Michael Elliott, DC, DAB CR5806 (2021)

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DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, revoked the Medicare enrollment and billing privileges of Michael Elliott, DC (Dr. Elliott or Petitioner) based on Dr. Elliott's felony conviction involving assault.  CMS also added him to the preclusion list related to Medicare Parts C and D.  Petitioner sought review of CMS's actions.  For the reasons stated below, I affirm CMS's determination.

I.  Background and Procedural History

Dr. Elliott submitted a CMS-855I application seeking enrollment in the Medicare program as a chiropractor.  CMS Ex. 12 at 1, 8.  Dr. Elliott disclosed on this application that he had been convicted for assault and battery on a law enforcement officer resulting in 16 months in jail.  CMS Ex. 12 at 5, 12.  Dr. Elliott attached copies of the sentencing order and his current license to practice as a chiropractic physician in Tennessee.  CMS Ex. 12 at 26-30.  The sentencing order stated that Dr. Elliott had been found guilty on August 15, 2012.  CMS Ex. 12 at 26.  A CMS contractor stamped the application as received on 14720, the Julian calendar designation for May 26, 2020.  CMS Ex. 12.

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In a July 8, 2020 initial determination, the CMS contractor revoked Dr. Elliott's Medicare enrollment and billing privileges, effective August 15, 2012, under 42 C.F.R. § 424.535(a)(3), based on a felony conviction.2   The initial determination indicated that it interpreted Petitioner's submission of a CMS-855I as a request to reactivate his Medicare billing privileges, but that the contractor could not process that application in light of the revocation.  Further, the initial determination stated that Dr. Elliott would be eligible to re-enroll in the Medicare program on August 16, 2022, which is ten years and one day after the date of his conviction.  Finally, the initial determination stated that Dr. Elliott's name would appear on CMS's preclusion list.  Adding his name to that list means that any claims for services provided under a Medicare Advantage (MA) program (i.e., Medicare Part C) may be denied.  Further, pharmacy claims submitted under Medicare Part D for any prescriptions Dr. Elliott might write may be rejected or denied.  CMS Ex. 1.

On August 11, 2020, Petitioner requested reconsideration by email and later in a letter that accompanied the submission of additional documents.  In those submissions, Petitioner explained the factual circumstances surrounding his conviction.  Petitioner stated that he was arrested for being intoxicated in public but that he ultimately was charged with felony assault because he spat on the floor and a police officer said that Petitioner spat on the officer.  Petitioner admitted that he is ashamed of his past behavior, which he asserted was the result of alcohol addiction.  Petitioner explained that he had ceased to practice as a chiropractor in 2011 before he acquired his alcohol problem and before the incident with the officer, but that he has sought to pursue a chiropractic career following his jail sentence and rehabilitation.  Petitioner stated that he bought a chiropractic practice in Tennessee following reinstatement of his license.  Both Blue Cross/Blue Shield and Cigna accepted him as a network provider.  CMS Exs. 2-3.

In an August 20, 2020 reconsidered determination, a CMS hearing officer upheld the revocation and preclusion based on Petitioner's conviction.  In that reconsidered determination, the hearing officer specified the factual reasons why she concluded that Petitioner's conviction was detrimental to the best interests of the Medicare program.  CMS Ex. 13.

Dr. Elliott timely filed a request for hearing to dispute the reconsidered determination.  He also filed several documents with the hearing request.  On October 27, 2020, the Civil Remedies Division (CRD) acknowledged the hearing request and issued my Standing Prehearing Order.

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In accordance with the Standing Prehearing Order, CMS filed its prehearing exchange, which included a motion for summary judgment and brief, and 13 exhibits (CMS Exs. 1-13).  Included in CMS's exhibits were the documents that Petitioner submitted with his reconsideration request and hearing request.

Petitioner declined to file a prehearing exchange and requested that I render a decision based on the record.

Therefore, I admit CMS Exhibits 1 through 13 into the record and issue this decision based on the written record.  42 C.F.R. § 498.66.

II.  Issues

1. Whether CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3).
2. Whether CMS had a legitimate basis to place Petitioner on CMS's preclusion list.  42 C.F.R. §§ 422.2 and 423.100.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), (20), 498.5(l)(2), (n)(2); see also 42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 424.545(a), 498.1(g).

IV.  Findings of Fact

1) Petitioner was first licensed in the state of Tennessee as a chiropractic physician in May 2001 and is currently so licensed in that state.  CMS Ex. 10; CMS Ex. 12 at 6; see also CMS Exs. 8, 11.

2) According to a Blacksburg, Virginia, Police Department Preliminary Investigative Report, a police officer arrested Petitioner for being "Drunk in Public."  The Report detailed that, while transporting Petitioner to a video magistrate's hearing, Petitioner became aggressive, spit on an officer, and jumped off a bench toward officers requiring the officers to restrain him.  The police obtained arrest warrants against Petitioner for Drunk in Public, Resisting Arrest, and Assault and Battery-Law Enforcement Officer.  CMS Ex. 6 at 2.

3) On November 21, 2012, a judge of the Circuit Court of Montgomery, Virginia, issued a Sentencing Order in which the judge indicated that Petitioner was found guilty on August 15, 2012, of felony Assault and Battery-Law Enforcement Officer (Va. Code § 18.2-57) and misdemeanor Resisting Arrest (Va. Code § 18.2-

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479.1).  CMS Ex. 9 at 1.  The judge sentenced Petitioner to five years of incarceration for the Assault and Battery-Law Enforcement Officer felony offense but suspended three years and eight months of that sentence.  CMS Ex. 9 at 2.  The judge sentenced Petitioner to a one-year term of incarceration for the Resisting Arrest offense but ordered that term to run concurrently with the sentence of the other offense.  CMS Ex. 9 at 2-3.  The judge also ordered that Petitioner complete the New Life Recovery and Aftercare Program on release from incarceration.  CMS Ex. 9 at 4.

4) Following incarceration, Petitioner attended and successfully completed the New Life Recovery and Aftercare Program in April 2015.  CMS Ex. 5 at 12-13.

5) On August 21, 2015, Petitioner's probation officer wrote that Petitioner has acted to improve his situation and had been successful during his probation period.  The probation officer indicated that he would seek early release from probation for Petitioner.  CMS Ex. 7 at 1.

V.  Conclusions of Law and Analysis

1. CMS had a legitimate basis to revoke Petitioner's enrollment and billing privileges in the Medicare program because Petitioner was convicted, within the last ten years, of Assault and Battery-Law Enforcement Officer, 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).

A chiropractor who participates in the Medicare program is a "supplier."  42 U.S.C. § 1395x(d), (r)(1).  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 regulations, a supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  Once enrolled, 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

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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).

In the present case, the record establishes the elements necessary for CMS to revoke Petitioner under 42 C.F.R. § 424.535(a)(3).  The record indicates that a state court found Petitioner guilty of a crime; therefore, Petitioner was "convicted" for purposes of revocation.  42 C.F.R. § 1001.2.  Further, that conviction took place on August 15, 2012; therefore, the conviction occurred less than ten years before the issuance of the initial determination to revoke on July 8, 2020.  In addition, Petitioner was convicted of assault and battery on a law enforcement officer, which is a class six felony under Virginia law.  Va. Code § 18.2-57(C).  Finally, Petitioner was convicted of assault and battery, which is one of the specifically enumerated crimes against persons that the regulations list as detrimental to the best interests of the Medicare program and its beneficiaries.  42 C.F.R. § 424.535(a)(3)(ii)(A).

In his hearing request, Petitioner contends that CMS should not have revoked his Medicare enrollment because it is eight years since his conviction, and he has had no charges against him since that time.  Further, he has been practicing as a chiropractor again since 2018.  Finally, Petitioner denies that he was guilty of felony assault and that the police statement as to his conduct is not true.

It is true that Petitioner's conviction is for conduct long ago.  It is also true that Petitioner has made excellent efforts to restore his life and career.  However, as indicated above, CMS was within its discretionary authority to revoke Petitioner's Medicare enrollment because the conviction was less than ten years ago.  Further, a state court found Petitioner guilty of assault; therefore, Petitioner's felony offense is per se detrimental to the Medicare program and its beneficiaries under 42 C.F.R. § 424.535(a)(3)(ii)(A).  Therefore, I must 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 under 42 C.F.R. § 424.535(a)(3).

2. CMS had a legitimate basis to add Petitioner to the CMS preclusion list.

On July 22, 2016, the Comprehensive Addiction and Recovery Act of 2016 (CARA) was enacted, and its purpose was to "authorize the Attorney General and Secretary of Health and Human Services to award grants to address the prescription opioid abuse and heroin use crisis, and for other purposes."  Pub. L. No. 114-198, 130 Stat. 695 (2016).  Section 704 of the CARA called on the Secretary to establish a program to prevent prescription

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drug abuse under Medicare Parts C and D.  130 Stat. at 742-52.  Among other things, Section 704 amended the Social Security Act (42 U.S.C. § 1395w-10(c)) to require the Secretary to implement a drug management program to limit access to controlled substances for at-risk Medicare beneficiaries.  Id. at 742-48.  Section 704(g) of the CARA directed the Secretary to promulgate regulations implementing the provisions of that section of the act.  Id. at 751-52.  Section 704(g)(1) directed that "amendments made by this section shall apply to prescription drug plans . . . for plan years beginning on or after July 1, 2019."  Id. at 751.  Additionally, Section 704(b)(2) of the CARA specifically amended the Social Security Act, at 42 U.S.C. § 1395w-104(c), to add a provision for a "utilization management tool to prevent drug abuse," and required that the Secretary conduct a "[r]etrospective utilization review to identify . . . providers of services or suppliers that may facilitate the abuse or diversion of frequently abused drugs by beneficiaries."  Id. at 748.

The Secretary issued a notice of proposed rulemaking to implement the CARA on November 28, 2017.  82 Fed. Reg. 56,336 (Nov. 28, 2017).  As relevant here, the Secretary proposed that an MA organization may not make payment for an item or service that is furnished by an individual or entity on a newly established preclusion list, and likewise, that a Part D plan sponsor must reject pharmacy claims for Part D drugs if the prescriber is on the same preclusion list.  Id. at 56,340.  The Secretary explained that individuals, entities, and prescribers would be placed on the preclusion list if certain requirements were all met, to include having engaged in conduct that is detrimental to the best interests of the Medicare program and its beneficiaries.  Id.  The Secretary "note[d] also that [his] proposal is of particular importance when considering the current nationwide opioid crisis" and that "the inclusion of problematic prescribers on the preclusion list could reduce the amount of opioids that are improperly or unnecessarily prescribed by persons who pose a heightened risk to the Part D program and Medicare beneficiaries."  Id. at 56,444.  With respect to the Part C program, the Secretary remarked that "we believe that an appropriate balance can be achieved between this program integrity objective and the desire to reduce the burden on the provider and supplier communities" and "propose[d] to utilize the same 'preclusion list' concept in MA that we are proposing for Part D."  Id. at 56,448.  The Secretary further remarked that "[w]e believe this approach would allow us to concentrate our efforts on preventing MA payment for items and services furnished by providers and suppliers that could pose an elevated risk to Medicare beneficiaries and the Trust Funds, an approach, as previously mentioned, similar to the risk-based process in § 424.518."  Id.  In his final rule, the Secretary established a January 1, 2019 effective date for the preclusion list, which is consistent with the CARA's mandate.  83 Fed. Reg. 16,440 (Apr. 16, 2018).

The regulation established a single list of individuals and entities for whom MA plans cannot provide reimbursement for items and services they provide, and of prescribers for

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whom Medicare Part D plans cannot provide reimbursement for any prescriptions the individuals write.  42 C.F.R. §§ 422.222 and 423.120(c)(6).

As applicable to this case, for CMS to include an individual, entity, or prescriber on its preclusion list, all the following three requirements must be met:

(i) The [individual, entity, or prescriber] is currently revoked from Medicare under [42 C.F.R.] § 424.535.
(ii) The [individual, entity, or prescriber] is currently under a reenrollment bar under [42 C.F.R] § 424.535(c).
(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph . . ., CMS considers the following factors:

(A) The seriousness of the conduct underlying the. . . . revocation.
(B) The degree to which the. . . . conduct could affect the integrity of the [Medicare/Part D] program.
(C)  Any other evidence that CMS deems relevant to its determination. . .

42 C.F.R. §§ 422.2 and 423.100.

Petitioner is currently revoked, under a re-enrollment bar, and was convicted of the felony of assault and battery, which the regulations consider per se detrimental to the best interests of the Medicare program.  In the reconsidered determination, the CMS hearing officer provided a detailed factual analysis as to the detrimentally of the underlying facts of Petitioner's crime.  CMS Ex. 13 at 4.  Given that Petitioner's criminal offense is per se detrimental to the Medicare program under 42 C.F.R. § 424.535(a)(3)(ii)(A), I need not conduct an additional analysis of this issue.  If such an analysis is necessary, I agree with the CMS hearing officer's analysis.  Therefore, I uphold CMS's decision to include Petitioner on the preclusion List.

VI.  Conclusion

I affirm CMS's revocation of Petitioner's Medicare enrollment and billing privileges and the inclusion of Petitioner on the preclusion list.

1. I modify the case caption to add Petitioner's Doctor of Chiropractic degree.
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2. The CMS contactor provided an erroneous factual basis for the revocation involving an alleged conviction in 2019.  CMS's reconsidered determination identified this error and corrected it.  CMS Ex. 13 at 3.  Petitioner does not appear to have been prejudiced by this error because, in his request for reconsideration, he discussed the 2012 conviction.
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