David R. Gooldy, D.C., DAB CR5322 (2019)

DECISION

Petitioner, David R. Gooldy, D.C., is a chiropractor, practicing in South Carolina, who participated in the Medicare program until April 12, 2016, when the Centers for Medicare and Medicaid Services (CMS) revoked his billing privileges, retroactive to August 24, 2015. CMS took this action pursuant to 42 C.F.R. § 424.535(a)(3), because, on December 10, 2007, Petitioner Gooldy was convicted of felony insurance fraud.

Petitioner appeals.

I find that CMS is authorized to revoke Petitioner's Medicare billing privileges because, within ten years preceding the revocation, 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 April 12, 2016, the Medicare contractor, Palmetto GBA, advised Petitioner that his Medicare privileges were revoked, effective August 24, 2015, the date of his re-enrollment in the Medicare program. As the letter explains, the contractor acted

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pursuant to 42 C.F.R. § 424.535(a)(3) because Petitioner was convicted of a felony – presenting false claims (to Blue Cross and Blue Shield of South Carolina) for payment. The contractor imposed a three-year enrollment bar, pursuant to 42 C.F.R. § 424.535(c). CMS Ex. 2.

Petitioner requested reconsideration. In a reconsidered determination, dated July 15, 2016, a contractor enrollment analyst upheld the revocation, citing Petitioner's felony conviction within the ten years preceding his enrollment. CMS Ex. 4. Petitioner timely appealed and that appeal is now before me.

CMS moves for summary judgment. However, 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 submits its brief (CMS Br.) and four exhibits (CMS Exs. 1-4). Petitioner submits a written argument (P. Br.). In the absence of any objections, I admit into evidence CMS Exs. 1-4.

Discussion

CMS may revoke Petitioner's Medicare enrollment because, within the preceding ten years, he was convicted of insurance fraud, a felony that CMS reasonably finds detrimental to the best interests of the Medicare program and its beneficiaries.1

Statute and regulations. CMS may revoke a provider's or supplier's Medicare billing privileges if, within the preceding ten years, he was convicted of a "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); see also Social Security Act (Act) §§ 1842 (h)(8) and 1866(b)(2)(D). Offenses for which billing privileges may be terminated include – but are not limited to – financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and similar crimes. 42 C.F.R. § 424.535(a)(3)(ii)(B).

If, as here, the revocation is based on a felony conviction, the effective date of the revocation must normally be the date of the conviction. 42 C.F.R. § 424.535(g); Norman Johnson, M.D., DAB No. 2779 at 20 (2017) (holding that ALJs are not permitted to depart from the regulation's plain text). However, inasmuch as Petitioner was apparently

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not participating in the Medicare program at the time of his conviction, the effective date is the date he re-enrolled.

Petitioner's felony offense. The record offers few details regarding the circumstances underlying Petitioner's felony conviction. On December 10, 2007, he pled guilty to presenting false claims to Blue Cross and Blue Shield of South Carolina, an insurance company. CMS Ex. 1. He was sentenced to three years in prison (suspended) and ordered to pay $8,000 in restitution. CMS Ex. 1 at 3. Thus, within ten years of his Medicare enrollment, he was convicted of felony insurance fraud, a crime that is, by regulation, detrimental to the best interests of the Medicare program and its beneficiaries. 42 C.F.R. § 424.535(a)(3)(ii)(B). CMS may therefore revoke his Medicare enrollment and billing privileges, effective the date of that enrollment.

Petitioner, however, points out that the Inspector General excluded him from Medicare participation, and that CMS reinstated his enrollment and billing privileges on August 24, 2015. At the time, CMS was well aware of his felony conviction. Based on that approval, he provided services to Medicare patients. Because it approved his re-enrollment, CMS should not now be allowed to revoke; or, if allowed, the revocation should be no earlier than April 27, 2016, the date CMS notified him that his billing privileges were revoked.2

Like several of my colleagues, I am troubled by the contractors' propensity for enrolling suppliers who disclose serious felony convictions, only to revoke those enrollments years later. See, e.g., Ian J. Griffith, PT, DAB CR4817 at 14 n.9 (2017); Donna Maneice, M.D., DAB CR4804 at 15 (2017). However, my authority here is limited. So long as the regulatory elements are satisfied – as they are here – I must affirm the revocation, and I may not alter the effective date based on principles of equity. Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016).

Thus, CMS justifiably determined that, within ten years preceding his re-enrollment, Petitioner was convicted of a felony detrimental to the best interests of the Medicare program and its beneficiaries. CMS may therefore revoke his Medicare enrollment. The duration of the re-enrollment bar is not subject to review. Dennis McGinty, PT, DAB No. 2838 at 14 (2017).

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Conclusion

CMS may revoke Petitioner's Medicare enrollment because, within ten years preceding his enrollment, he was convicted of a felony that, by regulation, CMS 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.
• 2. Though Petitioner claims CMS notified him on April 27, 2016, that his billing privileges were revoked, CMS in fact notified him on April 12, 2016. CMS Ex. 2.