Kevin Harris, M.D., DAB CR5061 (2018)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through its Medicare administrative contractor, revoked the Medicare enrollment and billing privileges of Kevin Harris, M.D. (Dr. Harris or Petitioner) pursuant to 42 C.F.R. § 424.535(a)(3) and (a)(4) because, within the preceding ten years, Dr. Harris was convicted of a felony that CMS determined was detrimental to the interests of the Medicare program and its beneficiaries, and because he failed to disclose the conviction on his enrollment application.  Petitioner acknowledges that he pled guilty, but he denies that his guilty plea was a conviction, and therefore, the revocation authority at 42 C.F.R. § 424.535(a)(3) does not apply.  Petitioner also contends that because he was not convicted of a felony, he did not certify as true, false or misleading information on his Medicare enrollment application, and as a result, CMS’s revocation authority under 42 C.F.R. § 424.535(a)(4) is also inapplicable.  Petitioner further contends that his agreed disposition should not be deemed detrimental to the Medicare program or its beneficiaries.  For the reasons explained below, I conclude that CMS had a legal basis to revoke Dr. Harris’s Medicare enrollment and billing privileges.  Accordingly, I affirm the revocation.

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I. Background

The following facts are undisputed.  Dr. Harris is a licensed physician and surgeon in Illinois, who was enrolled as a supplier of Medicare services.  CMS Exhibit (Ex.) 3 at 1.

On August 16, 2012, Dr. Harris pled guilty in the Circuit Court for the Sixteenth Judicial Circuit, Kendall County, Illinois (County Court) to Possession of Controlled Substances, a Class 4 felony, in violation of 720 Ill. Comp. Stat. 570/402(c) and entered into an agreed disposition of probation.  P. Ex. 2.  As a result of his guilty plea, the County Court sentenced Dr. Harris to 24 months of probation, a $1,785 fine, 50 hours of public service work, and he was required to pay for and submit to a drug and alcohol assessment.  CMS Ex. 2 at 7.  Dr. Harris complied with his obligations under the agreement, and he was discharged from probation after 18 months.  P. Ex. 9 at 2; see also P. Ex. 1.

On June 22, 2016, Dr. Harris submitted an online enrollment application for revalidation of Medicare billing privileges via the Provider Enrollment, Chain, and Ownership System (PECOS).  CMS Ex. 3.  Dr. Harris did not disclose his guilty plea in section 3 of the 855B revalidation application, entitled “Final Adverse Legal Actions.”  CMS Ex. 3 at 2.  On June 24, 2016, Medicare contractor National Government Services (NGS) emailed Dr. Harris, requesting information about adverse legal actions.  P. Ex. 9 at 3.1  On July 22, 2016, Dr. Harris responded to NGS’s request for information about adverse legal actions in a letter.  CMS Ex. 4.  Dr. Harris wrote:

At no time was I ever convicted of anything.  I was charged, pled guilty, was granted probation, and completed all requirements of my probation successfully, and the charges were dropped.  The medical board investigated, gave me a hearing, where I was given probation.  At no time was my ability to practice ever suspended.

CMS Ex. 4 at 3.

On October 31, 2016, NGS, acting on behalf of CMS, sent a letter to Dr. Harris informing him that his billing privileges were being revoked effective August 16, 2012, pursuant to 42 C.F.R. § 424.535(a)(3) and (a)(4), based on Dr. Harris’s felony conviction for possession of controlled substances and because Dr. Harris failed to disclose the conviction on his enrollment application.  CMS Ex. 1.  In addition, NGS informed Dr. Harris that he was subject to a re-enrollment bar of three years.  CMS Ex. 1 at 2.

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In a letter dated November 12, 2016, counsel for Petitioner requested reconsideration.  CMS Ex. 2 at 1.  By letter dated February 10, 2017, CMS, through its Provider Enrollment & Oversight Group, issued an unfavorable reconsidered determination.  CMS Ex. 6.  In the reconsidered determination, CMS expressly determined that Dr. Harris’s conviction was for an offense detrimental to the Medicare program and its beneficiaries:

Dr. Harris’s conviction is detrimental to the Medicare program and its beneficiaries due to the nature of the offense under 42 C.F.R. § 424.535(a)(3)[(ii)](C).  A supplier is someone who is placed in a position of trust and care for beneficiaries, sensitive information, along with access to highly addictive prescription drugs.  Therefore, a supplier who is convicted of felony possession of a controlled substance has shown himself to be a supplier who raises concern because enrollment in the Medicare program allows unfettered access to beneficiaries, sensitive information, and prescription drugs.

CMS Ex. 6 at 4.

Petitioner requested a hearing and the case was assigned to me.  I issued an Acknowledgement and Pre-Hearing Order (Order) dated May 10, 2017, which directed each party to file a prehearing exchange consisting of a brief and any supporting documents, and also set forth the deadlines for those filings.  Order ¶¶ 4-5.  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 ¶ 10.  In response to the Order, CMS filed a motion for summary judgment and brief (CMS Br.) and six proposed exhibits (CMS Exs. 1-6).  Petitioner, through counsel, filed a brief opposing summary judgment (P. Br.).  Petitioner offered nine exhibits (P. Exs. 1-9).  Petitioner did not object to CMS’s proposed exhibits; nor did CMS object to Petitioner’s exhibits.  See Order ¶ 7.  Therefore, in the absence of objection, I admit into the record CMS Exs. 1-6 and P. Exs. 1-9.

In its motion for summary judgment, CMS argues that there are no material facts in dispute that would require a hearing.  CMS Br. at 1.  Petitioner opposes CMS’s motion and requests to present the testimony of Dr. Harris at a hearing.  See P. Br.  Petitioner offered the written direct testimony of Dr. Harris as required by paragraph 8 of my Order.  P. Ex. 9.  However, CMS did not request to cross-examine Dr. Harris, accordingly, an in-person hearing is not necessary.  Order ¶¶ 9, 10.  Moreover, as explained more fully below, Dr. Harris’s proffered testimony does not raise a genuine issue of material fact.  Therefore, because there is no dispute as to any material fact and I may decide this case on summary judgment, I need not convene a hearing.

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II. Issues

The issues in this case are:

Whether summary judgment is appropriate;

Whether CMS had a legal basis to revoke Dr. Harris’s Medicare enrollment and billing privileges because, during the preceding ten years, Dr. Harris was convicted of a felony offense that CMS determined is detrimental to the best interests of the Medicare program and its beneficiaries; and

Whether CMS had a legal basis to revoke Dr. Harris’s Medicare enrollment and billing privileges because Dr. Harris included false or misleading information in his enrollment application.

III. Jurisdiction

I have jurisdiction to decide this case.  42 C.F. R. §§ 498.3(b)(17), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

IV. Discussion

A. Statutory and Regulatory Framework

As a physician, Dr. Harris is 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).  In order to participate in the Medicare program as a supplier, individuals and entities 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 C.F.R. § 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 the revocation is based on a felony conviction, the revocation is effective with the date of the conviction.  42 C.F.R. § 424.535(g).

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B. Findings of Fact, Conclusions of Law, and Analysis

1. Summary judgment is appropriate because there is no dispute as to any material fact.2

Summary judgment is appropriate if “the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (citations omitted).  The moving party must show that there are no genuine issues of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Id.  If the moving party meets its initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial . . . .’”  Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).  “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact—a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab., DAB No. 2300 at 3 (citations omitted).  To determine whether there are genuine issues of material fact for hearing, an ALJ must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  Id.

There is no genuine dispute as to any material fact in this case.  Petitioner acknowledges that he pled guilty to the felony offense of possession of a controlled substance.  CMS Ex. 2 at 3; P. Br. at 14.  Petitioner admits the conviction occurred within ten years of NGS’s initial determination to revoke his Medicare billing privileges.  P. Br. at 10.  Petitioner also admits that he did not disclose an adverse legal action in section three of his Medicare enrollment application.  CMS Ex. 4 at 3.  Petitioner further admits that the definition of “convicted,” which includes situations where a court has “accepted a plea of guilty,” in 42 C.F.R. § 1001.2 governs.  P. Br. at 14; CMS Br. at 4.  These are the sole material facts on which the revocation action depends.

Petitioner interposes the following arguments:  (1) that Dr. Harris’s guilty plea was not a conviction; (2) that because Dr. Harris was not convicted, he was not required to disclose the guilty plea on his Medicare enrollment application; and (3) that his conviction was not detrimental to the best interests of the Medicare program and its beneficiaries.  However, these arguments raise purely legal issues which are properly addressed on summary judgment.  Further, although Petitioner has proposed a witness, he has not identified any material fact he proposes to prove through the witness’s testimony.  Finally, even accepting Petitioner’s factual representations as true for purposes of ruling

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on the motion for summary judgment, CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate.

2. CMS had a legal basis to revoke Dr. Harris’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) because, within the ten years prior to revocation, Dr. Harris was convicted of a felony offense that CMS determined to be detrimental to the best interests of the Medicare program and its beneficiaries.

CMS may revoke a supplier’s enrollment in the Medicare program if, within the preceding ten years, the supplier 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. § 424.535(a)(3)(i); see also Social Security Act (Act) §§ 1842(h)(8) (authorizing the Secretary of Health and Human Services to deny enrollment to a supplier that 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 or terminate enrollment after he ascertains that a supplier has been convicted of a felony that he “determines is detrimental to the best interests of the program or program beneficiaries”).

a. Dr. Harris was convicted of a felony offense.

Petitioner argues that Dr. Harris was not “convicted” because the criminal charges against him were ultimately dismissed, pursuant to section 410 of the Illinois Controlled Substances Act, upon his successful completion of probation.  P. Br. at 7-8.  However, the disposition of Dr. Harris’s criminal case falls within the federal definition of conviction, without regard to whether the disposition would be regarded as a conviction under Illinois state law.

Section 424.535(a)(3) of the regulations defines “conviction” by cross-referencing the definition at 42 C.F.R. § 1001.2.  Section 1001.2, in turn, defines “conviction” as follows:

Convicted means that—

(a) A judgment of conviction has been entered against an individual or entity by a Federal, State or local court, regardless of whether:
(1) There is a post-trial motion or an appeal pending, or
(2) The judgment of conviction or other record relating to the criminal conduct has been expunged or otherwise removed;
(b) A Federal, State or local court has made a finding of guilt against an individual or entity;
(c) A Federal, State or local court has accepted a plea of guilty or nolo contendere by an individual or entity; or

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(d) An individual or entity has entered into participation in a first offender, deferred adjudication or other program or arrangement where judgment of conviction has been withheld.

The criminal proceeding against Dr. Harris meets the definition of “convicted” under subsections (c) and (d) of the regulation.  First, Dr. Harris pled guilty and the County Court accepted his plea.  P. Ex. 2 at 17.  This is sufficient to meet the definition at 42 C.F.R. § 1001.2(c).  Second, Dr. Harris pled guilty pursuant to 720 Ill. Comp. Stat. 570/410, which provides, in relevant part:

(a) Whenever any person who has not previously been convicted of any felony offense under this Act or any law of the United States or of any State relating to cannabis or controlled substances, pleads guilty to or is found guilty of possession of a controlled or counterfeit substance under subsection (c) of Section 402 or of unauthorized possession of prescription form under Section 406.2, the court, without entering a judgment and with the consent of such person, may sentence him or her to probation.

* * *

(f) Upon fulfillment of the terms and conditions of probation, the court shall discharge the person and dismiss the proceedings against him or her.

(g) A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.

I find that, in pleading guilty and being sentenced to probation under 720 Ill. Comp. Stat. 570/410, Dr. Harris participated in a “first offender, deferred adjudication or other program or arrangement where judgment of conviction has been withheld,” within the meaning of 42 C.F.R. § 1001.2(d).

Petitioner’s argument that he cannot be considered to have been convicted because the criminal charges against him have been dismissed and he has no record of conviction under Illinois law is unavailing.  See P. Br. at 7-8.  Appellate panels of the Departmental Appeals Board (DAB) have long held that dispositions similar to that in which Dr. Harris participated are convictions under federal law.  For example, in Carolyn Westin, the panel explained:

If there were no definition of “convicted” in the Act, then Petitioner's arguments about whether a conviction exists as commonly understood or for state law purposes would be relevant.  However, Congress has defined for

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the [administrative law judge] and this Board what “convicted” means for purposes of section 1128 and that definition is binding on us.  Moreover, it is clear from the legislative history of this provision that Congress adopted such broad definitions to ensure that exclusions from federally funded health programs would not hinge on state criminal justice policies.

DAB No. 1381 at 3-4 (1993), aff’d sub nom Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994); see also Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008) (individual was convicted for purposes of section 1128 of the Social Security Act after pleading nolo contendere, even though all charges were dismissed after he successfully completed a 60-day diversion program).3  Thus, for the reasons explained in the Westin and Gupton decisions, whether or not Dr. Harris is regarded as convicted under Illinois law, his guilty plea and probation under 720 Ill. Comp. Stat. 570/410 represents a conviction on which CMS may base a decision to revoke Dr. Harris’s Medicare enrollment and billing privileges.  Moreover, as I discuss in the following section, CMS was authorized to and did determine that the offense for which Dr. Harris was convicted was detrimental to the best interests of the Medicare program and its beneficiaries.

b. CMS acted within its discretion to determine that the offense for which Dr. Harris was convicted is detrimental to the best interests of the Medicare program and its beneficiaries.

In promulgating 42 C.F.R. § 424.535(a)(3), the Secretary of HHS determined that certain enumerated crimes are detrimental per se to Medicare.4  See Letantia Bussell, M.D., DAB No. 2196 at 9 (2008).  Criminal offenses deemed detrimental per se include—but are not limited to—felony crimes against persons, such as murder, rape, assault, and similar crimes; financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and similar crimes; felonies that place the Medicare program or its beneficiaries at

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immediate risk (such as convictions for criminal neglect or misconduct); and felonies that would result in mandatory exclusion under section 1128 of the Act.  42 C.F.R. § 424.535(a)(3)(ii)(A)-(D).

In its reconsidered determination, CMS concluded that Dr. Harris’s felony conviction was detrimental to the Medicare program and its beneficiaries under 42 C.F.R. § 424.535(a)(3)(ii)(C).  CMS Ex. 6 at 4.  That subsection describes crimes that “placed the Medicare program or its beneficiaries at immediate risk” and cites as an example “a malpractice suit that results in a conviction of criminal neglect or misconduct.”  42 C.F.R. § 424.535(a)(3)(ii)(C).  Petitioner argues that the offense to which Dr. Harris pled guilty is “not enumerated in the regulations as a conviction that is detrimental per se to the program and its beneficiaries.”  P. Br. at 9.  Petitioner points out that Dr. Harris was not charged with a crime that is “related to criminal neglect or misconduct arising from malpractice, and it does not involve as an element that someone was placed in imminent danger or harm.”  Id.

While I agree that Dr. Harris was not convicted of criminal neglect or misconduct related to malpractice, this is not dispositive of whether the offense is one described in 42 C.F.R. § 424.535(a)(3)(ii)(C).  The question to be resolved is whether the conviction is one that placed the Medicare program or beneficiaries at immediate risk.  The cited example, a conviction for criminal neglect or misconduct arising from medical malpractice, suggests that the subsection is intended to reach suppliers who are convicted of crimes that call into question their ability to practice medicine safely.  CMS could, and did, reasonably conclude that the felony for which Dr. Harris was convicted, unlawful possession of a controlled substance, raised an inference that he was unable to practice medicine safely.  Whether or not I personally believe that the conduct for which Dr. Harris was convicted posed an immediate risk to Medicare or its beneficiaries is irrelevant.  I may not substitute my own determination as to whether a given felony is detrimental to the Medicare program and its beneficiaries for that of CMS.  See Brian K. Ellefsen, DO, DAB No. 2626 at 7 (2015).  Therefore, I find that CMS did not err in determining that Dr. Harris’s conviction was one described in 42 C.F.R. § 424.535(a)(3)(ii)(C).

Moreover, even if Dr. Harris had not been convicted of a crime enumerated in 42 C.F.R. § 424.535(a)(3)(ii)(C), this would not eliminate the basis for revocation.  This is so because CMS is authorized to determine, on a case-by-case basis, that a particular felony conviction is detrimental to Medicare and its beneficiaries and therefore supports revocation.  See, e.g., Saeed A. Bajwa, M.D., DAB No. 2799 at 8, 10-11 (2017) (42 C.F.R. § 424.535(a)(3)(i) authorizes CMS to determine what felony convictions are a basis for revocation; CMS is not limited to the felonies enumerated as examples).  In the present case, CMS argues that Dr. Harris’s conviction reflects unfavorably on Dr. Harris’s trustworthiness and is therefore detrimental to the Medicare program and its beneficiaries.  CMS Br. at 4.

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As I have explained above, I may not substitute my own determination as to whether a given felony is detrimental to the Medicare program and its beneficiaries for that of CMS.  Ellefsen, DAB No. 2626 at 7.  In this case, it is apparent that CMS exercised its discretion, pursuant to 42 C.F.R. § 424.535(a)(3)(i), to determine that Dr. Harris’s felony conviction is detrimental to the Medicare program and its beneficiaries and, accordingly, warrants revocation.  See Bajwa, DAB No. 2799 at 8, 10-11.  CMS itself issued the reconsidered determination in which it expressly found that Dr. Harris’s conviction is detrimental to the Medicare program and its beneficiaries because the conviction calls into question whether Dr. Harris can be trusted with access to sensitive information and access to highly addictive prescription drugs.  CMS Ex. 6 at 4.

Petitioner argues that CMS did not make a proper determination to revoke Dr. Harris’s Medicare enrollment and billing privileges because it did not explain how it undertook its case-by-case determination that Dr. Harris’s felony offense was detrimental to the best interests of the Medicare program or its beneficiaries.  P. Br. at 12.  Petitioner argues that the decision in Barry Ray, M.D., DAB CR3655 (2015) compels CMS to engage in an individualized analysis that articulates how CMS determined that a given felony is detrimental.  P. Br. at 12.  While certain statements of the administrative law judge in the Ray decision could be read to impose on CMS an obligation to conduct and articulate a detailed inquiry into how and why CMS made its determination, see DAB CR3655 at 13,that is not the only possible reading.5

Significantly, in the Ray decision, the administrative law judge noted that the reconsidered determination “failed to provide any explanation as to why the felony would be detrimental to the best interests of the program or its beneficiaries.”  Ray, DAB CR3655 at 10 (emphasis added).  Given the apparent lack of any rationale for the determination, the Ray decision can be read as consistent with appellate decisions of the DAB which hold that, so long as it is clear that CMS has exercised its discretionary authority and has articulated a basis for its conclusion that a particular felony is detrimental to Medicare, it is not required to provide a detailed analysis of its decision making process.  For example, in Ellefsen, the panel stated:

The regulations governing this proceeding require only that an adverse reconsidered determination must specify the “reasons for the determination” and the “conditions or requirements of law or regulations that the affected party fails to meet.”  42 C.F.R. § 498.25(a)(2), (3).  Thus, if CMS exercises its discretion to deny a provider’s or supplier’s application to participate in Medicare, CMS must identify the authority that gives it that discretion, i.e., in this case, the authority in section 424.530(a)(3) to deny an application

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based on a felony conviction within the 10 years preceding the application.  However, no regulation provides that CMS must explain its reasons for exercising its discretion to deny an application based on such a felony conviction rather than to accept it notwithstanding the conviction.

DAB No. 2626 at 9; see also Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 17-18 (2009) (CMS or its contractor is authorized to revoke a supplier’s billing privileges based solely on its determination that the supplier was convicted of a felony that is detrimental to Medicare and its beneficiaries without expressly considering factors mentioned in the preamble to the regulations).  Here, CMS’s reconsidered determination clearly expresses that CMS exercised its authority to determine that Dr. Harris’s Medicare billing privileges should be revoked because he was convicted of a felony, as well as explaining why CMS determined that the felony is detrimental to Medicare and its beneficiaries, as authorized under 42 C.F.R. § 424.535(a)(3)(i).

In summary, CMS acted within the scope of its authority to determine that Dr. Harris was convicted of a felony detrimental to the best interests of the Medicare program and its beneficiaries.  Yet, even if CMS erred in determining to revoke Dr. Harris’s Medicare enrollment and billing privileges based on his conviction of a felony offense that is detrimental to the best interests of the Medicare program and its beneficiaries, CMS nevertheless was authorized to revoke his enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4), as described in the following section.

3. CMS had a legal basis to revoke Dr. Harris’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) because Dr. Harris did not disclose his felony conviction on his enrollment application, and thereby provided false or misleading information in the application.

CMS may revoke a currently enrolled supplier’s billing privileges in the following circumstance, among others:

The . . . supplier certified as “true” misleading or false information on the enrollment application to be enrolled . . . in the Medicare program.

42 C.F.R. § 424.535(a)(4).

CMS argues that Dr. Harris updated his Medicare enrollment on July 22, 2016, after the date of his conviction, but did not disclose the conviction in his enrollment application.  CMS Br. at 9.  CMS further argues that Dr. Harris’s certification that his enrollment application was accurate and complete was false or misleading because he omitted to disclose his felony conviction.  Id.  I agree.

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Section three of the enrollment application asked whether Dr. Harris had any final adverse legal actions.  CMS Ex. 3 at 2.  A final adverse legal action was imposed against Dr. Harris because, as explained in the previous section of this decision, he was convicted of the felony offense of possession of a controlled substance.  CMS Ex. 1 at 1.  Petitioner does not deny that Dr. Harris failed to disclose his felony conviction on his updated enrollment application.  See P. Br. at 14.  Dr. Harris signed the certification statement attesting that the contents of the application, which did not disclose any history of adverse legal actions, was in fact true, correct, and complete.  CMS Ex. 4.  Therefore, Dr. Harris certified as true, false or misleading information on his enrollment application.  The fact that Dr. Harris’s letter to NGS accompanying his signed certification statement accurately informed NGS that he “was charged [and] pled guilty” to an offense, see CMS Ex. 4 at 3, does not alter this conclusion, because even that letter asserts that he had no adverse legal actions to report.  Dr. Harris knew he had entered a guilty plea in a criminal proceeding, as he demonstrated in his letter to NGS, and thus, he certified as true misleading information.  For this reason, CMS had a legal basis to revoke Dr. Harris’s enrollment and billing privileges under 42 C.F.R. § 424.535(a)(4).

Petitioner argues that Dr. Harris believed in good faith that his guilty plea was not a conviction.  P. Br. at 14.  Petitioner’s assertion essentially amounts to an argument that Dr. Harris did not subjectively intend to mislead when he omitted the conviction on his Medicare enrollment application.  I accept as true for purposes of ruling on the motion for summary judgment that Dr. Harris believed he completed his Medicare enrollment application accurately.  However, Dr. Harris’s subjective belief was not reasonable, in light of the instructions for completing section three of the Medicare enrollment application, which explain, in part:  “All applicable final adverse actions must be reported, regardless of whether any records were expunged or any appeals are pending.”  CMS Ex. 5 at 2.  Additionally, providers and suppliers are required to “be ‘aware of, and abide[] by, all applicable statutes, regulations, and program instructions.’”  Realhab, Inc., DAB No. 2542 at 17 (2013) (citing 42 C.F.R. § 424.510(d)(3)).  Thus, Petitioner had, at a minimum, constructive notice that the definition of conviction at 42 C.F.R. § 1001.2 could include the disposition of his criminal case.

Moreover, Dr. Harris’s subjective intent in certifying his application is irrelevant.  An appellate panel of the DAB has held that “section 424.535(a)(4) does not require proof that [a supplier] subjectively intended to provide false information, only proof that [he] in fact provided misleading or false information that [he] certified as true.”  Mark Koch, D.O., DAB No. 2610 at 4 (2014) (emphasis in original).  Therefore, I conclude that Petitioner’s subjective belief that the disposition of his criminal case was not a conviction is not a basis to overturn the revocation, because he in fact provided misleading information on his application that he certified as true.

Finally, Petitioner argues that section three of the Medicare enrollment application places an undue burden on suppliers to make an assessment of what felonies CMS has

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determined to be detrimental to the program and its beneficiaries.  P. Br. at 14.  Petitioner essentially contends that because the enrollment application itself did not specify the specific convictions that must be disclosed, Dr. Harris cannot be held to have known that he was required to disclose his conviction.  Id.  Petitioner argues that further that the instructions are confusing because they fail to instruct providers and suppliers to report “any” felony conviction.  Id.  This argument fails for the same reason described above:  namely, it goes to Dr. Harris’s subjective belief that he did not provide misleading information on his enrollment application.  Because Dr. Harris’s subjective belief is irrelevant, the fact that the application instructions do not list every conviction that must be disclosed does not mean CMS lacked a legal basis to revoke Dr. Harris’s billing privileges.

V. Conclusion

For the reasons stated, I affirm CMS’s revocation of Dr. Harris’s Medicare enrollment and billing privileges.

• 1. P. Ex. 9 is Dr. Harris’s testimony, in which he refers to NGS’s email requesting information about adverse legal actions. Neither party offered the NGS email as a proposed exhibit.
• 2. My findings of fact and conclusions of law appear as headings in bold italic type.
• 3. The cases cited interpret section 1128(i)(4) of the Social Security Act. I take administrative notice that 42 C.F.R. § 1001.2(d) is based on and tracks the language of section 1128(i)(4). Therefore, the reasoning of decisions interpreting section 1128(i)(4) offers persuasive guidance in interpreting 42 C.F.R. § 1001.2(d).
• 4. Effective February 3, 2015, CMS modified 42 C.F.R. § 424.535(a)(3). 79 Fed. Reg. 72,500, 75,532 (Dec. 5, 2014). In the prior version of the regulation, the enumerated felonies regarded as per se detrimental to Medicare appeared in subsection 424.535(a)(3)(i). However, the descriptions of the enumerated felonies are unchanged. Thus, prior decisions of Departmental Appeals Board (DAB) administrative law judges and appellate panels interpreting 42 C.F.R. § 424.535(a)(3)(i)(A)-(D) are relevant in interpreting the current provision at 42 C.F.R. § 424.535(a)(3)(ii)(A)-(D). Further, the outcome in this case is the same whether I apply the original text or the amended text of that regulation.
• 5. I note additionally that administrative law judge decisions do not represent binding precedents. See, e.g., Avalon Place Trinity, DAB No. 2819 at 13 (2017); John M. Shimko, DAB No. 2689 at 5 (2016).