Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Robert Miles, Jr., D.P.M.
(NPI: 1316924988)
(PTAN: 5W855),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-26
Decision No. CR4674

Date: August 5, 2016

DECISION

The Centers for Medicare & Medicaid Services (CMS), through its Medicare
administrative contractor, revoked the Medicare enrollment and billing privileges of
Robert Miles, Jr., D.P.M. (Petitioner or Dr. Miles) because Dr. Miles did not have an
operational medical practice at the location on record with CMS. Specifically, the
location on record with CMS was a mailbox unit at a United Parcel Service (UPS) Store.
Dr. Miles does not contend that he actively provided podiatry services from this location.
Thus, CMS properly concluded that Dr. Miles was not operational at that location. I
therefore affirm CMS’s revocation of Dr. Miles’ Medicare enrollment and billing
privileges.

I. Background

Dr. Miles is a podiatrist. He does not maintain an office that is open to the public, but
rather provides podiatry services at several nursing homes in the New Orleans area. See,
e.g., Petitioner’s Brief (P. Br.) at 2. Dr. Miles was enrolled as a Medicare supplier of
podiatry services, and submitted a revalidation application, using Form CMS-855]1, which
he signed on August 8, 2010. CMS Exhibit (Ex.) 5 at 13-45. At section 4C of the
revalidation enrollment form,' Dr. Miles reported that his physical practice location was
857 Brownswitch Rd. 290, Slidell, Louisiana 70458-5335. CMS Ex. 5 at 28. On or about
October 22, 2010, Dr. Miles re-submitted responses to sections 3, 4C, and 15 of the
CMS-8551.’ CMS Ex. 5 at 1-10. In the resubmission, Dr. Miles again certified that his
medical practice location was at 857 Brownswitch Rd. #290, Slidell, Louisiana 704583
CMS Ex. 5 at 6.

A CMS contractor visited Petitioner’s reported address, 857 Brownswitch Rd. #290,
Slidell, Louisiana, on May 8, 2015, to conduct an on-site review. The site visit contractor
documented that a UPS Store occupied the street address and that #290 represented a
mailbox unit inside the UPS Store. CMS Ex. 2.

By letter dated May 28, 2015, Novitas Solutions (Novitas), a Medicare administrative
contractor, informed Dr. Miles of its initial determination to revoke his Medicare billing
privileges retroactive to May 8, 2015, and to impose a two-year reenrollment bar. CMS
Ex. 1. The letter stated the following, in pertinent part:

42 CFR §424.535(a)(5) — On-Site Review — Requirements
Not Met

Upon an on-site review on May 08, 2015 at 2:56 p.m., we
determined you are no longer operational at 857
Brownswitch Road, #290, Slidell, LA, 70485-5335 [sic] to
furnish Medicare covered items or services. The address
for this facility was a business that has P.O. Boxes. The
facility is not located at this address.

CMS Ex. | at 1 (emphasis original).

' Section 4C of the enrollment application requests practice location information.

2 The record does not reveal the reason for the additional submission dated October 22,
2010.

> Dr. Miles originally left out a “#” before “290” in the address he provided in his re-
validation application. CMS Ex. 5 at 28. In his October 22, 2010 submission, Dr. Miles
included it. CMS Ex. 5 at 4,6. The site visit contractor’s report noted that the address
was “857 Brownswitch Rd., #290,” however, and took a picture that clarifies that “290”
was Dr. Miles’ mailbox number at the UPS Store. CMS Ex. 2 at 1, 3.
In a letter dated July 14, 2015, Petitioner requested reconsideration of the May 28, 2015
revocation determination. CMS Ex. 3. Petitioner explained that he performs podiatry
services only in nursing homes and not in an office setting. Id. Petitioner stated that he
“mistakenly understood that he could utilize a secure mailing service as his podiatry
practice location in order to ensure receipt of all business-related communications,
particularly in light of the nature of his travelling practice.” CMS Ex. 3 at 1. With his
reconsideration request, Petitioner submitted a “revised and corrected” Form CMS-855I.
CMS Ex. 3 at 2; see also P. Ex. | at 8-27.

On August 21, 2015, Novitas issued an unfavorable reconsidered determination. CMS
Ex. 4. The reconsidered determination stated the following:

[Dr. Miles] does not dispute the practice location of 857
Brownswitch Rd, #290, Slidell, LA, 70458-5335 on the
PECOS [Provider Enrollment Chain, and Ownership System]
file is a post office box. Therefore, the reconsideration is
denied and the revocation is upheld.

[Dr. Miles] has not provided evidence to show full
compliance with the standards for which [he was] revoked.

CMS Ex. 4 at 2.

Petitioner submitted a hearing request on October 2, 2015. The case was assigned to
Administrative Law Judge Carolyn Cozad Hughes. Effective July 15,2016, the case was
reassigned to me. Judge Hughes issued an Acknowledgement and Pre-Hearing Order
(Order) dated October 27, 2015, which directed each party to file a pre-hearing exchange
consisting of a brief and any supporting documents, and also set forth the deadlines for
those filings. Order § 4. The Order also explained that the parties should submit written
direct testimony for any witnesses in lieu of in-person direct testimony. Order § 8.
Finally, the Order explained that a hearing would only be necessary for the purpose of
cross-examination of witnesses. Order §§ 9, 10.

In response to the October 27, 2015 Order, CMS filed a brief (CMS Br.), exhibits (CMS
Exs. 1-5), and a response to Petitioner’s brief (CMS Resp.). Petitioner, through counsel,
filed a brief (P. Br.) and one exhibit (P. Ex. 1). Petitioner objected to CMS Ex. 3 on the

grounds that it did not include the complete corrected Form CMS-855I, which Petitioner
submitted with his reconsideration request. I conclude that Petitioner’s objection does
not provide a basis to exclude CMS Ex. 3. However, I accept Petitioner’s representation
that he submitted a corrected Form CMS-855I with the reconsideration request, dated
July 14, 2015, and that the contents of the corrected form are reproduced in P. Ex. 1. I
admit the parties’ briefs and exhibits into the record.*

CMS represented that it did not intend to present any witness testimony; accordingly, it
did not submit the written direct testimony of any witness. The parties cross-moved for
summary judgment. Counsel for Petitioner stated that, in the event I do not grant
summary judgment in Dr. Miles’ favor, Dr. Miles wishes to testify at an in-person
hearing. P. Br. at 9. However, Petitioner did not submit, in the form of an affidavit or
declaration, the complete written direct testimony of Dr. Miles as required by Judge
Hughes’ Order. See Order J 8. Nor did CMS request the opportunity to cross-examine
Dr. Miles. Judge Hughes’ Order made clear that “[a]n in-person hearing . . . will be
necessary only if a party files admissible, written direct testimony, and the opposing
party asks to cross-examine.” Order § 10 (emphasis added). Therefore, because the
conditions for an in-person hearing specified in Judge Hughes’ Order are not met, I
consider the record to be closed and the matter ready for a decision on the merits.

As an in-person hearing to cross-examine witnesses is not necessary, I decide this case
based on the written record, and I need not rule on the parties’ cross-motions for
summary judgment. Moreover, as I explain more fully in finding # 3, below, even if Dr.
Miles were to appear before me and verify under oath all the factual assertions in
Petitioner’s request for reconsideration and brief, there is nevertheless no basis to
conclude that CMS exceeded its authority in revoking Dr. Miles’ Medicare enrollment
and billing privileges.

II. Issue

Whether CMS has a legal basis to revoke Dr. Miles’ Medicare enrollment and billing
privileges because Dr. Miles was not operational at the practice location on file with
CMS.

* In addition to the exhibits offered pursuant to Judge Hughes’ Order, Dr. Miles’ wife
submitted an unsolicited letter to Judge Hughes, which this office received on July 11,
2016. I direct that this letter be entered into the electronic file in this case. I do not treat
it as an exhibit, however, for two reasons: first, the letter was not submitted in the form
or time frame directed by Judge Hughes’ Order; second, the letter does not include any
evidence or argument that is relevant to the issue in this case.
III. Jurisdiction

Ihave jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(17), 498.5(1)(2); see also 42
USC. § 1395cc(j)(8).

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

As a podiatrist, Dr. Miles is a “supplier” for purposes of the Medicare program. See

42 USC. § 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, individuals must meet certain
criteria to enroll and receive billing privileges. 42 C.F.R. §§ 424.505, 424.510. CMS
may revoke the enrollment and billing privileges of a supplier for any reason stated in
42 CFR. § 424.535. When CMS revokes a supplier’s Medicare billing privileges, CMS
establishes a reenrollment bar for a period ranging from one to three years. 42 C.F.R.

§ 424.535(c). Generally, a revocation becomes effective 30 days after CMS mails the
initial determination revoking Medicare billing privileges, but if CMS finds a supplier to
be non-operational, as it did here, the revocation is effective from the date that CMS
determines that the supplier was not operational. 42 C.F.R. § 424.535(g).

On-site review is addressed in 42 C.F.R. § 424.535(a)(5). Pursuant to subsections
424.535(a)(5)(i) and (ii) CMS may revoke a supplier’s Medicare enrollment and billing
privileges if CMS determines upon on-site review that the supplier is “[n]o longer
operational to furnish Medicare-covered items or services” or that it “fails to satisfy any
Medicare enrollment requirement.”

1. ACMS contractor attempted to conduct a site visit of Dr. Miles’ practice
location on May 8, 2015, at the address on file with CMS (857 Brownswitch Rd.
#290, Slidell, Louisiana, 70458-5335); however, a UPS Store, and not Dr.
Miles’ medical office, occupied that location.

On or about August 8, 2010, Dr. Miles completed a revalidation enrollment application
using Form CMS-855I. CMS Ex. 5 at 13-45. At section 4C of the revalidation
enrollment form, Dr. Miles reported that his practice location was 857 Brownswitch Rd.
290, Slidell, Louisiana 70458-5335. CMS Ex. 5 at 28. Dr. Miles checked a box on the
form identifying this location as a “[p]rivate practice office setting.” Id. In response to
the prompt “Date you saw your first Medicare patient at this practice location,” Dr. Miles
entered “09/30/2002.” Id. Dr. Miles also listed the 857 Brownswitch Road address as his
correspondence address (section 2B) and the address to which remittance notices and

> My numbered findings of fact and conclusions of law appear in bold and italics.
special payments should be sent (section 4E). CMS Ex. 5 at 18, 30. On or about October
22, 2010, Dr. Miles re-submitted responses to sections 3, 4C, and 15 of the Form CMS-
8551. CMS Ex. 5 at 1-10. In the resubmission, Dr. Miles again certified that his medical
practice location was at 857 Brownswitch Rd. #290, Slidell, Louisiana 70458. CMS Ex.
Sat 6.

A CMS contractor visited Petitioner’s reported address, 857 Brownswitch Rd. #290,
Slidell, Louisiana, on May 8, 2015, to conduct an on-site review. CMS Ex. 2. The site
visit contractor documented that the location was a UPS Store and not a medical office.
Id. Dr. Miles admits that the Brownswitch Road address is “indeed a post office address
only, as the May 2015 on-site review determined.” CMS Ex. 4 at 2; see also P. Br. at 4.

2. CMS had a legal basis to revoke Dr. Miles’ Medicare enrollment and billing
privileges because Dr. Miles was not operational under 42 C.F R.
§ 424.535(a)(5) at the practice location on file with CMS.

Petitioner admits that the 857 Brownswitch Road location is a UPS Store and not a
practice location, but argues that he was nonetheless “fully operational” to see patients at
various nursing homes. P. Br. at 2.

A supplier is “operational” when it:

has a qualified physical practice location, is open to the public
for the purpose of providing health care related services, is
prepared to submit valid Medicare claims, and is properly
staffed, equipped, and stocked (as applicable based on the
type of facility or organization, provider or supplier specialty,
or the services or items being rendered) to furnish these items
or services.

42 CFR. § 424.502. CMS may revoke a currently enrolled supplier’s Medicare billing
privileges in the following circumstance:

Upon on-site review or other reliable evidence, CMS
determines that the provider or supplier is . . .:

(i) No longer operational to furnish Medicare-covered
items or services.

42 CFR. § 424.535(a)(5)(i).
The regulatory definition of the term “operational” refers to the “qualified physical
practice location” of a supplier. 42 C.F.R. § 424.502. The Medicare enrollment and
revalidation applications request the address of the supplier’s practice location. See, e.g.,
CMS Ex. 5 at 6, 28. Additionally, a supplier must be able to provide documentation of
its “practice location” with its enrollment application. 42 C.F.R. § 424.510(d)(2)(ii).
CMS may perform on-site inspections to verify that the enrollment information submitted
by a supplier is accurate and to determine compliance with Medicare requirements. 42
C.F.R. § 424.517(a). CMS has explained, “[T]he primary purpose of an unannounced
and unscheduled site visit is to ensure that a provider or supplier is operational at the
practice location found on the Medicare enrollment application.” 76 Fed. Reg. 5862,
5870 (February 2, 2011) (emphasis added).

In summary, to determine whether CMS had a legal basis to revoke Dr. Miles’ Medicare
enrollment and billing privileges, I must answer two questions: 1) What was the practice
location address on file with the Medicare contractor on the date of the on-site visit? 2)
Was Dr. Miles operational at that address on the date of the on-site visit? See Care Pro
Home Health, Inc., DAB No. 2723 at 15 (2016). Here, CMS provided undisputed
evidence that Dr. Miles was not operational at the 857 Brownswitch Road address, which
was the only practice address Dr. Miles had on file with the Medicare contractor at the
time of the May 8, 2015 attempted site visit.

In his reconsideration request, Dr. Miles explained that he does not maintain an office
location because he only treats patients who reside in nursing homes. Dr. Miles contends
that his practice was at all times “operational” at the nursing home locations. CMS Ex. 3
at 1. With the reconsideration request, dated July 14, 2015, Dr. Miles submitted a
“revised and corrected” Form CMS-855I, on which he listed as practice locations the
names and addresses of seven nursing homes at which he treats patients. P. Ex. | at 17-
23. The fact that Dr. Miles submitted the nursing home addresses to the CMS contractor
in July 2015 does not negate the conclusion that he was not “operational” at the
Brownswitch Road address on file as of May 8, 2015, because a UPS Store is located at
that address.

Therefore, I conclude that CMS had a legal basis to revoke Dr. Miles’ enrollment and
billing privileges under 42 C.F.R. § 424.535(a)(5)(i).

3. Neither Dr. Miles’ factual representations nor his legal arguments provide a
basis to reverse the revocation.

Although Petitioner did not submit Dr. Miles’ testimony in the form of an affidavit or
declaration, for purposes of this decision I accept that Dr. Miles would testify to the
following facts asserted in Petitioner’s brief. Dr. Miles never represented to the public
(i.e. Medicare beneficiaries) that the UPS Store was his practice address.° P. Br. at 2. Dr.
Miles entered the UPS Store address on his revalidation application based on advice from
a Novitas employee. P. Br. at 3. Dr. Miles has been a Medicare supplier in good
standing since 1998, and has never previously been the subject of any adverse action by
Medicare or the Office of Inspector General. P. Br. at 2. Dr. Miles has devoted his
practice to treating underserved populations, such as nursing home residents and
homeless veterans. Id. Dr. Miles has submitted his Medicare claims with the appropriate
place of service codes, indicating that his services were provided in nursing facilities. P.
Br. at 2-3. Petitioner argues that, because Dr. Miles’ Medicare claims had proper place
of service codes, “Medicare has been expressly aware of Dr. Miles’ mobile practice for
over fifteen years.” P. Br. at 3. Petitioner argues that CMS should have afforded Dr.
Miles the opportunity to cure his noncompliance before revoking his Medicare
enrollment and billing privileges. P. Br. at 7. Petitioner further argues that revoking Dr.
Miles’ enrollment and billing privileges and barring him from reenrollment for two years
is an unduly “harsh and arbitrary” penalty for a “minor technical error.” P. Br. at 3.
Petitioner requests, as an alternative remedy, that I reduce the re-enrollment bar imposed
by CMS from two years to one year. P. Br. at 8. None of these assertions or arguments
is a basis to reverse the revocation of Dr. Miles’ Medicare enrollment and billing
privileges.

Petitioner’s brief raises for the first time the suggestion that a Novitas employee informed
Dr. Miles that he was permitted to report the UPS Store address as his practice location
when filling out the Form CMS- 855I. The brief provides no details regarding the alleged
contact between Dr. Miles and the Novitas employee, nor has Petitioner offered any
documentary evidence of such a contact. However, even assuming Dr. Miles received
incorrect information from a Novitas employee, this would not be a basis to set aside the
revocation. The contention that Dr. Miles relied on incorrect information from a
government contractor appears to raise a claim of equitable estoppel. Whether the
government can ever be estopped from enforcing valid regulations based on the
misrepresentations of government employees or their agents is highly questionable. See
Heckler v. Cmty. Health Servs. of Crawford Cnty., 467 U.S. 51, 63 (1984); Schweiker v.
Hansen, 450 U.S. 785 (1981). In any event, on the present facts, I would find that Dr.
Miles could not reasonably rely on the alleged advice, because, as discussed below, the
instructions on the Form CMS-855I explicitly prohibit reporting a post office box as a
practice location. See, e.g., CMS Ex. 5 at 27.

° Of course, as discussed above, it is undisputed that Dr. Miles represented to CMS and
its contractor that his practice location was at 857 Brownswitch Rd. #290, Slidell,
Louisiana.
In a further appeal to equity, Dr. Miles suggests, based on his reputation in and
contributions to his community, that revocation of his Medicare enrollment and billing
privileges is unjust and fails to serve a public purpose. However, CMS’s discretionary
act to revoke a provider or supplier is not subject to review based on equity or mitigating
circumstances. Letantia Bussell, M.D., DAB No. 2196 at 13 (2008). Rather, “the right to
review of CMS’s determination by an [administrative law judge] serves to determine
whether CMS had the authority to revoke [the provider’s or supplier’s] Medicare billing
privileges, not to substitute the [administrative law judge’s] discretion about whether to
revoke.” Id. (citation omitted) (emphasis in original). Once CMS establishes a legal
basis on which to proceed with a revocation, then the CMS determination to revoke
becomes a permissible exercise of discretion, which I am not permitted to review. See id.
at 10; see also Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff'd, Anmed
v. Sebelius, 710 F. Supp. 2nd 167 (D. Mass. 2010) (if CMS establishes the regulatory
elements necessary for revocation, an administrative law judge may not substitute his or
er “discretion for that of CMS in determining whether revocation is appropriate under
all the circumstances”).

By pointing out that his claims have at all times been submitted with proper place of
service codes, Petitioner appears to argue that, if CMS or its contractor had pursued
additional avenues of inquiry, such inquiry may have revealed the true nature and
location of Dr. Miles’ practice. While I am required to decide whether CMS had a legal
basis to revoke Dr. Miles’ enrollment, I am not required to assess whether CMS could
have made additional efforts to identify his practice location, and Petitioner has not cited
any authority showing CMS had such an obligation. See Wendell Foo, M.D., DAB
CR4580 at 8-9 (2016). Moreover, it is unreasonable to expect that, in the event of a
failed site verification inspection, CMS and its contractors will proactively search for
physical locations that are not listed on an enrollment application. Id. at 9. According to
CMS statistics for calendar year 2012, there were up to one million physicians providing
care to Medicare fee-for-service beneficiaries. See U.S. Dept. of Health and Human
Services, 2013 CMS Statistics, at 24, Table II.8, available at https://www.cms.gov/
Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/CMS-Statistics-
Reference-Booklet/Downloads/CMS_Stats_2013_final.pdf (last visited July 28, 2016). I
take notice that many, if not most, of these physicians are enrolled as suppliers in the
Medicare program and these physicians are also subject to periodic site verification visits.
Given the scope and scale of the data collection required to enroll these
physician/suppliers, CMS and its contractors reasonably place the burden on the supplier
to accurately report the practice location or locations when completing an application for
enrollment or revalidation purposes.

To this end, the instructions for completing section 4C of the Form CMS-855I provide as
follows:
10

¢ Complete this section for each of your practice locations where you render
services to Medicare beneficiaries. ... If you render services in a hospital
and/or other health care facility, furnish the name of that hospital or facility.

e Each practice location must be a specific street address as recorded by the United
States Postal Service. Do not report a P.O. Box.

e If you only render services in patients’ homes (house calls), you may supply your
home address in this section if you do not have an office. In Section 4H, explain
that this address is for administrative purposes only and that all services are
rendered in patients’ homes.

e Ifyou render services in a retirement or assisted living community, complete
this section with the names, telephone numbers and addresses of those
communities.

See, e.g., CMS Ex. 5 at 27 (emphasis added). The instructions further state, “[i]f you or
your organization sees patients in more than one practice location, copy and complete this
Section 4C for each location.” See id. at 28. Finally, the form even provides an
opportunity, in section 4H, for suppliers to “[e]xplain any unique circumstances
concerning [their] practice locations.” CMS Ex. 5 at 31. These instructions are not
overly “technical” or difficult to understand.

Petitioner argues that CMS or its contractor should have afforded Dr. Miles the
opportunity to cure his failure to accurately report his practice location pursuant to 42
C.F R. § 424.535(a)(1). P. Br. at 7. Petitioner’s argument on this point fails for two
reasons. First, effective February 3, 2015, CMS deleted from the regulation the language
affording providers and suppliers a broad right to submit a corrective action plan (CAP)
before CMS would implement a revocation. See 79 Fed. Reg. 72,500, 72,532 (December
5, 2014). Second, even under the prior regulatory language, a CAP was not available for
revocations imposed pursuant to 42 C.F.R. § 424.535(a)(5).

Petitioner relies on the following language, which formerly appeared in 42 C.F.R.
§ 424.535(a)(1):

All providers and suppliers are granted an opportunity to correct the
deficient compliance requirement before a final determination to
revoke billing privileges, except for those imposed under paragraphs
(a)(2), (a)(3), and (a)(5) of this section.

In the Federal Register notice implementing the February 3, 2015 final rule, CMS
explained that it was deleting the above-quoted sentence for several reasons, including its
view—

that providers and suppliers generally should not be exonerated from
failing to fully comply with Medicare enrollment requirements
11

simply by furnishing a CAP, for it is the duty of providers and
suppliers to always maintain such compliance.

79 Fed. Reg. at 72,523. The site visit contractor conducted the on-site visit of Dr. Miles’
purported practice location on May 8, 2015, and Novitas issued the initial determination
revoking Dr. Miles’ Medicare enrollment and billing privileges on May 28, 2015. Thus,
both actions occurred after the regulatory language had been changed.

Moreover, as Petitioner acknowledges, even under the prior regulatory language, no right to
submit a CAP attached to revocations imposed pursuant to 42 C.F.R. § 424.535(a)(5). See
P. Br. at 7. Nor does Petitioner dispute that CMS revoked Dr. Miles’ enrollment and billing
privileges pursuant to 42 C.F.R. § 424.535(a)(5). Id. Petitioner argues, however, that CMS
should instead have proceeded against Dr. Miles under 42 C.F.R. § 424.535(a)(4), based on
his certification of misleading or false information on his enrollment application. P. Br. at
7. Had CMS done so, Petitioner argues, he would have been entitled to offer a CAP before
CMS could proceed to revoke his enrollment and billing privileges. Id. This argument, too,
is unavailing. It is within CMS’s discretion to select the regulation on which it will base a
revocation action. As noted above, my authority is limited to determining whether CMS has
established a legal and factual basis for the revocation it has imposed. Even if CMS could
have established noncompliance based on a different regulation, I do not have authority to
substitute my judgment for that of CMS and direct revocation on a basis other than what
CMS has imposed.

Finally, in regard to Dr. Miles’ assertion that CMS’s reenrollment bar is too lengthy, I do
not have the authority to consider this issue. See Vijendra Dave, M.D., DAB No. 2672 at
8-11 (2016).

V. Conclusion

J affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges.

/s/
Leslie A. Weyn
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Nathaniel Witherell,
(CCN: 07-5117),
Petitioner,
v.
Centers for Medicare & Medicaid Services.

Docket No. C-16-414

Decision No. CR4673

Date: August 5, 2016

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to
impose a per-instance civil money penalty against Petitioner, Nathaniel Witherell, a
skilled nursing facility, in the amount of $1800.
I. Background
Petitioner requested a hearing to contest CMS’s findings of noncompliance and remedy
determination. CMS filed a pre-hearing exchange that included a brief plus six proposed
exhibits that are identified as CMS Ex. 1-CMS Ex. 6. Petitioner filed a brief in
opposition to CMS’s brief plus eight proposed exhibits that are identified as P. Ex. A - P.
Ex. H. I receive the parties’ exhibits into the record.
CMS included a motion for summary judgment with its pre-hearing exchange. Petitioner
opposed that motion, asserting that there are disputed issues of material fact. I find it
unnecessary to decide whether there are material facts in dispute because neither CMS
nor Petitioner established a basis for me to conduct an in-person hearing. Therefore, I

decide this case based on the parties’ exhibits and make such credibility findings as are
appropriate.
Petitioner provided affidavit testimony for three witnesses. P. Ex. A - P. Ex.C. CMS did
not request to cross-examine any of these witnesses and, therefore, it is not necessary to
convene an in-person hearing for that purpose. CMS provided sworn testimony for one
witness, Richard Howe, RN. CMS Ex. 5. Petitioner requested an in-person hearing so
that it could cross-examine Mr. Howe. Petitioner asserted that there were apparent
liscrepancies between facts cited in a statement of deficiencies for a survey of
Petitioner’s facility and facts that Mr. Howe attested to in his declaration. Petitioner
indicated that it desired to cross-examine Mr. Howe as to these alleged discrepancies.

I have examined Mr. Howe’s declaration and I find nothing in it that I rely on for this
lecision. I do not cite it nor do I rely on it in any respect. For that reason, I find cross-
examination of Mr. Howe to be unnecessary. His testimony falls into two categories.
First, he summarizes the contents of documents that he obtained while surveying
Petitioner’s facility. Second, he draws inferences from those documents and concludes
that Petitioner failed to comply substantially with regulatory requirements. As to the
locuments cited by Mr. Howe, I do not rely on his testimony at all. The documents, to
the extent that they are in evidence, speak for themselves. Mr. Howe adds nothing to the
evidence by reciting their contents in a declaration. Second, in asserting that Petitioner
failed to comply with regulatory requirements, Mr. Howe reaches conclusions of law that
he is unqualified to make. Consequently, those conclusions are irrelevant.

II. Issues, Findings of Fact and Conclusions of Law
A. Issues

The issues are: whether Petitioner failed to comply substantially with the requirements of
42 CFR. § 483.25(h); and, assuming that there was noncompliance, whether the remedy
imposed is reasonable.

B. Findings of Fact and Conclusions of Law

Summarized, 42 C.F.R. § 483.25(h) requires a skilled nursing facility to ensure that its
premises are as free from accident hazards as is possible and also to ensure that each of
its residents receives adequate supervision and assistance devices to prevent accidents.
The regulation does not impose a strict liability standard on a skilled nursing facility but
it requires the facility to take all reasonable measures in order to protect its residents
against foreseeable hazards. In order to do so, a facility must carefully monitor and
assess its residents in order to ascertain what risks the residents might encounter. It must
develop care plans that address whatever risks the facility ascertains. It must implement
those plans. And, it must continually evaluate whether the plans, as implemented, are
providing the residents with adequate protection against foreseeable risks.
CMS alleges that Petitioner failed to comply with these requirements in providing care to
a resident, identified as R92. It contends that Petitioner failed to provide this resident
with care that Petitioner’s staff determined as necessary to protect the resident against
injuring herself. It contends further that Petitioner failed to adjust the resident’s plan of
care when it became apparent to Petitioner’s staff that the assistance it developed for R92
failed to protect her adequately.

More specifically, CMS asserts that Petitioner’s staff found it necessary that R92 wear an
assistance device known as a “Geri sleeve.” This is a protective device designed to
protect an individual’s extremities against skin tears and bruising. CMS contends that
Petitioner’s staff failed to ensure that the resident wore Geri sleeves at all times,
notwithstanding the staff’s conclusion that she needed to wear them. It suggests that the
resident sustained skin tears on her arm — one so severe that it required emergency
treatment at a hospital — due to the staff’s failure to ensure that the resident wore Geri
sleeves.

CMS argues additionally that R92 sustained multiple skin tears over a period of months.
Notwithstanding, according to CMS, Petitioner failed to modify the resident’s plan of
care to establish new interventions intended to protect her. According to CMS, Petitioner
failed in two respects to consider modifying the resident’s plan of care. First, Petitioner
allegedly failed to consider whether additional or new assistance should be provided to
the resident in order to protect her against accidental injuries. Second, Petitioner
allegedly failed to take into account fully the resident’s dementia-related behavior and
failed to develop a plan to deal with that behavior.

There is little dispute as to the facts of this case. The resident in question is a woman of
advanced age whose principal impairments include relatively advanced dementia. R92 is
often combative, especially when receiving care from Petitioner’s staff and she manifests
her combativeness by striking out at caregivers. CMS Ex. | at 19-20, 45-46. Petitioner’s
staff assessed the resident as being delusional, as exhibiting threatening and aggressive
verbal behavior one to three times daily, and rejecting care. Id. at 2-15.

R92’s problems are complicated by the fact that she has skin integrity issues. The fragile
condition of her skin makes her susceptible to injury, including skin tears. In fact, the
resident has sustained multiple skin tears, often as a consequence of her combative
behavior. On September 1, 2015, the resident sustained a skin tear to her left forearm
when she became combative while receiving care. CMS Ex. | at 46. She sustained
another tear on September 11, 2015, when she bumped her lower right leg. Id. at 47. On
September 17, 2015, R92 became agitated and aggressive when a nursing assistant
attempted to provide incontinence care. As a consequence she sustained another skin tear
to her left forearm, which bled profusely. Id. at 34, 51-52. This injury necessitated
transporting the resident to an emergency room where she received sutures.

Petitioner developed and implemented a care plan in October 2014 that addressed R92’s
various problems. CMS Ex. | at 19-33. The staff amended the plan from time to time
and memorialized these amendments with handwritten annotations. Id. The plan
included interventions that were intended to address R92’s skin issues. These included:
conducting systematic weekly inspections of the resident’s skin to assess her for skin
tears and bruising; dressing the resident in long sleeved shirts and pants in order to
protect her extremities; handling the resident with care while giving her direct care;
keeping the resident’s skin lubricated; and having the resident wear a Geri sleeve on her
left forearm. Id. at 20. The care plan noted that the resident was noncompliant with the
lattermost intervention, suggesting that she would remove the Geri sleeve. I note that
prior to September 17, 2015, none of the handwritten amendments consisted of
modifications of or additions to the original interventions designed to address the
resident’s skin integrity problems.

Petitioner’s staff implemented additional interventions on September 18, 2015, after the
resident had sustained a skin tear that required sutures. On that date, the staff determined
that the resident should wear Geri sleeves on both arms at all times except when she was
receiving hygiene. CMS Ex. | at 56. Additionally, the staff determined that two
caregivers would be present when the resident received care. Id.

CMS contends that the resident was not wearing a Geri sleeve or sleeves on September |
and 17, 2015, in contravention of the express requirements of her plan of care, when she
sustained skin tears. CMS argues that I should infer this from the fact that notes
pertaining to these incidents are silent as to whether the resident was wearing a Geri
sleeve on those occasions. Petitioner does not deny that the resident was not wearing a
Geri sleeve when she sustained her September | and 17 injuries. It asserts, however, that
these incidents occurred at night and that Petitioner never intended that the resident wear
a Geri sleeve at night. Consequently, according to Petitioner, R92 was receiving care that
was entirely consistent with her plan of care.

I find Petitioner’s argument to be unpersuasive. Petitioner’s staff plainly concluded that
wearing a Geri sleeve was a necessary protection for R92. It identified this intervention
as an appropriate way of protecting the resident from skin tears and bruising. Although
Petitioner’s staff now avers that they never intended that the resident wear a Geri sleeve
at night, the care plan is silent as to whether the sleeve would be removed in the evening.
CMS Ex. 1 at 20. I do not accept Petitioner’s assertion that the sleeve was to be removed
in the evening in the absence of anything in the resident’s care plan suggesting that was
part of the care intended for the resident. See P. Ex. A; P. Ex. B. Furthermore, Petitioner
has offered no corroborative documentation, such as nursing notes, suggesting that the
staff was instructed to remove the sleeve in the evening.

But, even if staff intended to remove the resident’s sleeve at night, the question remains:
how was the staff going to protect R92 when they provided nighttime care to the
resident? There is nothing in the plan of care that addresses that issue. If the plan
intended that a necessary protection be removed at night, it failed completely to provide
alternate measures of protecting the resident from skin tears.

There is also nothing in the resident’s care plan prior to September 18, 2015, to show that
Petitioner’s staff evaluated R92 and developed new interventions to protect the resident.
Essentially, the care plan developed in October 2014 contained the sole interventions
addressing the resident’s propensity for developing skin tears notwithstanding the fact
that the plan obviously was not working to protect the resident.

It should have been obvious to Petitioner’s staff that the interventions developed in
October 2014 were not working adequately to protect the resident from sustaining skin
tears. She sustained multiple skin tears after October 2014. CMS Ex. | at 45-47. But,
from October 2014 until September 18, 2015, after the resident was sent to the
emergency room for treatment of the tear that she sustained on September 17, there are
no additional interventions noted in the plan that were designed specifically to address
the resident’s ongoing problems with skin tears. There is no assessment, for example, as
to whether the resident’s use of a Geri sleeve was effective. There is no discussion of the
problems caused by the resident’s apparent propensity to remove her sleeve. There is no
analysis of the resident’s dementia in relationship to her propensity for developing skin
tears and there are no additional interventions designed to address what might have been
the resident’s worsening dementia.

Petitioner argues that, in fact, its staff conducted ongoing evaluations of R92’s condition.
It contends that the staff did not amend the resident’s care plan with new interventions
because they determined that none were needed. To this end, Petitioner offers the
testimony of Jayne Kennelly, R.N., a member of Petitioner’s staff who provided care to
the resident. She avers that:

As a group . . . [the staff] considered the September 1, 2015 skin tear and
made a determination that the extensive interventions already in place
continued to be the most reasonable and appropriate to protect R92.

P. Ex. C at 2. I find this declaration to be unpersuasive for more than one reason. First,
Petitioner has offered no records whatsoever that show that its staff actually conducted
this alleged assessment. But, beyond that, I am baffled as to why the staff would believe
that no additional interventions were necessary after September |. By that date, the
resident had demonstrated that she: was noncompliant due to her dementia; was often
combative; and had sustained multiple skin tears as a result of her noncompliance and
combativeness. Notwithstanding, the staff continued to rely on a set of interventions that
was not working and provided no explanation of why they would do so. Furthermore,
there is not a shred of documentary evidence showing that the staff even considered
additional interventions much less that they made an assessment that such interventions
would be unnecessary.

Petitioner also offers the testimony of Francis X. Walsh, M.D., Petitioner’s medical
director, to support its argument that the skin tears that R92 sustained were unavoidable.
P. Ex. B at 2-3. It may be that the skin tears that the resident sustained were unavoidable.
Had Petitioner implemented all reasonable measures to address the resident’s propensity
for developing skin tears I would not hold it liable for the tears that the resident sustained
if she sustained tears despite the implementation of those measures. But, the fact is that
Petitioner did not investigate whether additional measures might have better protected the
resident. The deficiency in this case does not hinge on whether the resident sustained
avoidable tears. Rather, it emanates from Petitioner’s passiveness in the face of a
continuing problem that its staff neither investigated nor instituted additional
interventions for almost a year.

I find that a civil money penalty of $1800 is reasonable. CMS is authorized to impose
per instance penalties of from $1000 to $10,000 for each instance of noncompliance by a
skilled nursing facility. 42 C.F.R. § 488.438(a)(2). Here, it determined to impose a
penalty that is on the low end of the permissible range, comprising only 18 percent of the
maximum allowable amount. The seriousness of Petitioner’s noncompliance certainly
supports the modest penalty that CMS imposed here. 42 C.F.R. § 488.404. The failure
of Petitioner’s staff to consider the efficacy of the measures that it had developed to
protect R92 is, in and of itself, sufficiently serious to justify the penalty amount.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Tamara Rene Taylor
(OI File No. H-15-4-42431-9),

Petitioner,
v.
The Inspector General.
Docket No. C-16-430
Decision No. CR4671

Date: August 4, 2016

DECISION

The Inspector General (IG) of the United States Department of Health and Human
Services excluded Petitioner, Tamara Rene Taylor, from participation in Medicare,
Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the
Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)) for a minimum period of five
years. For the reasons discussed below, I conclude that the IG has a basis for excluding
Petitioner, and that an exclusion for the minimum period of five years is mandatory
pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).

I. Background

In a letter dated January 29, 2016, the IG excluded Petitioner from participation in
Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f)
of the Act (42 U.S.C. § 1320a-7b(f)) for a minimum period of 5 years, effective 20 days
from the date of the letter. IG Exhibit (Ex.) | at 1. The IG explained that Petitioner’s
exclusion was based on a “conviction as defined in section 1128(i) (42 U.S.C. [§] 1320a-
7(i)), in the Court of Common Pleas, Franklin County, Ohio, of a criminal offense related
to the delivery of an item or service under the Medicare or a State health care program,
including the performance of management or administrative services relating to the
delivery of items or services, under any such program.” IG Ex. | at 1. The IG explained
Petitioner was excluded pursuant to section 1128(a)(1) of the Act, which mandates the
exclusion of any individual who is convicted under federal or state law of a criminal
offense related to the delivery of an item or service under Medicare or any state health
care program. 42 U.S.C. § 1320a-7(a)(1). The IG informed Petitioner that the exclusion
was for “the minimum statutory period of 5 years.” IG Ex. | at 1; see 42 U.S.C. § 1320a-

7(c)3)(B).

Petitioner submitted a timely request for hearing that was dated March 7, 2016, and
received on March 25, 2016. On April 20, 2016, pursuant to 42 C.F.R. § 1005.6, I
presided over a telephonic pre-hearing conference, and that same day I issued an Order
and Schedule for Filing Briefs and Documentary Evidence (Order).

Pursuant to my Order, the IG filed an informal brief (IG Br.) and a reply brief, along with
five exhibits (IG Exs. 1-5). Petitioner failed to file a timely informal brief, and after
showing good cause for her late filing in response to a June 30, 2016 Order to Show
Cause, Petitioner filed an informal brief (P. Br.) and one exhibit (P. Ex. 1). I admit the
parties’ submissions and exhibits into the record.

Petitioner has requested a live hearing for the sole purpose of permitting her to “[t]estify
as to the date she was first excluded in Ohio.” P. Br. at 3. Petitioner alleged in her brief
that she was excluded by the State of Ohio for a period of five years, effective June 24,
2014. I observe that the State of Ohio publicly reports that Petitioner was excluded on
June 17, 2014, and that her exclusion was added to the public listing on June 24, 2014.
Ohio Medicaid Provider Exclusion and Suspension List,
http://www.medicaid.ohio.gov/PROVIDERS/EnrollmentandSupport/ProviderExclusionan
dSuspensionList.aspx, last visited August 1, 2016. Testimony is therefore unnecessary to
establish the date of Petitioner’s exclusion from the Ohio Medicaid program.
Furthermore, as I will explain below, the date of Petitioner’s exclusion by the State of
Ohio has no relevance to the instant exclusion. A hearing is unnecessary and I will
decide this case based on the written submissions and documentary evidence. See Order
§V.

II. Issue

The issue in this case is whether there is a legal basis under section 1128(a)(1) 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, I am required
to uphold the mandatory exclusion for a minimum of five-years.
III. Jurisdiction
Ihave 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 was convicted of an offense related to the delivery of a
health care item or service under a state Medicaid program, which is
an offense, pursuant to section 1128(a)(1) of the Act, that subjects her
to a mandatory exclusion from all federal health care programs for a
minimum of five years.

Section 1128(a)(1) requires a mandatory exclusion from all federal health care programs
under certain conditions. Section 1128(a)(1) states:

(a) Mandatory exclusion

The Secretary shall exclude the following individuals and entities
from participation in any Federal health care program (as defined in
section 1128B(f)):

(1) Conviction of program-related crimes--

Any individual or entity that has been convicted of a criminal
offense related to the delivery of an item or service under title
XVIII or any State health care program.

See 42 U.S.C. § 1320a-7(a)(1).

The IG argues that Petitioner was properly excluded from all federal health care
programs based on a conviction for an offense that was related to the delivery of a health
care item or service under the Ohio Medicaid program. IG Br. at 4-6. Petitioner, who is
represented by counsel, concedes in her informal brief that she was convicted of a
criminal offense for which exclusion is required, stating that “[t]he focus of this appeal is
not that Tamara Taylor should be excluded, but the date the exclusion should begin.” P.
Br. 2-3. As explained below, I find that Petitioner was convicted of a criminal offense,
for purposes of the Act, that mandates exclusion from all federal health care programs
effective February 18, 2016.

' My findings of fact and conclusions of law are set forth in italics and bold font.
On or about June 17, 2014, a grand jury in the State of Ohio returned a true bill of
indictment charging that Petitioner committed three felony offenses of Medicaid Fraud,
Falsification in a Theft Offense, and Complicity to Commit Theft by Deception.” IG Ex.
3 at 1-3. On March 12, 2015, Petitioner, with the assistance of the same counsel who
currently represents her in the instant case, entered a guilty plea to the offense of
Tampering with Records, in violation of Ohio Revised Code § 2913.42. IG Exs. 2 at 1,4
at 1. On April 24, 2015, Petitioner was sentenced to 30 days of incarceration, which was
suspended, and a two-year period of probation. Petitioner was also ordered to pay
$2,045.08 in restitution and to fully cooperate with the State of Ohio in its investigation
of other health care fraud and to testify truthfully at proceedings. IG Ex. 2 at 2. The
sentencing judge acknowledged that Petitioner’s guilty plea was to “the stipulated lesser
included offense of Count One of the Indictment, to wit: Tampering with Records.”* IG
Ex. 2 at 1.

I find that Petitioner has been convicted of a criminal offense relating to the delivery of
an item or service under the Ohio Medicaid program, a state health care program. 42
C.F.R. § 1001.2. Pursuant to section 1128(i)(3) of the Act, a petitioner is considered to
have been convicted of a criminal offense “when a plea of guilty or nolo contendere by
the individual or entity has been accepted by a Federal, State, or local court.” 42 U.S.C.
§ 1320a-7(i)(3). On March 12, 2015, Petitioner entered “‘a reasoned and valid Alford
Plea of guilty to the stipulated lesser offense of Count One of the Indictment.” IG Ex. 4
at 1; IG Ex. 2 at 1. Count One of the indictment was a charge of Medicaid fraud (IG Ex.
3 at 1-2), and Petitioner entered a plea of guilty to the offense of Tampering with
Records. IG Ex. 4 at 1. The sentencing judge determined that Petitioner entered a plea of
guilty to a lesser and included offense of Medicaid Fraud, which had originally been
charged as a felony offense by criminal indictment. IG Exs. 2 at 1; 3 at 1-2. The IG
correctly determined that Petitioner had been convicted pursuant to 42 U.S.C. § 1320a-
7(i)(3), and Petitioner concedes as much in her brief. P. Br. at 3.

Congress, through enactment of the Act, determined that an individual who has been
convicted of a criminal offense relating to an item or service under Medicare or a state
health care program must be excluded from federal health care programs for no less than
five years, and it afforded neither the IG nor an administrative law judge (ALJ) the
discretion to impose an exclusion of a shorter duration. 42 U.S.C. § 1320a-7(c)(3)(B).

> The indictment stated that the offenses were in violation of Ohio Revised Code
§§ 2913.40(B), 2921.13(A)(9), and 2923.03 and 2913.02(A)(3).

> Count One of the indictment charged that Petitioner “did knowingly make or cause to
be made false or misleading statements or representations to the Ohio Department of Job
and Family Services, in claims for services purportedly rendered under the Ohio Medical
Assistance Program, all for use in obtaining reimbursement from the Ohio Medical
Assistance Program, also known as Medicaid.” IG Ex. 3 at 1.

Even if I were so inclined, I cannot shorten the length of the exclusion because I do not
have authority to “find invalid or refuse to follow Federal statutes or regulations.” 42
C.F.R. § 1005.4(c)(1). I therefore agree with the IG and Petitioner that an exclusion for a
minimum period of five years is mandated.

2. The effective date of Petitioner’s exclusion is February 18, 2016.

Petitioner states that “[i]t is not that she should not be excluded,” but rather disputes “the
date the exclusion should begin.” P. Br. at 3. Petitioner further concedes that she is
unsure whether “this reviewing body has jurisdiction to correct this travesty.” P. Br. at 3.
Petitioner argues that because she was excluded by the State of Ohio for five years,
effective June 2014, and her federal exclusion began in February 2016, the total
combined period of exclusion by the state and federal exclusion authorities results in an
approximately 20-month period longer than five years. P. Br. at 3. Petitioner argues that
her “Constitutional Rights are being violated” and that “[h]er being excluded beyond the
intended 5-years of both the Ohio and Federal law amounts to double jeopardy for the
additional 20 months.” P. Br. at 3.

The Departmental Appeals Board (Board) has explained that an ALJ does not have the
authority to alter the effective date of an exclusion. Lisa Alice Gantt, DAB No. 2065 at
2-3 (2007). In addressing the effective date of an exclusion, the Board stated the
following:

The Board has repeatedly held that the applicable statute and regulations
give an ALJ no authority to adjust the beginning date of an exclusion by
applying it retroactively. Thomas Edward Musial, DAB No. 1991, at 4-5
(2005), citing Douglas Schram, R.Ph., DAB No. 1372, at 11 (1992)
(“Neither the ALJ nor this Board may change the beginning date of
Petitioner’s Exclusion.”); David D. DeFries, DAB No. 1317, at 6 (1992)
(“The ALJ cannot . . . decide when [the exclusion] is to begin.”); Richard
D. Phillips, DAB No. 1279 (1991) (An ALJ does not have “discretion . . .
to adjust the effective date of an exclusion, which is set by regulation.”);
Samuel W. Chang, M.D., DAB No. 1198, at 10 (1990) (“The ALJ has no
power to change . . . [an exclusion’s] beginning date.”). In Schram, we
held that this lack of discretion extends to the Board as well as the ALJs,
and we reiterated that holding in Musial.

Gantt, DAB No. 2065 at 2-3 (footnote omitted). The effective date of the exclusion,
February 18, 2016, is 20 days after the date of the IG’s January 29, 2016 letter and is
established by regulation (42 C.F.R. § 1001.2002(b)); I am bound by that regulation. 42
CFR. § 1005.4(c)(1).
As I explained at the outset of the decision, the IG excluded Petitioner from participation
in Medicare, Medicaid, and all federal health care programs as defined in section
1128B(f) of the Act (42 U.S.C. § 1320a-7b(f)). The nature of this exclusion is broad, and
is distinct from any exclusion imposed by the State of Ohio. While the state and federal
exclusions may overlap to some extent, the “overlap between the two exclusions . . . does
not mean that the exclusions themselves are the same or should be treated as such for the
purposes of assignment of effective dates.” Shaikh M. Hasan, M.D., DAB No. 2648 at 8
(2015). The effective date of the exclusion by the State of Ohio has no bearing on the
effective date of the IG exclusion. Id.; 42 C.F.R. § 1001.2002(b) (date of exclusion will
be effective 20 days from the date of the notice); 42 C.F.R. § 1005.4(c)(1) (ALJ does not
have the authority to refuse to follow federal regulations).

With respect to Petitioner’s claim that she has been subject to double jeopardy and
therefore her constitutional rights have been violated, the Board in the aforementioned
Hasan decision stated that such an argument was “without merit,” noting that “the courts
and the Board have held that exclusions under section 1128 are civil and remedial
sanctions, not criminal and punitive sanctions” and that an IG exclusion “does not subject
a petitioner to double jeopardy.” Hasan, DAB No. 2648 at 13-14; see U.S. Constitution,
Amendment V (stating “nor shall any person be subject for the same offense to be twice
put in jeopardy of life or limb”).

V. Conclusion

For the foregoing reasons, I affirm the IG’s decision to exclude Petitioner from
participation in Medicare, Medicaid, and all other federal health care programs for a
minimum period of five years, effective February 18,2016.

/s/
Leslie C. Rogall
Administrative Law Judge