Martin Maag, M.D., DAB CR5820 (2021)

DECISION

Petitioner, Martin Maag, M.D., is an emergency room physician, practicing in Florida, who participated in the Medicare program as a supplier of services.  Following a traffic altercation, he was charged with aggravated battery with a deadly weapon (motor vehicle) and pled nolo contendere to the lesser charge of felony criminal mischief.  He did not report his conviction to the Medicare contractor.  The Centers for Medicare & Medicaid Services (CMS) subsequently determined that Petitioner had been convicted of a felony, detrimental to the Medicare program and its beneficiaries, and that he did not report his conviction to the Medicare contractor.  Based on the conviction and his failure to report, CMS has revoked Petitioner’s Medicare enrollment under 42 C.F.R. §§ 424.535(a)(3) and 424.535(a)(9).  Petitioner now appeals the revocation.

I find that CMS is authorized to revoke Petitioner Maag’s Medicare enrollment because, within the ten years preceding, he was convicted of a felony that CMS reasonably determined is detrimental to the best interests of the Medicare program and its beneficiaries.  In the alternative, CMS may also revoke his Medicare enrollment because he did not report his conviction to the Medicare contractor.  I therefore affirm CMS’s determination.

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Background

Petitioner was enrolled in three different Medicare contractor jurisdictions and had multiple provider transaction access numbers (PTANs), all of which have been revoked.  In letters dated June 20, 2018, two of those contractors – First Coast Service Options, Inc.  and Novitas Solutions – advised Petitioner that his Medicare privileges were revoked.  The letters explain that the contractors revoked his Medicare enrollment for two reasons:

1)  pursuant to 42 C.F.R. § 424.535(a)(3), because he was convicted of a felony – criminal mischief (damaging property worth over $1,000); and

2)  pursuant to 42 C.F.R. § 424.535(a)(4), because, on his April 2016 (First Coast) and May 2017 (Novitas) enrollment applications, he affirmatively (and falsely) stated that he had no adverse legal history.

First Coast revoked Petitioner’s enrollment effective November 4, 2015, the date of his felony conviction.  CMS Ex. 1 at 1.  Novitas revoked effective April 25, 2017.  CMS Ex. 1 at 4. 

In a letter dated June 15, 2018, a third contractor, Wisconsin Physicians Service Insurance Corporation, advised Petitioner that it revoked his enrollment effective November 4, 2015, pursuant to 42 C.F.R. §§ 424.535(a)(3) and 424.535(a)(9).  The contractor revoked pursuant to section 424.535(a)(9) because Petitioner did not report an adverse legal action within 30 days, as required by 42 C.F.R. § 424.516(d).  CMS Ex. 1 at 6.

The contractors imposed a three-year enrollment bar, pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 1 at 1-2 (First Coast), CMS Ex. 1 at 4-5 (Novitas), CMS Ex. 1 at 6-7 (Wisconsin Physicians Service). 

Petitioner requested reconsideration.  In separate reconsidered determinations, dated October 17, 2018, a CMS hearing officer upheld the revocation.  In all of the decisions, she concluded that the revocation was proper under section 424.535(a)(3).  She reasoned that Petitioner had been convicted of a felony that is akin to assault and, even if it were not, his actions showed a reckless disregard for the safety of others.  CMS Ex. 2 at 8-9, 19-20, 30-31, 32.

In two of the reconsidered determinations (First Coast and Novitas), the hearing officer also concluded that section 424.535(a)(4) was not a basis for revocation because the application instructions did not specify that a plea of nolo contendere or an “adjudication withheld” is a reportable conviction; Petitioner was therefore not required to report it on the application, and “did not certify as ‘true’ misleading or false information” on that document.  CMS Ex. 2 at 9, 20.

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In the third determination (Wisconsin Physicians Service), the hearing officer affirmed the revocation under section 424.535(a)(3) and concluded that CMS could appropriately revoke Petitioner’s Medicare enrollment under 42 C.F.R. § 424.535(a)(9) because he did not report his felony conviction within 30 days, as required.  CMS Ex. 2 at 31-32.

Petitioner timely appealed, and that appeal is now before me.

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre‑hearing Order at 3, 5 (¶¶ 4(c)(iv), 8, 10) (Dec. 26, 2018).  The matter may therefore be decided based on the written record, without considering whether the standards for summary judgment are satisfied.

CMS submits its brief (CMS Br.) and five exhibits (CMS Exs. 1-5).  Petitioner submits a brief (P. Br.) and 16 exhibits (P. Exs. 1-16).  In the absence of any objections, I admit into evidence CMS Exs. 1-5 and P. Exs. 1-16.

Discussion

CMS may revoke Petitioner Maag’s Medicare enrollment pursuant to 42 C.F.R. §§ 424.535(a)(3) and 424.535(a)(9) because; 1) within ten years preceding the revocation, he was convicted of a felony that CMS reasonably finds detrimental to the best interests of the Medicare program and its beneficiaries; 2) in the alternative, CMS may revoke Petitioner’s enrollment because he did not timely report that conviction to the Medicare contractor.1

Statute and regulations.  CMS may revoke a provider’s or supplier’s Medicare billing privileges if, within the preceding ten years, he was convicted of a “felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.535(a)(3)(i); see also Social Security Act (Act) §§ 1842 (h)(8) and 1866(b)(2)(D).  Offenses for which billing privileges may be terminated include – but are not limited to – felony crimes against persons, such as murder, rape, assault, and other similar crimes, including guilty pleas and adjudicated pretrial diversions.  42 C.F.R. § 424.535(a)(3)(ii)(A).

CMS may also revoke a supplier’s Medicare enrollment if he does not comply with the reporting requirements specified in section 424.516(d).  42 C.F.R. § 424.535(a)(9).  Under section 424.516(d)(1)(ii), a physician must report to his Medicare contractor, within 30 days, “[a]ny adverse legal action.”

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Petitioner’s conviction.  Here, while driving, Petitioner became embroiled in an ugly road-rage confrontation with a motorcyclist and the cyclist’s minor passenger.  CMS Ex. 3 at 3.  Although Petitioner disputes the hearing officer’s account of the events, which was based, in part, on the arresting officer’s probable cause affidavit, he has conceded the following: 

• While he was driving, a speeding motorcycle, “traveling approximately 85 miles per hour,” passed him in the turning lane, and the passenger on the back of the motorcycle (who was a 16-year-old girl) made an obscene gesture;
• Approaching a red light, Petitioner moved his car into the middle lane, so he was sitting next to the motorcycle.  Petitioner got out of his car, and exchanged heated words with the motorcyclist and rider;
• Although he recognized that the motorcyclist was very young, Petitioner encouraged him to “meet me further up the street in a parking lot”;
• When the light turned green, the motorcyclist “took off at a very fast speed,” and was driving recklessly;
• Petitioner followed the motorcycle; “I am not sure what I was thinking other than I have a fast car[,] and I was going to catch up to them”;
• After chasing the motorcycle for a mile, Petitioner caught up;
• Petitioner disputes portions of the probable cause affidavit, which quoted two witnesses who told the police officer (and the damages to the vehicles confirmed) that Petitioner was swerving around traffic and “deliberately crossed his lane of travel in order to hit the motorcycle in the far left lane.”  In contrast, Petitioner maintains that he stepped on the accelerator, “thinking he would pass” the motorcycle.  When he pulled into the motorcycle’s lane of traffic, he thought he was in front of them.  He was not, and the vehicles “made minor contact.”

CMS Ex. 3 at 16, 117.

Petitioner was arrested and charged with aggravated battery with a deadly weapon (motor vehicle).  CMS Ex. 3 at 115. 

On November 4, 2015, Petitioner pled nolo contendere to one count of felony criminal mischief and one count of misdemeanor reckless driving.  The court adjudicated him guilty but withheld the adjudication with respect to the felony count.  CMS Ex. 3 at 6.

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Petitioner was sentenced to 60 days in jail, followed by ten months of “community control” and twelve months of probation.  CMS Ex. 3 at 10-11.

Petitioner argues that he was not convicted of any crime under Florida “or under any other law of any other jurisdiction” because, under his plea agreement, the court withheld an adjudication of guilt.  P. Br. at 7-8.  Federal regulations say otherwise.  For purposes of a section 424.535(a)(3) revocation, “convicted” means that a judgment of conviction has been entered by a federal, state, or local court regardless of whether the judgment of conviction has been expunged or otherwise removed.  42 C.F.R. § 1001.2; see 42 C.F.R. § 424.535(a)(3)(i); Kimberly Shipper, P.A., DAB No. 2804 at 5 (2017), aff’d, Kimberly Shipper, P.A. v. Price, No. 6:17-CV-00253-ADA, 2019 WL 2098120 (W.D. Tex. Mar. 1, 2019) (holding that Petitioner’s guilty plea constituted a conviction, even though the state court withheld adjudication of guilt); Lorrie Laurel, PT, DAB No. 2524 at 4-6 (2013).2

Petitioner also complains bitterly that the contractor hearing officer relied on “unsubstantiated and disputed” evidence that was not part of the criminal court’s factual findings.  P. Br. at 2, 4-6.  He insists that his was a crime against property and is therefore not “akin to” any of the felony offenses enumerated in section 424.535(a)(3)(ii)(A), which are crimes against persons.  P. Br. at 3-4. 

Even disregarding the allegations contained in the probable cause affidavit, Petitioner cannot escape the undisputed fact, established by his conviction and his own admissions, that the “property” he so “willfully and maliciously” damaged was a motorcycle traveling at a high rate of speed, and, that two young people were sitting atop that motorcycle.  CMS Ex. 3 at 3, 16.  Moreover, as part of the same conduct, he was charged – and convicted – of misdemeanor reckless driving with “willful and wanton disregard for the safety of persons or property.”  CMS Ex. 3 at 3-4.  Thus, even accepting Petitioner’s description of the events, he unquestionably showed no regard for the safety of the young people on that motorcycle.

So long as CMS establishes a legal basis for its action, I must sustain the revocation of enrollment.  Stephen White, M.D., DAB No. 2912 at 14 (2018); Cornelius M. Donohue, DPM, DAB No. 2888 at 4 (2018); Jason R. Bailey, M.D., P.A., DAB No. 2855 at 18 (2018).  Although Petitioner’s crimes may not be among those specified in the regulation, CMS has broad authority to determine which felonies are detrimental to the best interests of the program and its beneficiaries.  The categories of cases listed in the regulation were not intended to be exhaustive.  “[I]t would be impossible to identify . . . every felony that could result in a denial or revocation.”  79 Fed. Reg. 72500, 72511 (Dec. 5, 2014).  CMS determines, on a case-by-case basis, whether the felony conviction is detrimental to the

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Medicare program and its beneficiaries.  White, DAB No. 2912 at 15, and cases cited therein.  In making that determination, CMS should consider the severity of the underlying felony.  Id. at 15-16.

Petitioner’s convictions, and the undisputed facts underlying those convictions, show his disregard for the property and safety of others.  CMS thus acted well within its discretion when it found that his felony conviction was detrimental to the Medicare program and its beneficiaries. 

In the alternative, Petitioner undisputedly did not report this “adverse legal action” within 30 days, as required by section 424.516(d).  CMS may therefore revoke his enrollment on that basis. 

Finally, as the Departmental Appeals Board has repeatedly confirmed, I am not authorized to overturn a legally valid agency action based on equitable grounds or otherwise grant equitable relief.  Wendell Foo, M.D., DAB No. 2904 at 25 (2018), citing Foot Specialists of Northridge, DAB No. 2773 at 18 (2017).  I may review whether the regulations authorize CMS to revoke Petitioner’s Medicare enrollment.  So long as CMS shows that one of the regulatory bases for revocation exists, I must uphold the revocation.  Foo, DAB No. 2904 at 3; Wassim Younes, M.D. and 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 justifiably determined that Petitioner Maag was convicted of a felony detrimental to the best interests of the Medicare program and its beneficiaries; it may therefore revoke his Medicare enrollment pursuant to section 424.535(a)(3).  In the alternative, because he did not timely report his conviction, CMS may revoke his enrollment pursuant to section 424.535(a)(9).  I therefore affirm CMS’s determination.

1. I make this one finding of fact/conclusion of law to support my decision.
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2. Before me, Petitioner has not argued that his plea did not constitute a conviction. See P. Br. Under the regulation, the individual is convicted if the court accepts his plea of nolo contendere. 42 C.F.R. § 1001.2.
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