Duke Ahn, M.D., DAB CR6105 (2022)

DECISION

Petitioner, Duke Ahn, M.D., is a physician, licensed in California, who participated in the Medicare program until March 5, 2020, when the Centers for Medicare & Medicaid Services (CMS) revoked his Medicare privileges, citing 42 C.F.R. § 424.535(a)(12).  CMS took this action because the California State Medicaid Agency terminated Petitioner’s Medicaid participation, effective March 5, 2020, and he had no further right to review.  CMS also imposed a three-year reenrollment bar and added Petitioner’s name to the Medicare preclusion list. 

Petitioner Ahn appeals. 

I affirm CMS’s determination.  I find that CMS is authorized to revoke Petitioner Ahn’s Medicare privileges and to add his name to the Medicare preclusion list because the California Medicaid Agency terminated his Medicaid participation, and he has no further state appeal rights.

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Background

By letter dated June 18, 2020, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner Ahn that his Medicare privileges were revoked, effective July 18, 2020.  CMS Ex. 2.  As the notice letter explains, the contractor acted pursuant to 42 C.F.R. § 424.535(a)(12) because the California Medicaid program (referred to as Medi-Cal) terminated Petitioner’s Medicaid participation, and his rights to appeal that termination had been exhausted.  CMS Ex. 2 at 1.  The contractor imposed a three-year re-enrollment bar, pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 2 at 3. 

The letter also advised Petitioner that the contractor added him to the CMS preclusion list, as authorized by 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  It explained that, if Petitioner requested reconsideration, this action would become effective on the date the reconsidered determination was issued (which turned out to be October 15, 2020).  CMS Ex. 2 at 1. 

Petitioner requested reconsideration.  CMS Ex. 3.  In a reconsidered determination, dated October 15, 2020, the contractor upheld the revocation.  CMS Ex. 1.  Petitioner timely appealed and that appeal is now before me. 

Summary judgment/decision based on the written record.  Although CMS moves for summary judgment, and I agree that this case presents no dispute of a material fact, I also find that this matter may be decided based on the written record, without considering whether the standards for summary judgment have been met.1

My prehearing order instructs the parties to list any proposed witnesses and to submit their written direct testimony.  Acknowledgment and Prehearing Order at 4, 5 (¶¶ 4(c)(iv), 8) (November 18, 2020).  The order also directs the parties to indicate which, if any, of the opposing side’s witnesses the party wishes to cross-examine and explains that an in-person hearing is needed only if a party wishes to cross-examine the opposing side’s witnesses.  Id. at 5, 6 (¶¶ 9, 10).  CMS lists one witness, but Petitioner has not asked to cross-examine.  Petitioner lists three witnesses but, because he has not provided their written direct testimony, they would not be allowed to testify.  See CMS Objections at 4.  Because there are no witnesses to be examined or cross-examined, an in-person

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hearing would serve no purpose, and I may decide this case based on the written record without considering whether the standards for summary judgment are met.2

Exhibits.  With its pre-hearing brief and motion for summary judgment (CMS Br.), CMS filed 19 exhibits (CMS Exs. 1-19).  Petitioner filed a pre-hearing brief and opposition to summary judgment (P. Br.) with ten exhibits (P. Ex. 1-10).3

In the absence of any objections, I admit into evidence CMS Exs. 1-19. 

CMS objects to eight of Petitioner’s exhibits (P. Exs. 1-6, 9, and 10) because they were purportedly offered, for the first time, at this level of review, and Petitioner has not asserted, much less established, good cause for failing to submit them at the reconsideration level.  CMS also argues that P. Exs. 1 and 10 are irrelevant and that P. Exs. 2-9 duplicate documents that are already in the record. 

Duplicative documents.  I agree that the following exhibits proffered by Petitioner duplicate exhibits already proffered by CMS: 

• P. Ex. 2 is the “Accusation” issued by the Medical Board of California, dated January 16, 2020, which seeks to revoke or suspend Petitioner’s medical license.  CMS submitted this document as CMS Ex. 8.
• P. Ex. 3 is a letter, dated February 13, 2020, from the California Department of Health Care Services (state Medicaid agency), advising Petitioner that he was suspended from participating in Medi-Cal, effective March 5, 2020.  CMS submitted this document as CMS Ex. 10. 
•  P. Ex. 4 is Petitioner Ahn’s undated, two-page letter to the state Medicaid agency asking to appeal his suspension from the program.  Although CMS asserts that it submitted this document as CMS Ex. 12, in fact, it submitted this document as CMS Ex. 5.  See CMS Objections at 4.

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• P. Ex. 5 is a letter, dated April 14, 2020, from the state Medicaid agency advising Petitioner that it did not have the authority to reconsider its decision to suspend his Medi-Cal participation.  He would, however, be eligible to petition for reinstatement following a one-year waiting period.  CMS submitted this document as CMS Ex. 11. 
• P. Ex. 6 is a June 18, 2020 letter from the Medicare contractor, advising Petitioner that his Medicare privileges were revoked and that he was added to the preclusion list.  CMS submitted this document as CMS Ex. 2.
• P. Ex. 7 is minute order, dated August 20, 2020, from the Orange County Superior Court dismissing the count to which Petitioner pleaded guilty, upon his having paid restitution and fines but before he completed his period of probation.  CMS submitted this document as CMS Ex. 15. 
• P. Ex. 8 is an order, dated September 1, 2020, from the California Medical Board withdrawing the accusation against Petitioner’s medical license.  CMS submitted this document as CMS Ex. 16. 
• P. Ex. 9 is the October 15, 2020 reconsideration determination.  CMS submitted this document as CMS Ex. 1. 

Because these documents are admitted as CMS exhibits, there is no reason to admit them a second time, and I decline to do so.  I also decline to rule on any of CMS’s additional objections to the documents. 

Documents not submitted earlier.  CMS also objects to my admitting P. Exs. 1 and 10, arguing that section 498.56(e) precludes my admitting these documents because they were not submitted at the reconsideration level, and Petitioner has not offered good cause (or any explanation) for failing to submit them at the reconsideration level. 

Unless I find that good cause exists for Petitioner’s submitting the documents, for the first time, at this level of review, I must exclude the evidence.  42 C.F.R. § 498.56(e).  The contractor’s June 18, 2020 notice letter warned Petitioner:  

[I]f you have additional information that you would like a Hearing Officer to consider during reconsideration or, if necessary, an Administrative Law Judge (ALJ) to consider during a hearing, you must submit that information with your request for reconsideration.  This is your only opportunity to submit information during the administrative appeals process unless an ALJ allows additional information to be submitted.

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CMS Ex. 2 at 2 (emphasis added). 

In my pre-hearing order, I directed Petitioner to identify “specifically” new evidence and to explain why good cause exists for me to receive it.  Pre-hearing Order at 5 (¶ 6).  Petitioner does not identify either of the remaining proffered exhibits, P. Exs. 1 and 10, as new evidence.  He does not explain, much less offer good cause for, why he failed to submit them at the reconsideration level,

• P. Ex. 1 is a summary of court proceedings in Petitioner’s criminal case from February 14, 2014, through April 10, 2017.  Petitioner does not explain why he could not have obtained and submitted the document at the reconsideration level, as required by 42 C.F.R. § 498.56(e).  I therefore decline to admit P. Ex. 1. 
• P. Ex. 10 is an April 26, 2021 letter from the California Department of Health Care Services granting Petitioner’s request for reinstatement in the Medicaid program, effective April 26, 2021, but advising Petitioner that, in order to participate, he was required to reenroll.  Although Petitioner does not explain why he failed to submit this document at reconsideration, it was obviously impossible for him to have done so inasmuch as the letter was not generated until six months after the hearing officer issued her reconsidered determination.  I therefore find good cause for his failing to submit the document at the reconsideration stage. 
  
  CMS also argues that P. Ex. 10 is irrelevant because “the facts of Petitioner’s conviction and the subsequent ‘dismissal’ of that conviction are already in evidence and are not in dispute.”  CMS Objections at 2.  P. Ex. 10 is not evidence of the court’s actions; it addresses Petitioner’s eventual reinstatement into the Medicaid program.  In any event, evidence is relevant if it tends to make a fact more or less probable than it would be without the evidence.  See Fed. R. Evidence 401.  That the record includes other, similar evidence would not make the document irrelevant.  That CMS does not challenge its contents would not make it irrelevant.  

I therefore admit into evidence P. Ex. 10. 

Discussion

The Medicare Program.  The Medicare program, Title XVIII of the Social Security Act (Act), is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease.  Medicare is divided into four parts: 

• Part A is the hospital insurance program.  It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);

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• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, home health, hospice, and other services.  Act § 1832 (42 U.S.C. § 1395k);
• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health maintenance organizations, that receive a fixed payment for each enrollee.  Act § 1851 (42 U.S.C. § 1395w-21); and
• Part D is the voluntary prescription drug benefit program.  Act § 1860D (42 U.S.C. § 1395w-101). 

The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services.  CMS regulates the Medicare enrollment of providers and suppliers.  Act § 1866(j)(1)(A).  Physicians, such as Petitioner, may participate in the program as “suppliers” of services.  Act §§ 1861(d), (q), (r) (42 U.S.C. §§ 1395x(d), (q), (r)); 42 C.F.R. § 400.202. 

CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes.  Act § 1842 (42 U.S.C. § 1395u).  Contractors pay claims to “providers” (Part A) and “suppliers” (Part B). 

1. CMS properly revoked Petitioner Ahn’s Medicare enrollment under section 424.535(a)(12) because the California Medicaid agency terminated his Medicaid billing privileges, and his rights to appeal that termination have been exhausted.4

Statute and regulations.  CMS may revoke a supplier’s enrollment in the Medicare program if a state Medicaid agency has terminated the supplier’s Medicaid billing privileges, and the supplier has exhausted all applicable appeal rights.  42 C.F.R. § 424.535(a)(12)(ii).  So long as I find that these two criteria are met, I must sustain the revocation.  Douglas Bradley, M.D., DAB No. 2663 at 13 (2015), citing Letitia Bussell, M.D., DAB No. 2196 at 10 (2008). 

Termination of Petitioner’s Medicaid billing privileges.  In a 17-count complaint, filed April 3, 2017, Petitioner Ahn was charged with:  conspiracy to commit medial insurance fraud, false and fraudulent claims, rebates for patient referrals, and insurance fraud, all felonies.  CMS Ex. 6.  On April 30, 2019, he signed a change-of-plea form, admitting

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guilt to one count of receiving consideration for patient referrals (§ 650 of the Business and Professions Code), a misdemeanor.  On May 10, 2019, the court accepted his guilty plea; he was sentenced to three years criminal probation and ordered to pay $80,114 in restitution.  He also agreed not to treat patients through workers’ compensation.  CMS Ex. 8 at 4; CMS Ex. 9 at 1; P. Ex. 10 at 2. 

In a letter dated February 13, 2020, the state Medicaid agency advised Petitioner that, because his conviction was “determined to be substantially related to the qualifications, functions or duties of a provider of service,” state law required that he be suspended from the Medi-Cal program.  His current enrollment in Medi-Cal was “terminated,” effective March 5, 2020, and he was “prohibited from billing or receiving payment from the Medi-Cal program for an indefinite period of time.”  CMS Ex. 10 at 1.  Although Petitioner asked the state Medicaid agency to reconsider, by letter dated April 14, 2020, the agency denied his request.  CMS Exs. 11, 17. 

The state Medicaid agency reported to CMS that Petitioner’s Medicaid participation was terminated because of his criminal conviction.  CMS Ex. 19 at 1.5

The state Medicaid agency used the terms “suspended” and “terminated” interchangeably.  Notwithstanding the terminology used by the state, a supplier’s Medicaid participation is “terminated” if the supplier has no expectation that the state’s action is temporary and if the supplier must reenroll in the Medicaid program in order to have billing privileges reinstated.  42 C.F.R. § 455.101.  Here, the state Medicaid agency prohibited Petitioner from participating in the Medicaid program “for an indefinite period of time.”  CMS Ex. 10 at 1.  And Petitioner was not automatically re-enrolled in Medicaid after a particular period of suspension.  He was required to “petition for reinstatement.”  CMS Ex. 11; see P. Ex. 10 at 2-3 (advising Petitioner that, if he wishes to participate in the Medi-Cal program, he is required to reenroll).  Thus, the state Medicaid agency’s action meets the federal definition of termination.  See Douglas Bradley, M.D., DAB No. 2663 at 7 (observing that focusing on the nature and effect is consistent with the regulation’s purpose, which is “to coordinate the effort of federally-financed healthcare programs to protect their fiscal integrity and beneficiaries.”). 

More than a year after the termination, the Medicaid agency granted Petitioner’s request for reinstatement.  Significantly, it did not rescind its earlier termination and, like any supplier whose participation has been terminated, Petitioner is required to reenroll in order to participate in the program.  The Medicaid agency’s actions thus do not negate Petitioner’s termination from the Medicaid program, upon which this revocation is based.  Because Petitioner’s Medicaid participation was terminated by the state Medicaid agency

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for cause, and he had no further state appeal rights, CMS was authorized to revoke his Medicare billing privileges under 42 C.F.R. § 424.535(a)(12). 

Petitioner’s defense:  no conviction.  Petitioner asserts that CMS’s actions – revocation and placing him on the preclusion list – are “based solely on the alleged criminal conviction and exhaustion of the appeal process.”  He points out that the California criminal court ultimately dismissed the case “without final judgment and without any adverse record.”  P. Br. at 4.  According to Petitioner, under state law, he was not convicted. 

In an order, dated August 20, 2020, the state court confirmed that Petitioner had paid restitution in the amount of $80,114 and had paid an additional $8,000 to the Victim Witness Emergency fund.  The court acknowledged that Petitioner had completed 15 months of probation, rather than the three years ordered.  It nevertheless dismissed Petitioner’s conviction pursuant to section 1385 of the California penal code.  CMS Ex. 15.  Under state law, the effect of a dismissal under section 1385 “is to wipe the slate clean as if the defendant never suffered the prior conviction in the initial instance.”  People v. Chavez, 5 Cal. App. 5th 110, 117 (Cal. Ct. App. 2016). 

The revocation of Petitioner’s Medicare enrollment is related to his criminal conviction – but only indirectly (conviction →Medicaid termination →Medicare revocation).  In any event, state law does not determine whether Petitioner was convicted under section 424.535(a)(3); federal law does.  Section 424.535(a)(3) adopts the Inspector General’s definition of “convicted” found at 42 C.F.R. § 1001.2.  Under section 1001.2, a person is “convicted” when:  1) “a judgment of conviction has been entered” regardless of whether that judgment has been (or could be) expunged; 2) there has been a finding of guilt; 3) a plea of guilty or nolo contendere has been accepted by the court; or 4) the individual has entered into participation in a first offender, deferred adjudication, or other arrangement or program where the judgment of conviction has been withheld.  See Act § 1128(i). 

I recognize that the state court “dismissed” Petitioner’s conviction.  However, it did so only after confirming that Petitioner had paid the ordered restitution and fines.  Had the slate truly have been “wiped clean,” Petitioner presumably would not have been subject to any part of the court’s sentence. 

Moreover, in a similar context, the Departmental Appeals Board has characterized as “well established” the principle that a “conviction” includes “diverted, deferred and expunged convictions regardless of whether state law treats such actions as a conviction.”  Henry L. Gupton, DAB No. 2058 at 8 (2007), aff’d sub nom. Gupton v. Leavitt, 575 F.  Supp. 2d 874 (E.D. Tenn. 2008).  For sound reasons, Congress deliberately defined “conviction” broadly to assure that Medicare exclusions would not hinge on state criminal justice policies.  Funmilola Mary Taiwo, DAB No. 2995 at 6 (2020); Gupton at 7-8.

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The rationale for the different meanings of “conviction” for state criminal law versus federal exclusion law purposes follows from the distinct goals involved.  The goals of criminal law generally involve punishment and rehabilitation of the offender, possibly deterrence of future misconduct by the same or other persons, and various public policy goals.  [footnote omitted].  Exclusions imposed by the [Inspector General], by contrast, are civil sanctions, designed to protect the beneficiaries of health care programs and the federal fisc, and are thus remedial in nature rather than primarily punitive or deterrent . . .  In the effort to protect both beneficiaries and funds, Congress could logically conclude that it was better to exclude providers whose involvement in the criminal system raised serious concerns about their integrity and trustworthiness, even if they were not subjected to criminal sanctions for reasons of state policy.  

Gupton at 7-8.  This rationale applies to Medicare revocations as well as exclusions.  A revocation is also “designed to protect the beneficiaries of health care programs and the federal fisc.”  Id. at 7. 

Petitioner’s defense:  appeal rights not exhausted.  Petitioner characterizes the state Medicaid agency’s determination to deny him a formal hearing as “a mystery” and argues that the state appeals process “is still pending and has not been exhausted.”  P. Br. at 5.  This is not so.  Petitioner was not allowed to appeal his Medi-Cal termination because, under state law, he had no further appeal rights. 

Pursuant to the California Welfare and Institutions Code, the Medicaid agency must suspend a Medi-Cal provider who has been convicted of a misdemeanor involving fraud, abuse of the Medi-Cal program or any patient, or otherwise substantially related to the qualifications, functions, or duties of a provider of service.  WIC § 14123(a)(1).  The suspension is automatic; providers suspended based on a conviction are not entitled to appeal.  WIC § 14123(a)(3); see WIC 14123(c).  Petitioner’s appeal rights had therefore been exhausted. 

2. CMS acted within its authority when it added Petitioner to its preclusion list because Petitioner’s Medicare enrollment has been revoked under section 424.535(a)(12), he is currently under a reenrollment bar, and CMS reasonably determined that the conduct that led to his revocation is detrimental to the best interests of the Medicare program.

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The preclusion list.  Effective January 1, 2019, CMS implemented a “preclusion list” as part of its effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees,” particularly with respect to prescription drug abuse.6   Pursuant to 42 C.F.R. § 422.2 (Part C) and 42 C.F.R. § 423.100 (Part D), CMS’s “preclusion list” includes individuals whose Medicare enrollment has been revoked (for reasons other than that stated in section 424.535(a)(3)),7 are currently under a reenrollment bar, and CMS has determined that the conduct underlying their revocations are detrimental to the best interests of the Medicare program.  In determining whether conduct is detrimental, CMS considers:  the seriousness of the conduct underlying the revocation, the degree to which that conduct could affect the integrity of the Medicare program, and any other evidence that CMS deems relevant to its determination.

As discussed above, Petitioner’s Medicare enrollment has been revoked, and he is under a reenrollment bar.  I have no authority to review the length of the enrollment bar.  Breton L. Morgan, M.D., Inc., DAB No. 2933 at 6 (2019); Mohammad Nawaz, M.D., and Mohammad Zaim, M.D., PA, DAB No. 2687 at 15-16 (2016); Vijendra Dave, M.D., DAB No. 2672 at 11 (2016).

Petitioner maintains that he should not have been placed on the preclusion list because the criminal court dismissed his conviction.  As discussed above, notwithstanding the court’s actions, Petitioner was convicted within the meaning of 42 C.F.R. § 1001.2, which governs here.  He admitted that he received compensation for referring patients, violating section 650 of the Business and Professions Code, which prohibits a licensed individual from receiving unearned rebates, refunds, and discounts.

The practice of receiving compensation in return for referrals has long been considered a threat to the integrity of health care programs, justifying – even mandating – exclusions from program participation and denial or revocation of Medicare enrollment.  See, e.g., Aiman M. Hamdan, DAB No. 2955 (2019) (where Petitioner accepted bribes in return for referring patient blood specimens to a laboratory for testing); Kimbrell Colburn, DAB No. 2683 (2016) (where Petitioner knew, but did not report, that her employer was

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receiving kickbacks for referring patients to a company for bone growth stimulators); Farzana Begum, M.D., DAB No. 2726 (2016) (where Petitioner conspired to solicit and receive kickbacks for referring patients to a home health agency); Eugene Goldman, M.D. a/k/a Yevgeniy Goldman, M.D., DAB No. 2635 (2015) (where Petitioner received kickbacks for Medicare referrals); Dinesh Patel, M.D., DAB No. 2551 (2013) (where Petitioner received cash payments for each Medicare or Medicaid beneficiary he referred for an MRI of CAT scan). 

There is no question that Petitioner’s criminal conduct caused his victims losses of $80,114, the amount the court ordered him to pay in restitution.  Restitution has long been considered a reasonable measure of financial losses.  See Edwin L. Fuentes, DAB No. 2988 at 13 (2020); Hussein Awada, M.D., DAB No. 2788 at 7 (2017); Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Jason Hollady, M.D., a/k/a Jason Lynn Hollady, DAB No. 1855 (2002); United States v. Naphaeng, 906 F.3d 173, 179 (1st Cir. 2018) (holding that a defendant convicted of crimes involving fraud or deceit must make restitution commensurate with the victims’ actual losses).  CMS thus justifiably determined that the actions underlying Petitioner’s conviction undermine the integrity of health care programs and are therefore detrimental to the best interests of the Medicare program.  

CMS has thus established a basis for placing Petitioner on the preclusion list, and I must therefore uphold its doing so.  See Wendell Foo, M.D., DAB No. 2904 at 3 (2018); Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018), citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016). 

Conclusion

CMS may revoke Petitioner Ahn’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(12) because the California Medicaid Agency terminated his Medicaid participation, and he exhausted his appeal rights.  CMS may add him to the preclusion list because his enrollment was revoked, he is under a reenrollment bar, and CMS reasonably determined that the conduct underlying his revocation is detrimental to the Medicare program.

I therefore affirm CMS’s determinations.

1. Petitioner characterizes as a fact in dispute whether his letter asking to appeal the state Medicaid agency’s determination to suspend him from participating in the Medi-Cal program is a request to appeal.  This is puzzling.  The letter is obviously a request to appeal.  That the agency advised him that he had no appeal rights does not change that.  Whether the agency was correct is not a question of fact but an issue of law.  See discussion below.  In any event, I have no authority to review the state agency’s determination.
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2. That I decide this case based on the written record does not mean that Petitioner has not had a hearing.  Courts recognize that, although a case may be decided on summary judgment or based on the written record, the administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).
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3. The record is somewhat confusing because, on April 27, 2021, Petitioner submitted exhibits, marked P. Exs. 1 and 2 (Efile # 11a and # 11b) with his motion for an extension.  These are not proffered as evidence.  I rule on the exhibits submitted with Petitioner’s brief on May 27, 2021 (Efile ## 16, 17, 19, 19a-19g).
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4. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
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5. Based on his conviction, the California Medical Board filed an accusation asking that his medical license be suspended.  CMS Ex. 8.  However, it subsequently withdrew the accusation.  CMS Ex. 16.
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6. Apparently, CMS considered requiring Medicare enrollment for all providers and suppliers of Medicare Advantage services and prescribers of Part D drugs but, ultimately, opted for a preclusion list instead.  CMS concluded that the burden of requiring Medicare enrollment for hundreds of thousands of additional providers, suppliers, and prescribers would be too great and would threaten beneficiary access to prescriptions and services.  See 82 Fed. Reg. at 56442, 56448 (November 28, 2017); 83 Fed. Reg. 16646 (April 16, 2018).
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7. Section 424.535(a)(3) authorizes revocation based on certain felony convictions.  Those whose enrollments are revoked under section 424.535(a)(3) may also be added to the preclusion list pursuant to different subsections of 42 C.F.R. §§ 422.2 and 423.100.
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