Jason Bitkowski, D.O., DAB CR5114 (2018)

DECISION

The Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor, Wisconsin Physicians Service Insurance Corporation (WPS), denied Jason Bitkowski, D.O.’s (Petitioner’s or Dr. Bitkowski’s) application for Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.530(a)(3) and § 424.530(a)(4).  Petitioner challenges the denial.  For the reasons discussed below, I affirm CMS’s denial of Petitioner’s enrollment application.

I.  Background

Petitioner is a doctor of osteopathy residing in Michigan.  See, e.g., CMS Exhibit (Ex.) 2 at 1.  On December 3, 2013, he pled guilty to Operating While Intoxicated/Per Se-3^rd Offense Felony, in violation of Michigan Vehicle Code § 257.6256D (hereafter referred to as “operating while intoxicated”), in the State of Michigan Sixth Judicial Circuit, County of Oakland.  CMS Ex. 1.  Thereafter, the State of Michigan Department of Licensing and Regulatory Affairs, Bureau of Health Care Services, Board of Osteopathic Medicine and Surgery Discipline Subcommittee (Board of Osteopathic Medicine) sent Petitioner an administrative complaint in response to Petitioner’s December 3, 2013 conviction.  CMS Ex. 2.  The administrative complaint charged, among other things, that

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Petitioner’s conviction “evidences a conduct, practice, or condition which impairs, or may impair, the ability to safely and skillfully practice the health profession.”  Id. at 3.  The administrative complaint summarily suspended Petitioner’s medical license pending a hearing.  Id. at 3-4.  Petitioner and the Board of Osteopathic Medicine ultimately agreed to a Consent Order under which Petitioner’s medical license was suspended until he enrolled in a monitoring agreement through the Health Professional Recovery Program, and Petitioner was required to pay a fine.  CMS Ex. 3 at 2, 8.

By letter dated October 8, 2014, WPS notified Petitioner that it was revoking his Medicare enrollment and billing privileges effective April 27, 2014, under 42 C.F.R. § 424.535(a)(1) (non-compliance with enrollment requirements) and 42 C.F.R. § 424.535(a)(9) (failure to report).  CMS Ex. 4 at 1.  WPS also imposed a three‑year re‑enrollment bar.  Id. at 2.  Petitioner did not contest the 2014 revocation of his enrollment and billing privileges.

On April 27, 2017, at the expiration of the re-enrollment bar, Petitioner again applied to enroll in Medicare as a supplier.  Petitioner signed an enrollment application, Form CMS‑855I, along with a Form CMS-855R (Reassignment of Medicare Benefits Enrollment Application).  CMS Ex. 5 at 35; CMS Ex. 6 at 4.  In Section 1 of the CMS-855I enrollment application, Petitioner did not check the box to indicate that he had “Final Adverse Actions/Convictions” to report.  CMS Ex. 5 at 5.  In Section 3 of the application, Petitioner marked the box “Yes” in response to the question “Have you, under any current or former name or business identity, ever had a final adverse legal action listed on page 12 of this application imposed against you?”  Id. at 14.  In Section 3, Question 2, the form provides a table into which applicants are to report “each final adverse legal action, when it occurred, the Federal or State agency . . . that imposed the action, and the resolution, if any.”  Id.  Petitioner wrote inside the first box of the table, “Michigan Medical Licence [sic] Suspension Medicare Debarment,” with a date of April 27, 2014.  Id.  Petitioner did not mention his felony conviction for operating while intoxicated.  Id.

In an initial determination dated August 2, 2017, CMS contractor WPS notified Petitioner that his Medicare enrollment application was denied.  CMS Ex. 7.  WPS cited two bases for denial:  (1) 42 C.F.R. § 424.530(a)(3)-Felony Conviction because of Petitioner’s December 3, 2013 felony conviction for operating while intoxicated; and (2) 42 C.F.R. § 424.530(a)(4)-False or Misleading Information on Application because Petitioner failed to report on his re-enrollment application that he was adjudged guilty of a felony in 2013.  Id. at 1.  The initial determination invited Petitioner to submit a Corrective Action Plan (CAP).  Id.  The initial determination also informed Petitioner that he may request “reconsideration before a contractor hearing officer.”  Id.  Petitioner submitted an appeal letter that proposed a CAP but did not explicitly request reconsideration.  CMS Ex. 8.  On August 31, 2017, a CMS representative sent Petitioner an email advising him “[w]e are in receipt of your appeal.  Please be advised that CMS has 60 days to review your appeal

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and render our decision . . . .” and “[y]ou have only submitted a [CAP].  Please be advised that if you do not submit a reconsideration request within 60 days of the initial determination letter informing you of the denial o[f] your enrollment, you will waive your rights to further administrative review.”  CMS Ex. 9.

By letter dated October 19, 2017, a hearing officer in CMS’s Provider Enrollment and Oversight Group1 informed Petitioner that CMS found WPS correctly denied his enrollment application:

CMS finds that WPS properly denied Dr. Bitkowski’s application for Medicare billing privileges under 42 C.F.R. § 424.530(a)(3) and (4). CMS finds that Dr. Bitkowski’s CAP did not correct the deficiencies which gave rise to the denial of his Medicare enrollment.  Furthermore, Dr. Bitkowski was required to disclose his guilty plea in his CMS-855I Medicare enrollment application, but failed to do so.  His failure to disclose his guilty plea was a proper reason for WPS to deny his application pursuant to 42 C.F.R. § 424.530(a)(4).  WPS also properly denied Dr. Bitkowski’s application due to his conviction of one felony count of Operating While Intoxicated/Per Se - 3rd Offense Felony under 42 C.F.R. § 424.530(a)(3), an offense that CMS has determined to be detrimental to the program and the beneficiaries.

CMS Ex. 10 at 4.  CMS’s October 19 letter stated that it was responding to Petitioner’s CAP.  Id. at 1.  The letter further informed Petitioner that he had the right to request review by an administrative law judge if he “believe[s] this determination is not correct.”  Id. at 5.

Petitioner, through counsel, timely requested a hearing before an administrative law judge, and the case was assigned to me.  Pursuant to my Acknowledgment and Pre‑Hearing Order (Pre‑Hearing Order), CMS filed its Motion to Dismiss, or in the Alternative, Motion for Summary Judgment and Prehearing Brief (CMS Br.) and ten proposed exhibits (CMS Exs. 1‑10).  Petitioner filed his response brief (P. Br.) and four proposed exhibits (P. Exs. 1‑4).  Petitioner did not object to CMS’s proposed exhibits.  CMS objected (CMS Obj.) to all Petitioner’s proposed exhibits.

There being no objection from Petitioner, I admit CMS Exs. 1‑10 into the record.  CMS objected to P. Exs. 1-4.  CMS Obj. at 1-4.  CMS argues that Petitioner’s proposed exhibits represent new evidence that was not previously presented to CMS or its contractor.  Pursuant to 42 C.F.R. § 498.56(e), an administrative law judge must examine “any new documentary evidence submitted to the [administrative law judge] by a provider or supplier to determine whether the provider or supplier has good cause for

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submitting the evidence for the first time at the [administrative law judge] level.”  If the administrative law judge does not find good cause for the failure to submit the evidence earlier, the evidence must be excluded and may not be considered in reaching a decision.  42 C.F.R. § 498.56(e)(2)(ii).  Petitioner’s brief did not identify the evidence as new, nor did he argue that he had good cause to submit the evidence for the first time before me, although my Pre-Hearing Order instructed Petitioner to do so.  Pre-Hearing Order ¶ 6.  Nor did Petitioner file a response to CMS’s objections.  Thus, Petitioner has not disputed that his evidence is new, nor has he made any showing of good cause for submitting the evidence untimely.  Absent any showing of good cause, I am required to exclude P. Exs. 1-4.  42 C.F.R. § 498.56(e)(2)(ii).  Accordingly, I sustain CMS’s objections and exclude P. Exs. 1-4, from the record.

My Pre‑hearing Order advised the parties that they must submit written direct testimony for any proposed witness and that an in-person hearing would only be necessary if the opposing party requested an opportunity to cross-examine a witness.  Pre‑hearing Order ¶¶ 8-10; Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b); Pacific 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 offered the written direct testimony of any witness.  Consequently, an in-person hearing is not required, and I issue this decision based on the written record, without regard to whether the standards for summary judgment are met.  Pre‑hearing Order ¶¶ 8-11; CRDP § 19(d).  In the following section, I explain why I deny CMS’s motion to dismiss and instead issue a decision on the merits of this case.

II.  CMS’s Motion to Dismiss

CMS moved to dismiss Petitioner’s hearing request, arguing that:

[T]his Tribunal should dismiss this appeal pursuant to 42 C.F.R. § 498.70(b) and not consider the merits of his challenge because he never sought a reconsideration determination and only submitted a CAP. [Petitioner] is entitled to a hearing before an ALJ only after seeking reconsideration and receiving a reconsideration determination. 42 C.F.R. § 498.5(l)(2). He has not done so here making WPS’s initial determination final and binding. 42 C.F.R. § 498.20(b).

CMS Br. at 2.

A supplier who is “dissatisfied with a reconsidered determination . . . is entitled to a hearing before an [administrative law judge].”  42 C.F.R. § 498.5(l)(2).  On the other hand, an initial determination is “binding” unless it is first reconsidered.  42 C.F.R. § 498.20(b)(1).  Therefore, if a supplier does not request and receive a reconsidered

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determination, then that supplier does not have a right to hearing before an administrative law judge.  Denise Hardy, DAB No. 2464 at 4-5 (2012); Hiva Vakil, DAB No. 2460 at 4-5 (2012).

I acknowledge that Petitioner did not, in so many words, request reconsideration of WPS’s initial determination denying his enrollment application.  Nevertheless, it has always been clear that the relief Petitioner sought was for WPS or CMS to reverse the determination denying Petitioner’s application to enroll in Medicare.  Moreover, I find that, under the circumstances presented here, CMS in fact issued a reconsidered determination affirming that WPS properly denied Petitioner’s Medicare enrollment application.  I reach this conclusion because doing so gives effect to the substance of CMS’s actions here.  In contrast, dismissing Petitioner’s hearing request would elevate form over substance and deprive Petitioner of the right to a hearing.

In the August 2, 2017 initial determination, WPS stated that Petitioner “may submit a corrective action plan (CAP) within 30 days.”2   CMS Ex. 7 at 1.  The initial determination also informed Petitioner of his right to request reconsideration.  Id.  Petitioner submitted an appeal letter, dated August 18, 2017, which he described as a “Corrective Action Plan”; he did not submit a document explicitly described as a request for reconsideration.  CMS Ex. 8.  On August 31, 2017, a representative of CMS’s Division of Compliance and Appeals sent Petitioner an email advising him “[w]e are in receipt of your appeal.  Please be advised that CMS has 60 days to review your appeal and render our decision . . .” and “[y]ou have only submitted a [CAP].  Please be advised that if you do not submit a reconsideration request within 60 days of the initial determination letter informing you of the denial o[f] your enrollment, you will waive your rights to

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further administrative review.”  CMS Ex. 9.  Petitioner did not file anything further in response to the email.

Petitioner’s August 18, 2017 appeal letter and CMS’s October 19, 2017 decision letter contain elements typical of a request for reconsideration and a reconsidered determination.  CMS Exs. 8, 10.  Petitioner’s appeal letter explained both that he wished to rectify his failure to report an adverse action and that he did not believe his conviction was the type that should bar his enrollment.  CMS Ex. 8. CMS’s decision letter finds both that Petitioner’s CAP did not cure his failure to report an adverse action and that his conviction was for an offense that is detrimental to Medicare and its beneficiaries.  CMS Ex. 10 at 3-4.  Significantly, CMS’s October 19 letter states, “This decision is an UNFAVORABLE DECISION” and informs Petitioner of his right to request review by an administrative law judge if he is dissatisfied with the decision.3   Id. at 5 (emphasis in original).  Administrative law judge review is not available for a CAP denial (see 42 C.F.R. § 405.809(b)(2)), but is available following a reconsidered determination.  I therefore conclude that CMS’s October 19, 2017 decision letter was a reconsidered determination.

III.  Issue

The issue in this case is whether CMS had a legal basis to deny Petitioner’s enrollment application.

IV.  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).

V.  Discussion

A. Statutory and Regulatory Framework

As a physician, Petitioner is a supplier of health care services for purposes of the Medicare program.  See Act § 1861(d) (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, an individual must meet certain criteria to enroll and receive billing privileges.  42 C.F.R §§ 424.505, 424.510.  CMS may deny a supplier’s enrollment for any reason stated in 42 C.F.R § 424.530.

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CMS is authorized to deny a supplier’s application for Medicare enrollment and billing privileges if the supplier has been convicted of a felony offense, as described in 42 C.F.R § 424.530(a)(3):

(3)  Felonies.  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.
(i)  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.
(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.
(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that results in a conviction of criminal neglect or misconduct.
(D) Any felonies that would result in mandatory exclusion under section 1128(a) of the Act.
(ii)  Denials based on felony convictions are for a period to be determined by the Secretary, but not less than 10 years from the date of conviction if the individual has been convicted on one previous occasion for one or more offenses.

Additionally, 42 C.F.R. § 424.530(a)(4) authorizes CMS to deny a supplier’s Medicare enrollment application if the supplier provides false or misleading information in the application:

(4)  False or misleading information.  The provider or supplier has submitted false or misleading information on the enrollment application to gain enrollment in the Medicare program.  (Offenders may be referred to the Office of Inspector General for investigation and possible criminal, civil, or administrative sanctions.)

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

1. CMS had a legal basis to deny Petitioner’s Medicare enrollment application pursuant to 42 C.F.R. § 424.530(a)(3) because, within the ten years prior to his application, Petitioner was convicted of a felony offense that CMS has determined to be detrimental to the best interests of the Medicare program and its beneficiaries.4

a. Petitioner was convicted of a felony offense.

Section 424.530(a)(3) defines a conviction for which enrollment may be denied by cross‑referencing the definition at 42 C.F.R. § 1001.2.  In turn, section 1001.2 provides:

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
(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.

Petitioner does not dispute that on December 3, 2013, he pled guilty to operating while intoxicated, a felony based on Petitioner’s two previous convictions.  CMS Ex. 1 at 1.  The court accepted the plea and found him guilty.  Id.  Accordingly, Petitioner was convicted of a felony offense.

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

In its October 19, 2017 reconsidered determination, CMS, through its Provider Enrollment Oversight Group, concluded that Petitioner’s felony conviction was detrimental to the Medicare program and its beneficiaries under 42 C.F.R. § 424.530(a)(3).  CMS Ex. 10.  CMS concluded that Petitioner demonstrated a “pattern of

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making decisions that are dangerous, unlawful, and pose a risk to others” and that “[a]llowing a provider into the Medicare program with this repeated pattern of behavior is detrimental to the best interests of the Medicare program and its beneficiaries.”  Id. at 3.

CMS may deny a supplier’s application to enroll 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. § 424.530(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 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 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”).  Offenses for which CMS may deny enrollment 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 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. § 424.530(a)(3)(ii)(A)-(D).

In promulgating 42 C.F.R. § 424.530(a)(3), CMS determined that the enumerated crimes are detrimental per se to Medicare.5   See Letantia Bussell, M.D., DAB No. 2196 at 9 (2008).  However, even if a conviction is for a crime not enumerated in 42 C.F.R. § 424.530(a)(3), 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 denial.  See, e.g., Saeed A. Bajwa, M.D., DAB No. 2799 at 5 n.4, 10-12 (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).6

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In this case, it is apparent that CMS exercised its discretion, pursuant to 42 C.F.R. § 424.530(a)(3)(i), to determine that a felony conviction not listed in 42 C.F.R. § 424.530(a)(3)(ii) is detrimental to the Medicare program and its beneficiaries and, accordingly, warrants revocation.  See Bajwa, DAB No. 2799 at 8, 10-11.  If I am satisfied that CMS exercised its discretion under 42 C.F.R. § 424.530(a)(3)(i), 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). The record before me amply demonstrates that CMS exercised its discretion.  CMS itself issued the reconsidered determination in which it expressly found that Dr. Bitkowski’s conviction is detrimental to the Medicare program and its beneficiaries because the conviction calls into question whether Dr. Bitkowski can be trusted to exercise good judgment and not put others at risk.  CMS Ex. 10 at 3.

Because CMS exercised its discretion to determine that Petitioner’s conviction was one that is detrimental to Medicare and its beneficiaries, I may not second-guess that determination.  Accordingly, even if I accept Petitioner’s arguments that he is rehabilitated and unlikely to offend again or to put Medicare beneficiaries at risk, this is not a basis to reverse CMS’s judgment that Petitioner’s conviction is detrimental to Medicare.

Petitioner argues that CMS’s denial of his enrollment is unreasonable because his conviction posed no danger to Medicare and its beneficiaries.  P. Br. at 6-8.  Petitioner states that:

Petitioner’s arrest and conviction for Operating While Intoxicated, 3rd Offense did not involve any injuries, to Petitioner or other, or an accident. There was nothing unusual or significant about Petitioner’s arrest or conviction that would indicate Petitioner’s actions were worthy of an adverse determination by CMS.

P. Br. at 7.  Petitioner also claims that he was a model probationer, that he was released early from probation, and that he entered and complied with a state health professional recovery program, leading to the reinstatement of his medical license.  Id.

I accept Petitioner’s representations that he has devoted significant effort to achieving recovery and regaining approval to practice medicine without supervision.  However, even if I might infer from Petitioner’s rehabilitation that his felony conviction was not detrimental to Medicare or its beneficiaries, were I reviewing Petitioner’s enrollment application in the first instance, that is not my role here.  Rather, for the reasons explained above, I must acknowledge that CMS lawfully exercised its discretion to determine that Petitioner’s conviction was detrimental to Medicare and must affirm that

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CMS had a legitimate basis to deny Petitioner’s enrollment application for that reason.  Moreover, to the extent Petitioner is arguing that denying his Medicare enrollment application is inequitable under the circumstances, I am not authorized to reverse the denial based on equitable considerations.  See US Ultrasound, DAB No. 2302 at 8 (2010).

Finally, even if I were to find that CMS was not authorized to deny Petitioner’s enrollment application based on 42 C.F.R. § 424.530(a)(3), I would nevertheless conclude that CMS had a basis to deny the application based on 42 C.F.R. § 424.530(a)(4).

2. CMS had a legal basis to deny Petitioner’s Medicare enrollment application pursuant to 42 C.F.R. § 424.530(a)(4) because Petitioner did not disclose his felony conviction on his enrollment application, and thereby provided false or misleading information in the application.

Having concluded that CMS had a legal basis to deny Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(3) based on his felony conviction for operating while intoxicated, it is not necessary to decide whether there is also a basis to deny Petitioner’s enrollment application under section 42 C.F.R. § 424.530(a)(4) for making false or misleading statements.  See, e.g., Daniel Wiltz & Family Healthcare Clinic, APMC, DAB No. 2864 at 12 (2018) (if one basis for sanction is established, CMS’s action would be sustained “regardless of any additional bases”).  However, while not required to do so, in this section, I explain why I conclude that there is a basis to deny Petitioner’s enrollment application pursuant to 42 C.F.R. § 424.530(a)(4).

As discussed above, Petitioner does not dispute that he was convicted of operating while intoxicated.  Further, the Board of Osteopathic Medicine suspended Petitioner’s medical license based on his conviction.  CMS Exs. 2, 3.  In completing his application to re-enroll in Medicare, Petitioner disclosed that his license had been suspended and that his Medicare enrollment had been revoked.  CMS Ex. 5 at 14.  However, Petitioner did not disclose his felony conviction for operating while intoxicated.  Id.

Petitioner does not dispute that he failed to disclose his conviction.  However, Petitioner argues that he did not know that he was required to do so because he could not have known in advance that CMS would determine that the conviction was detrimental to Medicare, and therefore must be reported.  P. Br. at 9.  Petitioner argues it “is unreasonable to have expected Petitioner to anticipate CMS’s discretion to determine his conviction was detrimental to the best interests of the Medicare program and its beneficiaries under 42 C.F.R. § 424.5[30](a)(3).”  Id.  In essence, Petitioner’s argument is that he did not intend to submit false or misleading information.  However, Petitioner’s intent is not relevant to CMS’s authority to deny enrollment under 42 C.F.R.

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§ 424.530(a)(4).  See Mark Koch, D.O., DAB No. 2610 at 4 (2014) (the issue is not whether petitioner subjectively intended to provide false information, but whether he in fact provided false information).  Further, even if Petitioner’s intent were relevant, I am not convinced that Petitioner could not have anticipated the need to report his conviction.  At the time Petitioner submitted his enrollment application, his December 3, 2013 conviction had already led to the suspension of his medical license.  CMS Exs. 2, 3.  The Board of Osteopathic Medicine instituted disciplinary proceedings against Petitioner based on the Board’s concern that Petitioner’s conviction evidenced “a conduct, practice, or condition which impairs or may impair the ability to safely and skillfully practice the health profession.”  CMS Ex. 2 at 3.  Given that the Board of Osteopathic Medicine viewed Petitioner’s conviction as bearing on his ability to practice medicine safely, it would not be unreasonable for Petitioner to at least consider the possibility that CMS might take a similar view.  Therefore, Petitioner’s arguments are not a basis to conclude that denial of his enrollment application pursuant to 42 C.F.R. § 424.530(a)(4) was improper.

VI.  Conclusion

For the reasons stated, I affirm that CMS had a legal basis to deny Petitioner’s Medicare enrollment application.

1. The Provider Enrollment and Oversight Group is a component of CMS itself, not an administrative contractor.
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2. I am baffled that CMS apparently accepts CAPs regarding enrollment denials based on 42 C.F.R. § 424.530(a)(3), when it does not accept CAPs for revocations based on 42 C.F.R. § 424.535(a)(3). See, e.g., Medicare Program Integrity Manual, CMS Pub. 100 08 (MPIM) § 15.25.1.1.A(4) (“Consistent with § 405.809, CAPs for revocations based on grounds other than § 424.535(a)(1) shall not be accepted” (underscore added)). This is puzzling because sections 424.530(a)(3) and 424.535(a)(3) both address the effect of felony convictions on Medicare enrollment; their texts are nearly identical. As CMS itself has observed, “[I]f a provider is revoked based on an OIG [Office of Inspector General] exclusion or felony conviction, no amount of corrective action would be able to change this.” Proposed Rule, Medicare Program; Requirements for the Medicare Incentive Reward Program and Provider Enrollment, 78 Fed. Reg. 25,013, 25,025 (April 29, 2013). This statement is equally true whether enrollment denial or revocation is at issue. Thus, submitting a CAP to address an enrollment denial based on a felony conviction would seem to be an empty exercise, and one in which the CMS contractor invited Petitioner to engage.
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3. CMS’s decision letter suggests that it may be both a CAP denial and a reconsidered determination. CMS Ex. 10 at 5 (“you may request a final [administrative law judge] review for the reconsideration portion of this decision letter”).
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4. My findings of fact and conclusions of law appear as headings in bold italic type.
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5. Effective February 3, 2015, CMS modified 42 C.F.R. § 424.530(a)(3). 79 Fed. Reg. 72,500, 72,531 (Dec. 5, 2014). In the prior version of the regulation, the enumerated felonies regarded as per se detrimental to Medicare appeared in subsection 424.530(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. § 424.530(a)(3)(i)(A)-(D) are relevant in interpreting the current provision at 42 C.F.R. § 424.530(a)(3)(ii)(A)-(D).
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6. The appellate panel noted in Bajwa that CMS made parallel amendments to section 424.535(a)(3) and to section 424.530(a)(3). DAB No. 2799 at 5 n.4. I therefore presume that decisions interpreting section 424.535(a)(3) may also provide guidance in interpreting section 424.530(a)(3).
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