Amira Mantoura, DPM, DAB CR6117 (2022)

DECISION

This decision affirms the decision of the Centers for Medicare & Medicaid Services (CMS) to deny Petitioner Amira Mantoura, DPM’s (Petitioner or Dr. Mantoura) Medicare enrollment application and place her on the CMS preclusion list.

I.     Background and Procedural History

On January 19, 2022, Dr. Mantoura timely requested a hearing before an administrative law judge (ALJ) to contest the denial of her Medicare enrollment application and placement on the CMS preclusion list.  Petitioner included several documents with her request for hearing.  On January 19, 2022, the Civil Remedies Division (CRD) issued an acknowledgment letter and my standing prehearing order (Standing Order), along with a non-discrimination notice and the CRD Procedures (CRDP). 

On February 23, 2022, CMS filed a motion for summary judgment (CMS Br.), along with two exhibits (CMS Exs. 1-2).  On April 6, 2022, an order to show cause was issued

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directing Petitioner to file a response to CMS’s motion for summary judgment and the order to show cause. 

Petitioner submitted a response (P. Br.) on April 7, 2022.  Petitioner contacted CRD with several questions about the hearing process.  As a result, a prehearing conference was held on April 28, 2022.  At the prehearing conference, Dr. Mantoura appeared pro se.  Attorney Robert Berlet appeared on behalf of CMS.  Both parties indicated that a hearing was not necessary to resolve this matter. 

After the prehearing conference, Petitioner submitted an additional document regarding this case.  CMS did not object to the document.  For the purpose of this matter, the document filed after the prehearing conference will be considered an extension of Petitioner’s brief. 

II.    Admission of Exhibits and Decision on the Record

Petitioner did not object to any of CMS’s exhibits.  Therefore, CMS Exhibits 1 and 2 are admitted into evidence. 

Petitioner filed several documents with the request for hearing.  Those documents were subsequently labeled Petitioner’s Exhibits 1 through 7.¹  CMS did not object to any of Petitioner’s exhibits.  Therefore, Petitioner’s Exhibits 1-7 are admitted into evidence. 

Neither party identified witnesses to testify, and both parties agreed that a hearing was not necessary to resolve this matter.  Consequently, an in-person hearing is not necessary, and this matter will be decided based on the written record.  CRDP § 19(d).  CMS’s motion for summary judgment is denied as moot.

III.    Issues

• Whether CMS has a legitimate basis to deny Petitioner’s Medicare enrollment application seeking billing privileges under 42 C.F.R. § 424.530(a)(3); and
• Whether CMS has a legal basis to place Petitioner on its preclusion list, as defined at 42 C.F.R. §§ 422.2 and 423.100.

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IV.    Jurisdiction

This tribunal has jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2). 

V.     Legal Authorities

As a doctor of podiatric medicine, Petitioner is a supplier of health care services for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.20(b)(3).  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 application for Medicare billing privileges for any reason stated in 42 C.F.R. § 424.530.  This includes the existence of a felony conviction:

(a)  Reasons for denial.  CMS may deny a . . . supplier’s enrollment in the Medicare program for the following reasons:

* * * *

(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 [C.F.R. §] 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

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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. 

42 C.F.R. § 424.530(a)(3). 

CMS may place on the preclusion list any “individual or entity, regardless of whether they are or were enrolled in Medicare, [that] has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.”  42 C.F.R. §§ 422.2, 423.100; see 84 Fed. Reg. 15,680, 15,828, 15,840 (Apr. 16, 2019) (definitions of “preclusion list” effective January 1, 2020).  Medicare Advantage organizations and Medicare Part D plan sponsors may not provide reimbursement for any items or services furnished by an individual or entity on CMS’s preclusion list or for prescriptions the individuals write.  42 C.F.R. §§ 422.2, 422.222, 422.224, 423.100, and 423.120(c)(6).  In determining whether a felony conviction is detrimental to the best interests of the Medicare program, CMS considers: 

1. The severity of the offense;
2. When the offense occurred; and
3. Any other information that CMS deems relevant to its determination.

42 C.F.R. §§ 422.2, 423.100; see 84 Fed. Reg. at 15,828, 15,840. 

CMS also considers the aforementioned factors to determine whether a shorter length of preclusion is warranted for an individual placed on the preclusion list based on a felony conviction.  An individual will remain on the preclusion list for a 10-year period, unless CMS determines that a shorter length of time is warranted.  42 C.F.R. § 422.222; 84 Fed. Reg. at 15,832, 15,840-41.

A felony offense specifically identified in the regulations governing enrollment denial is considered detrimental per se, or as a matter of law, to the best interests of the Medicare program and its beneficiaries.  42 C.F.R. § 424.530(a)(3)(i); Letantia Bussell, M.D., DAB No. 2196 at 9 (2008).  An ALJ does not have discretion to disregard findings that CMS has made via rulemaking.  Bussell, DAB No. 2196 at 13 n.13 (“Once the Secretary . . . has exercised that authority by regulation as to a class of felonies, an ALJ cannot revisit

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that determination in an individual case where the conviction of an offense in the class is undisputed.”).

A felony offense not specifically listed in the regulations, but which is similar to such an offense, can also provide the basis for denial of enrollment; in that case, an ALJ must look to the circumstances surrounding the conviction to assess similarity.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 11 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010) (affirming the ALJ’s consideration of facts and circumstances underlying the offense of conviction to assess its similarity to one of the financial crimes identified as per se detrimental). 

Finally, even if a felony offense is not specifically listed or similar to those listed in the regulations, CMS may determine, on a case-by-case basis, that a felony conviction is detrimental to the best interests of the Medicare program and program beneficiaries. 
Brenda Lee Jackson, DAB No. 2903 at 8 (2018); Fady Fayad, M.D., DAB No. 2266 at 16-17 (2009), aff’d, Fayad v. Sebelius, 803 F. Supp. 2d 699, 704 (E.D. Mich. 2011).  In that instance, it must be determined whether CMS’s determination that a felony offense is detrimental to the best interests of the program and its beneficiaries is reasonable.  Fayad, DAB No. 2266 at 16-17 (providing that CMS could reasonably infer from the nature and circumstances of the petitioner’s felony offense that his crime was detrimental to Medicare, and he posed a threat to the Medicare program).  

VI. Findings of Fact

On October 5, 2015, as part of a plea agreement, Petitioner pleaded guilty to one count of Making a False Statement Relating to a Health Care Fraud Matter in the United States District Court, District of Connecticut (District Court).  CMS Ex. 2 at 30-39.  As part of the plea agreement, Petitioner stipulated that: 

From January 1, 2009, to in or about August 15, 2013, [Petitioner] knowingly submitted materially false claims to the Medicare program and to private insurance companies to obtain payment for a nail avulsion when [Petitioner] knew that she had not performed a nail avulsion.  Rather than perform a nail avulsion, in most of these instances [Petitioner] had merely provided her patients with routine foot care including clipping the patients’ toenails.  

CMS Ex. 2 at 38.  Petitioner was paid approximately $195,000 as a result of submitting false claims to Medicare, Medicaid, and private insurance companies.  CMS Ex. 2 at 38.  The District Court sentenced Petitioner to three years of probation, 200 hours of community service, over $60,000 in restitution, and $266,000 in fines.  CMS Ex. 1 at 16.

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Due to the felony conviction, the Inspector General (IG) for the United States Department of Health and Human Services excluded Petitioner from participating in Medicare, Medicaid, and all federal health care programs for five years.  CMS Ex. 1 at 3; seeCMS Ex. 2 at 26.²  Additionally, the State of Connecticut Department of Public Health imposed a reprimand and one-year of probation on Dr. Mantoura’s license to practice as a podiatrist.  CMS Ex. 2 at 12.³ 

Petitioner submitted a CMS-855I Medicare application for enrollment on August 4, 2021.  CMS Ex. 1 at 19.  On the application, Petitioner disclosed her felony conviction from October 5, 2015, in addition to the exclusion imposed by the IG.  CMS Ex. 1 at 22.  On September 8, 2021, National Government Services (NGS), a Medicare administrative contractor, notified Petitioner that her request for enrollment was denied and she was being placed on the CMS preclusion list.  CMS Ex. 1 at 9.  NGS noted that Petitioner’s enrollment denial, and preclusion list placement were due to her conviction, within the preceding 10 years, of a felony offense that CMS determined was detrimental to the best interests of the Medicare program and its beneficiaries.  CMS Ex. 1 at 9. 

Dr. Mantoura submitted a request for a reconsidered determination on November 4, 2022.  On January 18, 2022, a hearing officer with CMS’s Provider Enrollment & Oversight Group issued an unfavorable reconsidered determination, upholding “the denial of [Petitioner’s] Medicare enrollment” and concluding that “there was no error made in [Petitioner’s] inclusion on the CMS Preclusion List.”  CMS Ex. 1 at 1, 5.  The hearing officer found that Petitioner’s felony conviction in the preceding 10 years was per se detrimental to the Medicare program based on the facts and circumstances of the conviction and because it resulted in mandatory exclusion by the IG.  CMS Ex. 1 at 3.  CMS noted that Dr. Mantoura’s actions were extremely detrimental to the Medicare program and its beneficiaries because she “misused and abused her authority as a healthcare provider to submit false claims . . . .”  CMS Ex. 1 at 3.

Since the felony conviction, Dr. Mantoura has completed over 200 hours of community service.  She has spent time volunteering with the Boy Scouts, the Red Cross, and other community organizations.  P. Exs. 3, 5, 7.  Dr. Mantoura has also completed training on self-reporting with the Department of Justice – Fraud Task Force.  P. Ex. 6.  Additionally, Dr. Mantoura states that she has adopted a Medicare Compliance program in her office,

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which includes audits by an independent certified professional coder.  P. Br.; CMS Ex. 1 at 8.

VII.  Analysis and Conclusions of Law⁴

1.  Petitioner was convicted of a felony offense within 10 years preceding her application for enrollment.

On October 5, 2015, Petitioner pleaded guilty to one count of Making a False Statement Relating to a Health Care Fraud Matter in violation of 18 U.S.C. § 1035(a)(2).  CMS Exs. 1 at 15, 2 at 30.  Petitioner applied for enrollment as a Medicare supplier on August 4, 2021, almost six years after the date of her felony conviction.  CMS Ex. 1 at 19-27.  Therefore, Petitioner’s October 5, 2015 felony conviction occurred within the 10 years preceding her August 4, 2021 request for enrollment.  An application for enrollment may be denied if the applicant has a felony conviction within 10 years preceding the enrollment application.  42 C.F.R. § 424.530(a)(3). 

2.  Petitioner’s felony conviction was per se detrimental to the best interests of the Medicare program and its beneficiaries because it resulted in mandatory exclusion under section 1128(a) of the Act.

The Secretary of the Department of Health & Human Services has the authority to determine which offenses are detrimental to Medicare and its beneficiaries.  42 U.S.C. § 1395u(h).  The regulations identify felonies that are per se detrimental – making them, as the Board has observed, “detrimental to Medicare and its beneficiaries as a matter of law – that is, without regard to the circumstances underlying a particular supplier’s conviction . . . .”  John Hartman, D.O., DAB No. 2564 at 4 (2014).  Felony offenses deemed to be per se detrimental include “[a]ny felonies that would result in mandatory exclusion under section 1128(a) of the Act.”  42 C.F.R. § 424.530(a)(3)(i)(D).  Section 1128(a)(1) of the Act mandates that “[t]he Secretary shall exclude [an individual] from participation in any Federal health care program” if the individual “has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.”  Act § 1128(a)(1).  Here, the evidence shows that Petitioner was excluded by the IG under section 1128(a) of the Act because of her felony conviction for a criminal offense “related to the delivery of an item or service under title XVIII . . . .”  SeeCMS Ex. 1 at 4. 

Specifically, in October 2015, Petitioner was convicted of a felony that involved billing Medicare for nail avulsions that were not actually provided to patients.  In many instances, Petitioner performed routine care such as clipping toenails, instead of the avulsion procedure that she billed for.  As a result of her actions, Petitioner was

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sentenced to probation, 200 hours of community service, fines, and restitution.  CMS Ex. 1 at 15-18.  CMS determined that:

Dr. Mantoura misused and abused her authority as a healthcare provider to submit false claims, stating she performed a procedure which she did not.  Dr. Mantoura’s actions were dishonest and showed that Dr. Mantoura lacks integrity and disregards following rules and regulations.

CMS Ex. 1 at 3-4.  The evidence shows that Petitioner’s conviction involved dishonesty and defrauding the Medicare program.  Therefore, I find that CMS acted within its authority in determining that Petitioner’s felony conviction was per se detrimental to the best interests of the Medicare program. 

It is evident that Petitioner’s criminal acts were related to the delivery of an item or service under a federal or state healthcare program.  In addition, Petitioner’s conviction subjected her to mandatory exclusion by the IG under section 1128(a)(3) of the Act.  CMS acted within its authority in determining that Petitioner’s felony conviction was per se detrimental to the best interests of the Medicare program and its beneficiaries.  Therefore, CMS had a legal basis to deny Petitioner’s enrollment application.

3.  CMS had a legal basis to add Petitioner to the CMS Preclusion List, effective January 18, 2022, the date of the reconsidered determination.

Petitioner does not contest the facts or circumstances regarding her criminal conviction, but voices concern with being added to the preclusion list.  Petitioner argues that she has taken steps to avoid recurrence, including the use of licensed professional coders to perform independent audits to avoid future errors.  In addition, Petitioner has applied for a position in which she is qualified but is concerned that she may not be considered due to the preclusion. 

In the reconsidered determination, the hearing officer explained that Petitioner’s felony conviction satisfied the regulatory requirements for placement on the preclusion list.  CMS Ex. 1 at 4-5; 42 C.F.R. §§ 422.2, 423.100.  The hearing officer found that Petitioner was convicted of a felony within the preceding 10 years and determined that the conviction was detrimental to the best interests of the Medicare program.  In making the determination, the hearing officer considered the three factors listed in 42 C.F.R. §§ 422.2 and 423.100:  the severity of the offense, when the offense occurred, and any other information that CMS deemed relevant to its determination.  CMS Ex. 1 at 4.

First, CMS found that Petitioner’s felony offense was severe in nature, because Dr. Mantoura intentionally and knowingly made false representations to Medicare, Medicaid, and private insurance companies for her own financial gain.  CMS Ex. 1 at 4.  Next, the

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CMS hearing officer noted that the submission of false claims took place from January 2009 through August 2013, nearly five years.  CMS Ex. 1 at 4.  Finally, the hearing officer considered that Dr. Mantoura’s behavior subjected her to a mandatory IG exclusion.  CMS Ex. 1 at 4.  The hearing officer noted that the “denial of Dr. Mantoura’s Medicare enrollment pursuant to her felony conviction is designed to safeguard the Medicare Trust Funds from unlawful and fraudulent conduct like the type that Dr. Mantoura engaged in.”  CMS Ex. 1 at 4-5. 

The language set forth in 42 C.F.R. §§ 422.2 and 423.100 states that one who has a felony conviction “within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program” is subject to placement on the preclusion list.  Under 42 C.F.R. § 422.222(a)(6): 

CMS has the discretion not to include a particular individual or entity on (or if warranted, remove the individual or entity from) the preclusion list should it determine that exceptional circumstances exist regarding beneficiary access to [Medicare Advantage] items, services, or drugs.  In making a determination as to whether such circumstances exist, CMS considers: 

1. The degree to which beneficiary access to [Medicare Advantage] items, services, or drugs would be impaired; and
2. Any other evidence that CMS deems relevant to its determination. 

42 C.F.R. § 422.222(a)(6).  

Though Petitioner was initially reinstated by private insurance panels, both Cigna and United HealthCare rescinded her participation due to her placement on the CMS preclusion list.  P. Br. at 1.  Petitioner also notes several remedial measures that she has taken since her conviction, such as community service and continuing education classes. 

In the reconsidered determination, the hearing officer acknowledged that Petitioner had taken several remedial measures since her conviction and noted that Petitioner was reinstated by the IG.  CMS Ex. 1 at 4.  However, as the hearing officer stressed, the remedial measures taken by Petitioner were not enough to absolve the felonious conduct that resulted in a conviction.  The preclusion list was created as a means to protect the Medicare Trust Fund from illegal and fraudulent conduct.  83 Fed. Reg. 16,440, 16,641 (Apr. 16, 2018); see 84 Fed. Reg. at 15,682.

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The record establishes that, within the 10 years preceding her Medicare enrollment application, Petitioner was convicted of a felony offense which CMS determined to be detrimental to the best interests of the Medicare program and its beneficiaries.  The CMS hearing officer properly considered the appropriate regulatory factors and justifiably determined that Petitioner’s placement on the preclusion list should be upheld.  42 C.F.R. §§ 422.222(a)(3)(i)(B), 423.120(c)(6)(v)(C)(1)(ii).

Petitioner argues that placing her on the preclusion list is not in the best interests of her patients.  She argues that many of her vulnerable patients are not receiving proper medical care because they refuse to be seen elsewhere.  P. Br. at 1.  CMS has the authority not to include individuals on the preclusion list in exceptional circumstances where beneficiary access to services, drugs, or items would be impaired.  42 C.F.R. § 422.222(a)(6).  In this case, there is no indication that exceptional circumstances exist or that access has been impaired for beneficiaries.  While it is unfortunate that Petitioner’s patients have not found another Medicare provider, that does not rise to the level of exceptional circumstances or impaired access. 

Although CMS did not indicate how long Petitioner would remain on the preclusion list, the regulations provide that Petitioner will be on the list for a 10-year period, beginning on the date of the felony conviction, unless CMS determines that a shorter length of time is warranted.  42 C.F.R. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).  Neither party offered any arguments or evidence to show that CMS determined the duration to be less than 10 years.  Accordingly, Petitioner will be on the CMS preclusion list, beginning January 18, 2022, the date of the reconsidered determination, to October‎ ‎5‎, ‎2025, the end of the 10-year period following the date of her conviction.

VIII.  Conclusion

CMS has established a legal basis to deny Petitioner’s Medicare enrollment application and to include Petitioner on its preclusion list.  Therefore, the denial of Petitioner’s Medicare enrollment application under 42 C.F.R. § 424.530(a)(3) and the inclusion of Petitioner on the CMS preclusion list, beginning January 18, 2022, and continuing until October‎ ‎5‎, ‎2025, are affirmed.  

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Endnotes