor,
so long as other sources of treatment are available. 42 C.F.R. § 1001.201(b)(3)(iv).
Petitioner also explains that his area is “suffering a rise in opiate addiction and overdose
epidemic,” and he is “one of only a few” approved addiction counselors. P. Br. at 5.
Petitioner also indicates that he has suicidal patients who would be without care if the
exclusion is affirmed. P. Br. at 5. Petitioner has not shown that he is the only
psychotherapist or licensed clinical social worker in his geographic area, or that other
mental health professionals could not provide care to the poor, substance abusers, and
people who have expressed suicidal ideation. 42 C.F.R. § 1001.201(b)(3)(iv). In fact,
Petitioner acknowledges there are other psychotherapists in his area, and he concedes that
there are “a few” other approved addiction counselors in the Lockport community and
Niagara County. P. Br. at 5. Finally, while Petitioner contends that he treats the poor and
underserved, he has also been excluded from the New York State Office of the Medicaid
Inspector General, which presumably serves a number of the poor and underserved
patients that Petitioner described in his brief. CMS Ex. 4. Thus, even prior to the instant

10

IG exclusion at issue, Petitioner was already excluded from participation in New York’s
Medicaid program.

V. Conclusion

For the foregoing reasons, I affirm the IG’s exclusion of Petitioner from participation in
Medicare, Medicaid, and all other federal health care programs for a period of four years,
effective August 20, 2015.

/s/
Leslie C. Rogall
Administrative Law Judge