David Crawford, M.D., DAB CR5595 (2020)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, revoked the Medicare enrollment and billing privileges of David Crawford, M.D. (Dr. Crawford or Petitioner) based on Dr. Crawford’s felony conviction for vehicular assault.  Petitioner requested a hearing before an administrative law judge (ALJ) to dispute the revocation.  For the reasons stated below, I affirm CMS’s determination.

I. Background and Procedural History

Dr. Crawford is an orthopedic surgeon in Ohio who was enrolled as a supplier in the Medicare program.  CMS Exhibit (Ex.) 5 at 1; CMS Ex. 10 at 2.

In a May 29, 2019 initial determination, a CMS contractor revoked Dr. Crawford’s Medicare enrollment and billing privileges, effective January 10, 2019, for the following reasons:

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42 CFR § 424.535(a)(3) – Felonies

[CMS] has been made aware of your January 10, 2019, felony conviction, as defined in 42 C.F.R. § 1001.2, for Vehicular Assault in violation of Section 2903.08(A)(2)(b) of the Ohio Revised Code in the Court of Common Pleas for Delaware County, Ohio.

42 CFR § 424.535(a)(9) – Failure to Report

[CMS] has been made aware of your January 10, 2019, felony conviction, as defined in 42 C.F.R. § 1001.2, for Vehicular Assault in violation of Section 2903.08(A)(2)(b) of the Ohio Revised Code in the Court of Common Pleas for Delaware County, Ohio.  You did not notify CMS of this adverse legal action as required under 42 CFR § 424.516.

CMS Ex. 9 at 1 (emphasis in original).  The CMS contractor barred Dr. Crawford from re-enrolling in the Medicare program for three years, effective 30 days from the date of the initial determination.  CMS Ex. 9 at 2. 

On June 27, 2019, Dr. Crawford filed a timely request for reconsideration.  CMS Ex. 10.  Dr. Crawford conceded his 2019 felony conviction for vehicular assault.  However, he argued that there was no basis for revocation pursuant to 42 C.F.R. § 424.535(a)(3) because his crime was not the type of felony that is specifically listed among the crimes that CMS has determined to be detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 10 at 5.  Dr. Crawford argued that the language of 42 C.F.R. § 424.535(a)(3) provided no notice that his crime of vehicular assault would result in “automatic termination of his Medicare privileges.”  CMS Ex. 10 at 6.  Dr. Crawford contended further that CMS was required to consider the facts and circumstances surrounding his conviction, but had not done so.  CMS Ex. 10 at 5-6.  Lastly, Dr. Crawford argued that there was no basis for revocation pursuant to 42 C.F.R. § 424.535(a)(9) because he had timely notified CMS of his felony conviction for vehicular assault within 30 days of the conviction.  CMS Ex. 10 at 6-7.

In an August 28, 2019 reconsidered determination, a CMS hearing officer upheld the revocation.  CMS Ex. 13.  The CMS hearing officer concluded that Dr. Crawford’s felony conviction for vehicular assault was per se detrimental to the Medicare program and its beneficiaries under 42 C.F.R. § 424.535(a)(3), stating, among other things:  

CMS determines that Dr. Crawford’s felony conviction falls within its authority to revoke a supplier’s Medicare billing

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privileges under § 424.535(a)(3)(ii)(A), as it is considered to be a crime against a person that is per se detrimental to the best interests of the Medicare program and its beneficiaries.

CMS Ex. 13 at 5 (emphasis in original).  The CMS hearing officer noted further that “CMS finds that Dr. Crawford’s felony conviction is detrimental to the Medicare program based on the facts and circumstances surrounding his felony conviction.”  CMS Ex. 13 at 5.  The CMS hearing officer, however, overturned the initial determination’s conclusion that 42 C.F.R. § 424.535(a)(9) served as a basis for revocation, finding that Petitioner had timely reported his felony conviction to CMS within 30 days of its occurrence, as required under 42 C.F.R. § 424.516(d)(1)(ii).  CMS Ex. 13 at 6.

Dr. Crawford timely requested an ALJ hearing to dispute the reconsidered determination (Request for Hearing).  On November 6, 2019, the Civil Remedies Division (CRD) acknowledged the hearing request and issued my standing prehearing order (Order).  In accordance with the Order, CMS filed its prehearing exchange, which included a motion for summary judgment and brief, and 13 exhibits (CMS Exs. 1-13).  Petitioner submitted a response (P. Br.) without exhibits.

II.  Decision on the Record

Petitioner did not object to any of CMS’s proposed exhibits; therefore, I admit CMS Exs. 1-13 into the record.  Order ¶ 10; CRD Procedures § 14(e).

My Order advised the parties that they must submit written direct testimony for all of their proposed witnesses and that I would only hold a hearing if a party requested to cross-examine a witness from whom written direct testimony was submitted.  Order ¶¶  7d., 11-12; CRD Procedures §§ 16(b), 19(b); Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross-examine those witnesses).  Neither party has offered any written direct testimony.  Therefore, I have no need to hold an in-person hearing in this matter, and I issue this decision based on the written record.  Order ¶¶ 11-13; CRDP § 19(d).

III.  Issue

Whether CMS had a legitimate basis to revoke Dr. Crawford’s Medicare enrollment and billing privileges based on 42 C.F.R. § 424.535(a)(3).

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IV.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 424.545(a), 498.1(g).

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

My findings of fact and conclusions of law are set forth in italics and bold font.

The Social Security Act authorizes the Secretary of Health and Human Services (Secretary) to create regulations governing the enrollment of suppliers in the Medicare program and to discontinue the enrollment of a physician or other supplier who “has been convicted of a felony under Federal or State law for an offense which the Secretary determines is detrimental to the best interests of the [Medicare] program or program beneficiaries.”  42 U.S.C. §§ 1395u(h)(8), 1395cc(j).

Under the Secretary’s regulations, CMS may revoke a supplier’s Medicare enrollment and billing privileges if the “supplier was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.535(a)(3)(i).  Further, the Secretary provided in the regulations a non-exhaustive list of the types of felony offenses that CMS will treat as per se detrimental to the best interests of the program and its beneficiaries.  42 C.F.R. § 424.535(a)(3)(ii); 71 Fed. Reg. 20,754, 20,768 (Apr. 21, 2006); Letantia Bussell, M.D.,DAB No. 2196 at 9 (2008).  That list includes “[f]elony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.”  42 C.F.R. § 424.535(a)(3)(ii)(A).  

1.  On January 10, 2019, Petitioner pleaded guilty to three felony counts of Vehicular Assault in the fourth degree under Ohio state law, and the Court of Common Pleas of Delaware County, Ohio (Court of Common Pleas), accepted Petitioner’s guilty plea.  On March 20, 2019, the Court of Common Pleas sentenced Petitioner to probation, not to exceed two and one-half years, and suspended his driver’s license for four years.

The following facts are undisputed.  On or about June 1, 2018, Petitioner attended a golf tournament and while there, consumed alcohol.  CMS Ex. 4 at 1-2; CMS Ex. 10 at 2.  After the tournament, Petitioner drove a group of friends in his vehicle while intoxicated and, while doing so, drove off the road and struck a tree, causing serious injury to everyone in Petitioner’s vehicle.  CMS Ex. 1; CMS Ex. 4 at 1-2; CMS Ex. 5 at 1-2; CMS Ex. 10 at 2; see also CMS Ex. 10 at 27-32.

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On January 10, 2019, in the Court of Common Pleas, Dr. Crawford entered a guilty plea to three felony counts of Vehicular Assault in the fourth degree, as set forth in the Bill of Information, in violation of Ohio Rev. Code Ann. § 2903.08(A)(2)(b).  CMS Exs. 2, 3, 7; see CMS Ex. 10 at 3, 20-26.  Dr. Crawford also entered a guilty plea to a related misdemeanor count of Operating a Vehicle Under the Influence of Alcohol, in violation of Ohio Rev. Code Ann. § 4511.19(A).  CMS Ex. 5 at 1; CMS Ex. 10 at 3.  The Court of Common Pleas accepted Dr. Crawford’s guilty plea on January 10, 2019.  CMS Ex. 2 at 6; CMS Ex. 10 at 25.  On March 20, 2019, the Ohio court sentenced Dr. Crawford to community control sanctions (probation) not to exceed two and one-half years, and suspended his driver’s license for four years.  CMS Ex. 7 at 5.

On February 13, 2019, Petitioner entered into a Consent Agreement with the State Medical Board of Ohio (Ohio Board).  CMS Ex. 5.  The Consent Agreement was based on Dr. Crawford’s admissions that he pleaded guilty to the aforementioned felony counts of vehicular assault and the related misdemeanor charge.  The Consent Agreement noted further that Dr. Crawford admitted that his criminal charges arose from an accident on or about June 1, 2018, which occurred when, after consuming alcohol at a golf tournament, he hit a tree with his car after leaving, resulting in his three passengers suffering serious injuries.  Under the terms of the Consent Agreement, Dr. Crawford agreed, among other conditions, to a suspension of his medical license for 180 days and payment of a monetary fine of $20,000.  CMS Ex. 5 at 1-3.

2.  There is a legitimate basis for CMS to revoke Petitioner’s Medicare enrollment and billing privileges based on Petitioner’s felony conviction for vehicular assault, which is a felony that is detrimental per se to the best interests of the Medicare program and its beneficiaries under 42 C.F.R. § 424.535(a)(3).

CMS may revoke a supplier’s Medicare billing privileges if the supplier is:  (1) convicted of a federal or state felony offense within the last ten years; and (2) the felony offense is one that CMS has determined to be detrimental to the best interests of the Medicare program and its beneficiaries.  42 C.F.R. § 424.535(a)(3).

In the present case, the record establishes that, for revocation purposes, Petitioner was convicted of a felony on January 10, 2019, because he pleaded guilty to three felony counts, and, on January 10, 2019, the Ohio court accepted the plea.  The Court of Common Pleas sentenced Petitioner on March 20, 2019.  CMS Ex. 2, CMS Ex. 7 at 5; 42 C.F.R. §§ 424.535(a)(3)(i), 1001.2 (definition of Convicted).  The CMS contractor issued the initial determination revoking Petitioner based on the criminal conviction on May 29, 2019; therefore, the revocation occurred less than ten years after the conviction.  CMS Ex. 9.

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Petitioner contends that his conviction was not for an offense detrimental to the best interests of the Medicare program and its beneficiaries.  Request for Hearing; P. Br.  Petitioner argues that his conviction “is simply not an enumerated offense under 42 C.F.R.  424.530(a)(3) or even within the scope or severity of such listed offenses.”  P. Br. at 4.  Petitioner’s arguments are without merit.

The regulation at 42 C.F.R. § 424.535(a)(3) provides:

(3) Felonies. (i) The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.

(ii) Offenses include, but are not limited in scope or severity to—

(A) Felony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions. 

Petitioner was convicted of felony vehicular assault.  The regulation at 42 C.F.R. § 424.535(a)(3)(ii)(A) expressly deems a felony conviction for assault as per se detrimental to the best interests of the Medicare program and its beneficiaries.  See Bussell, DAB No. 2196 at 9.  As part of a lengthy discussion in the reconsidered determination, the CMS hearing officer explained as follows:

Section 2903.08(A)(2)(b) of the [Ohio Code] defines vehicular assault to be the serious physical harming to another  person while operating a motor vehicle in a reckless manner.  Although Dr. Crawford claims that vehicular assault is not specifically mentioned in 42 C.F.R. § 424.535(a)(3), CMS finds that the felony offense of vehicular assault to be one in the same as the felony offense of assault that is mentioned as a per se crime against a person because the crime of assault is specifically mentioned in the regulation and, Dr. Crawford physically harmed three people while driving in a reckless manner.  As a result, CMS determines that Dr. Crawford’s felony conviction falls within its authority to revoke a supplier’s Medicare billing privileges under

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§ 424.535(a)(3)(ii)(A), as it is considered to be a crime against a person that is per se detrimental to the best interests of the Medicare program and its beneficiaries.

CMS Ex. 13 at 5.  Additionally, the hearing officer specifically considered the facts and circumstances surrounding Petitioner’s felony conviction, and concluded that Petitioner’s conduct of operating and crashing a vehicle while under the influence of alcohol, with injuries suffered by three people, “demonstrates a reckless disregard for the safety of those around him and calls into question his ability to exercise good judgment.  As a result, CMS considers Dr. Crawford’s actions, which led to his felony conviction, to be detrimental to the best interests of the Medicare program and its beneficiaries.”  CMS Ex. 13 at 5.

I agree with the hearing officer’s assessment.  There is no doubt that Petitioner’s felony offense was per se detrimental under 42 C.F.R. § 424.535(a)(3)(ii)(A), and I am precluded from further inquiry on this issue.  As explained by the Departmental Appeals Board:

The ALJ’s review of CMS’s revocation . . . is thus limited to whether CMS had established a legal basis for its actions . . . .  In other words, the right to review of CMS’s determination by an ALJ serves to determine whether CMS had the authority to revoke . . . Medicare billing privileges, not to substitute the ALJ’s discretion about whether to revoke . . . . Once the ALJ found that both elements required for revocation were present . . . , the ALJ was obliged to uphold the revocation . . . .

Bussell, DAB No. 2196 at 13 (citations omitted) (emphasis in original).  Accordingly, I conclude that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3).

3.  I do not have the authority to review the length of the re-enrollment bar.

Whenever CMS has properly imposed revocation on a supplier, CMS must also determine how long the supplier will be barred from seeking re-enrollment as a supplier.  The regulations at 42 C.F.R. § 424.535(c)(1) provide that “[t]he re-enrollment bar begins 30 days after CMS or its contractor mails notice of the revocation and lasts a minimum of 1 year, but not greater than 3 years, depending on the severity of the basis for revocation.”

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In this case, the CMS contractor imposed a three-year re-enrollment bar on Petitioner.  CMS Ex. 9 at 2.  Petitioner asserts that the three-year re-enrollment bar is excessive and that CMS abused its discretion in imposing it.  Request for Hearing; P. Br. at 2.  Petitioner contends that he admitted his actions, completed the terms of his Consent Agreement with the Ohio Board, and has had his Ohio medical license reinstated.  P. Br. at 2.  Petitioner also claims that he is an asset to the Medicare program and seeks a hearing “to protect his due process rights.”  Request for Hearing; P. Br. at 1.

I am unable to consider Petitioner’s arguments.  The length of the re-enrollment bar CMS imposes is not a determination subject to review by an ALJ.  Vijendra Dave, M.D., DAB No. 2672 at 9 (2016) (“our authority in a revocation case does not extend to reviewing the length of the reenrollment bar imposed by CMS.”).  

Petitioner’s due process argument is also without merit.  Due process is afforded when a party has adequate notice and a reasonable opportunity to respond at the hearing level.  See Green Hills Enterprises., LLC, DAB No. 2199 at 9 (2008); Louis J. Gaefke, D.P.M., DAB No. 2554 at 10-11 (2013).  Petitioner in this case received timely notice of CMS’s revocation determination and has been given the opportunity to present evidence and respond to CMS’s allegations at both the reconsideration level of review and in this adjudication before me.  Therefore, I do not find that Petitioner’s due process rights were infringed upon in any way.

Finally, to the extent that any of Petitioner’s arguments may be construed to be a request for equitable relief, I have no authority to provide him with any form of equitable relief.  See US Ultrasound, DAB No. 2302 at 8 (2010).  I am also required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

4.  CMS properly set the effective date for revocation as January 10, 2019, because Petitioner was convicted on that date.

The regulation at 42 C.F.R. § 424.535(g) states that when a revocation is based on a felony conviction, the revocation of the supplier’s billing privileges is effective as of the date of the felony conviction.  As stated above, Petitioner’s guilty plea, entered on January 10, 2019, is considered a conviction under the regulations.  CMS thus properly set the effective date for revocation as January 10, 2019. 

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VI.  Conclusion

I affirm CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges.