Alexander Rozenberg, M.D., DAB CR5139 (2018)

DECISION

Petitioner, Alexander Rozenberg, M.D., is a New York physician who participated in the Medicare program until March 8, 2010, when CMS revoked his enrollment and imposed a three-year bar on reenrollment.  CMS took this action because, on February 20, 2009, Petitioner Rozenberg was convicted of falsifying business records, a felony.  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 is authorized to deny Petitioner Rozenberg’s reenrollment application because, within the ten years preceding his filing, he was convicted of a felony that CMS reasonably determined is detrimental to the best interests of the Medicare program and its beneficiaries.  I therefore affirm CMS’s determination.

Background

By letter dated November 6, 2017, the Medicare contractor, National Government Services, denied Petitioner Rozenberg’s application for reenrollment in the Medicare program.  CMS Exhibit (Ex.) 6.  As the letter explains, the contractor acted pursuant to

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42 C.F.R. § 424.530(a)(3) 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 January 22, 2018, a CMS hearing officer upheld the denial, citing Petitioner’s felony conviction for falsifying business records in the first degree.  P. Ex. 1; see CMS Ex. 1.  Petitioner timely appealed and that appeal is now before me.

CMS moves for summary judgment, which Petitioner opposes.  Because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 5 (¶¶ 8, 9, 10).  The matter may therefore be decided based on the written record, without considering whether the standards for summary judgment are satisfied.

CMS has submitted its brief (CMS Br.) and seven exhibits (CMS Exs. 1-7).  Petitioner submits his brief and four exhibits (P. Exs. 1-4).  In the absence of any objections, I admit into evidence CMS Exs. 1-7 and P. Exs. 1-4.

Discussion

CMS may deny Petitioner enrollment in the Medicare program because, within the last ten years, he was convicted of falsifying business records, a felony that CMS reasonably finds detrimental to the best interests of the Medicare program and its beneficiaries.1

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 he ascertains that the provider has been convicted of a felony that he “determines is detrimental to the best interests of the program or program beneficiaries”).

Offenses for which billing privileges may be denied 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; a felony that places the Medicare program or its beneficiaries at immediate risk (such as malpractice); and felonies “outlined in section 1128 of the Act.”  42 C.F.R.

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424.530(a)(3).  Section 1128 crimes include:  program-related crimes; crimes related to the neglect or abuse of patients in connection with the delivery of a healthcare item or service; crimes relating to health care fraud; and crimes relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  See 42 C.F.R. § 1001.101.

Petitioner’s felony offense.  Petitioner Rozenberg was charged in New York state court with multiple counts of insurance fraud, falsifying business records, grand larceny, and other crimes.  CMS Ex. 1.  He was ultimately convicted on one misdemeanor count of insurance fraud and one felony count of falsifying business records.  CMS Ex. 1 at 4.  Specifically, in billing a health insurance company, he falsely claimed that he had provided a higher level of medical service (“consultation”) than he actually provided (“initial evaluation”).  He was sentenced to 15 days confinement, five years’ probation, and 300 hours of community service.  CMS Ex. 4 at 2.

Based on his felony conviction:

• CMS revoked his Medicare billing privileges, effective March 8, 2010, and imposed a three-year bar on reenrollment.  CMS Ex. 2.

• The Inspector General for the Department of Health and Human Services (IG) excluded him from participating in all federal health care programs for a minimum period of five years.  See CMS Ex. 3.

• In a determination and order dated December 17, 2010, the New York State Board for Medicine revoked his medical license.  CMS Ex. 4 at 3-4.   

Petitioner’s reenrollment application.  In an application filed on August 21, 2017, Petitioner applied for reenrollment in the Medicare program.  CMS Ex. 5.

Petitioner maintains that his Medicare enrollment should be allowed.  First, he points to the Inspector General’s June 2, 2010 notice letter, which proposed his exclusion under section 1128(a) of the Social Security Act (Act), and, citing section 1128(c)(3)(B) of the Act, advised him that the minimum period of exclusion is five years.  P. Br. at 1-2; see CMS Ex. 3.  Petitioner suggests that section 1128(c)(3)(B) precludes CMS from denying his reenrollment because more than five years have passed since he was excluded.  His period of exclusion “expired” on June 3, 2015, so, he maintains, CMS must now allow him to reenroll.  P. Br. at 2.

But exclusion under section 1128 and denial of enrollment under 42 C.F.R. § 424.530 (as authorized by sections 1842(h)(8) and 1866(b)(2)(D) of the Act) are separate and distinct enforcement tools, each with its own requirements and consequences.  See Fady Fayad, M.D., DAB No. 2266 at 12 (2009), citing Abdul Razzaque Ahmed, M.D., DAB No. 2261

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at 13 (2009).  That the IG may have imposed a minimum period of exclusion does not preclude CMS from making its own, independent determination regarding a supplier’s reenrollment.  Indeed, the statute and regulations mandate that it do so.

Petitioner characterizes his crime as a minor billing error that cost the Medicare program only $25.18.  Putting aside the fact that innocent billing errors do not, as a general rule, result in felony convictions, I am not authorized to review the validity of that conviction.  A denial of enrollment under section 424.530(a)(3) derives from the supplier’s (or provider’s) felony conviction.  Section 424.530(a)(3) does not authorize me to review the underlying conviction.  See Douglas Bradley, M.D., DAB No. 2663 at 15-16 (2015).

Petitioner also challenges CMS’s claim that I lack the authority to review its determination that an offense is detrimental to the best interests of the program or program beneficiaries.  P. Br. at 2.  In fact, my review authority is limited.  I may determine whether the regulatory elements required for denial of enrollment under section 424.530(a) are present, and, if the record establishes that they are, I must affirm. See Bradley, DAB No. 2663 at 6-7, 13-14 and cases cited therein.

Moreover, in this case, I need not even consider whether I have the authority to review CMS’s exercise of its discretion to deny enrollment; by regulation Petitioner’s felony offense is detrimental to the best interests of the program and its beneficiaries.  Not only was his a “financial crime,” similar to insurance fraud, it was a felony that subjected him to exclusion under section 1128(a).  Because Petitioner’s conviction was among those specifically enumerated in section 424.530(a), CMS may deny his Medicare enrollment without regard to equitable or other factors.   See Fayad, DAB No. 2266 at 15-17.

Thus, CMS justifiably determined that Petitioner was convicted of a felony detrimental to the best interests of the Medicare program and its beneficiaries and may deny his enrollment in the Medicare program.

Conclusion

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

• 1. I make this one finding of fact/conclusion of law to support my decision.