Colby Norris, DAB CR6044 (2022)

DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke the enrollment of Petitioner, Colby Norris, in the Medicare program as a supplier and to add Petitioner’s name to CMS’s preclusion list related to Medicare Parts C and D.

I. Background and Procedural History

Petitioner is a certified physician assistant (PA) who was enrolled as a supplier in the Medicare program.  CMS Ex. 1; P. Ex. 46 at 2.  In a May 4, 2021 initial determination, a CMS Contractor revoked Petitioner’s enrollment in the Medicare program, effective January 13, 2020, for the following reasons:

42 CFR § 424.535(a)(3) – Felonies

[CMS] has been made aware of your December 2, 2019, felony conviction, as defined in 42 C.F.R. § 1001.2, for Reckless Driving with Serious Bodily Injury in violation of

Page 2

Florida Statutes § 316.192 3c2 in the Sixth Judicial Circuit Court in and for Pinellas County, Florida.

42 CFR § 424.535(a)(4) – False or Misleading Information

On your CMS 855 enrollment application, signed on February 26, 2020, you answered “no” in section three of the application, indicating that you did not have any adverse legal history.  However, you were convicted of a felony for Reckless Driving with Serious Bodily Injury on December 2, 2019.  A felony conviction is listed [as] an adverse legal action that requires reporting on the 855I application.

P. Ex. 5 at 1. The initial determination stated that Petitioner may be eligible to enroll again in the Medicare program on December 3, 2029. P. Ex. 5 at 3. Finally, based on the revocation, the initial determination stated that Petitioner was being added to CMS’s preclusion list, which means:

[A]ny claims you submit for health care items or services furnished under a Medicare Advantage (MA) benefit may be denied.  Additionally, any pharmacy claims submitted for Medicare Part D drugs that you prescribe may be rejected or denied.  This means that your patients may not be able to receive coverage of their prescriptions using their Part D benefits at the pharmacy.

P. Ex. 5 at 2.

Petitioner requested that CMS reconsider the imposition of the revocation and preclusion, and Petitioner submitted many documents in support of the request.  See DAB E-File Document No. 1a at 1-5; P. Ex. 6.

In a September 2, 2021 reconsidered determination, a CMS hearing officer upheld the revocation and preclusion.  DAB E-File Document No. 1a.  Regarding 42 C.F.R. § 424.535(a)(3) as a basis for revocation, the CMS hearing officer concluded that Petitioner’s guilty plea to a third-degree felony of Reckless Driving with Serious Bodily Injury qualified as a conviction under 42 C.F.R. § 1001.2 because a state court accepted that guilty plea and deferred the adjudication of Petitioner’s guilt while placing him on probation for five years.  DAB E-File Document No. 1a at 6.  Further, the CMS hearing officer concluded that the offense that Petitioner was convicted of committing was per se detrimental to the best interests of the Medicare program and its beneficiaries because Petitioner’s felony offense included the willful and wanton disregard for the safety of

Page 3

persons or property and that it caused serious bodily injury, i.e., an injury to another that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of a bodily member or organ.  As a result, the CMS hearing officer concluded that Petitioner’s offense was a “felony crime against persons” under 42 C.F.R. § 424.535(a)(3)(ii)(A).  DAB E-File Document No. 1a at 6-7.

In addition, the CMS hearing officer also concluded that Petitioner’s felony offense was detrimental to the best interests of the Medicare program and its beneficiaries based on an evaluation of the facts and circumstances of his criminal case.  DAB E-File Document No. 1a at 7-8.

The CMS hearing officer also upheld the revocation based on 42 C.F.R. § 424.535(a)(4).  The CMS hearing officer concluded that there was no dispute that Petitioner certified false information on his Medicare enrollment application (i.e., Petitioner was not subject to any final adverse legal actions) as true.  Although Petitioner argued that he had disclosed his criminal record to a company, Parallon, that prepared his enrollment application and that his certification was an honest mistake, the CMS hearing officer indicated that intent to deliberately provide the false information was not an element to revoke under § 424.535(a)(4).  DAB E-File Document No. 1a at 8-9.

Finally, the CMS hearing officer upheld the addition of Petitioner’s name to CMS’s preclusion list, concluding that he had been revoked, was under a reenrollment bar, and the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  DAB E-File Document No. 1a at 9-10.

Petitioner timely requested a hearing to dispute the reconsidered determination.  The Civil Remedies Division acknowledged receipt of the hearing request and issued my Standing Prehearing Order (SPO), which provided instructions and dates for prehearing submissions.  As its prehearing submission, CMS filed a brief, which included a motion for summary judgment, with two marked exhibits.  Petitioner filed his prehearing submission, which consisted of a prehearing brief (P. Br.), a response to CMS’s motion for summary judgment, a request to submit new evidence (i.e., CMS-855A and CMS-855I blank enrollment applications), and 54 proposed exhibits.

II. Admission of Evidence and Decision on the Written Record

Neither party objected to any of the proposed exhibits.  SPO ¶ 10; Civil Remedies Division Procedures (CRDP) § 14(e).  Therefore, I admit all of them into the record.

I directed the parties to submit the written direct testimony for any witnesses they wanted to offer and explained that an evidentiary hearing would only be necessary if a party requested to cross-examine a witness for which written direct testimony had been

Page 4

submitted.  SPO ¶¶ 11-13; CRDP §§ 16(b), 19(b).  Petitioner submitted written direct testimony for four witnesses (P. Exs. 1-4).  Because CMS neither submitted written direct testimony from any witnesses nor requested to cross-examine any of Petitioner’s witnesses, I issue this decision based on the written record.  SPO ¶ 14; CRDP § 19(d).

III. 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) and (4).
2. Whether CMS had a legitimate basis to place Petitioner on CMS’s preclusion list.  42 C.F.R. §§ 422.2 and 423.100.

IV. 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).

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

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to create regulations governing the enrollment of providers and suppliers to furnish health care items and services to Medicare program beneficiaries.  See 42 U.S.C. § 1395cc(j).  For purposes of the Medicare program, PAs are considered suppliers.  See 42 U.S.C. §§ 1395x(d), (s)(2)(K)(i), (aa)(5)(a); 42 C.F.R. §§ 410.74, 498.2 (definition of Supplier paragraph (5)).

Under the regulations, a supplier must enroll in the Medicare program to receive payment for covered Medicare items or services provided to beneficiaries.  42 C.F.R. § 424.505.  To enroll, a supplier must complete and file an enrollment application with CMS and meet all of the requirements to be a supplier.  42 C.F.R. §§ 424.510, 424.530.

Once enrolled, CMS may revoke a supplier’s enrollment for any of the reasons stated in 42 C.F.R. § 424.535(a).  When CMS revokes enrollment, it will establish a re-enrollment bar from one to ten years in duration.  42 C.F.R. § 424.535(c).  If CMS revokes a supplier’s enrollment and establishes a reenrollment bar, CMS may also add the supplier to CMS’s preclusion list if CMS determines that the basis for revocation is detrimental to the best interests of the Medicare program.  42 C.F.R. §§ 422.2, 423.100.

A supplier may request a hearing before an administrative law judge to dispute a revocation or being added to CMS’s preclusion list.  42 C.F.R. §§ 498.3(b)(17), (20), 498.5(l)(2), (n)(2).  However, “the right to review of CMS’s determination by an

Page 5

[administrative law judge] serves to determine whether CMS has the authority to revoke [the supplier’s] Medicare billing privileges, not to substitute the [administrative law judge’s] discretion about whether to revoke.”  Letantia Bussell, DAB No. 2196, at 13 (2008) (emphasis omitted).  A supplier may appeal an administrative law judge’s decision to the Departmental Appeals Board (DAB).  42 C.F.R. § 498.5(l)(3), (n)(3).

1. On January 13, 2017, Petitioner was driving a vehicle in which the right side of the vehicle and the head of a person in the passenger seat stuck a tree on the side of the road.  Petitioner’s blood alcohol level was determined to be 0.236 / 0.239 based on two blood samples.  The passenger, R.G., survived the crash but was permanently partially paralyzed.

On January 13, 2017, Petitioner went to a restaurant and then a bar with friends, including his best friend, R.G.  After leaving the bar, Petitioner was driving a vehicle registered to his father with his friend, R.G. in the front passenger seat.  At approximately 6:00 p.m., Petitioner was involved in a single-car accident in which R.G. received serious injuries.  Specifically, the right side of Petitioner’s vehicle hit a tree on the side of the road.  R.G.’s head also impacted with the tree resulting in severe head trauma.  Petitioner continued driving and did not stop until he parked in the driveway of a house.  P. Ex. 1 at 5-6; CMS Ex. 2 at 3-5, 8-10.

Petitioner called 911.  After police arrived, they smelled alcohol on Petitioner’s breath, and noticed that Petitioner’s eyes were bloodshot and that his speech was slurred.  Petitioner consented to blood and oral swab samples being taken.  The analysis of two blood samples showed that Petitioner’s blood alcohol level was 0.236 and 0.239.  Petitioner denied being in the vehicle during the crash, despite admitting that the vehicle was registered to his father.  Petitioner said he had received a call that R.G. had been hurt.  When asked, Petitioner was unable to identify who he had been with when he allegedly received the call about the crash.  Investigators established that Petitioner was not at the location (a bar) where Petitioner had said he had been.  The police investigation located the scene of the crash.  The investigation also uncovered a text message from Petitioner to a friend taking responsibility for the injuries to R.G.  One of the investigators concluded that the vehicle’s driving compartment had been wiped down with cleaning wipes.  CMS Ex. 2 at 4-5, 9-10.

R.G. was treated at a hospital and was sufficiently injured that he will permanently need the use of a wheelchair based on spinal/neck fractures from the crash.  P. Ex. 1 at 5; CMS Ex. 2 at 3-4, 8, 10.

Page 6

2. Based on the January 13, 2017 vehicle crash, on December 2, 2019, an Assistant State Attorney filed an Amended Felony Information in the Circuit Court for the Sixth Judicial Circuit of Florida in and for Pinellas County (Circuit Court) charging Petitioner with a third-degree felony for Reckless Driving with Serious Bodily Injury and a first-degree misdemeanor for Driving Under the Influence.  In addition, on December 2, 2019, Petitioner filed a Plea Form with the Circuit Court in which Petitioner pleaded guilty to the charges in the Amended Information.  In an Order of Probation signed by the Circuit Court on December 2, 2019, the Circuit Court recorded Petitioner’s guilty plea to the felony charge of Reckless Driving with Serious Bodily Injury, withheld adjudication of that charge, placed Petitioner on probation for five years, and advised Petitioner that a violation of his probation conditions could result in the Circuit Court adjudicating Petitioner guilty of the felony offense and sentencing Petitioner for that offense.

On March 9, 2018, an Assistant State Attorney filed a Felony Information in the Circuit Court charging Petitioner with a third-degree felony under Chapter 316.193(3)(c)(2) of the Florida Statutes due to the January 13, 2017 vehicle crash.  CMS Ex. 2 at 7; see P. Ex. 1 at 7.  Based on the affidavit filed with the Felony Information, on March 13, 2018, a judge of the Circuit Court found probable cause to hold and bind Petitioner over for trial.  CMS Ex. 2 at 11.  On March 15, 2018, Petitioner pleaded not guilty to the charge in the Felony Information.  CMS Ex. 2 at 15.

On December 2, 2019, an Assistant State Attorney filed an Amended Felony Information in the Circuit Court charging Petitioner with the third-degree felony of Reckless Driving with Serious Bodily Injury, as in the original Felony Information, and a first-degree misdemeanor of driving under the influence.  CMS Ex. 2 at 18-19.  The following facts were alleged regarding the felony charge:

[Petitioner] in the County of Pinellas and State of Florida, on the 13th day of January, in the year of our Lord, two thousand seventeen, did drive a motor vehicle upon the highways of the State of Florida in willful or wanton disregard for the safety of persons or property and did cause serious bodily injury to another person, to-wit:  [RG]; contrary to Chapter 316.192(3)(c)(2), Florida Statutes, and against the peace and dignity of the State of Florida.

CMS Ex. 2 at 18.

On December 2, 2019, Petitioner signed a Plea Form in which he withdrew his previously entered not-guilty plea and entered a plea of guilty to both charges against him, including

Page 7

the Reckless Driving with Serious Bodily Injury felony.  The Plea Form advised Petitioner that, should the court accept his guilty plea, then Petitioner understands that he would be waiving his right to contest the criminal charges through a trial.  CMS Ex. 2 at 35-38; see P. Ex. 1 at 7.

On December 2, 2019, the Circuit Court entered an Order of Probation in which the Circuit Court acknowledged that Petitioner entered a plea of guilty to the felony charge of Reckless Driving with Serious Bodily Injury.  CMS Ex. 2 at 23.  The Circuit Court further ordered that it was withholding adjudication of the felony charge:

Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that [Petitioner] be placed on PROBATION for a period of 5 Years under the supervision of the Department of Corrections, subject to Florida law.

CMS Ex. 2 at 23.  The Circuit Court also placed 23 conditions and special conditions on Petitioner, including that Petitioner:  cannot leave the county of his residence without consent of a probation officer; cannot possess firearms, and can only possess any other weapons, with the consent of a probation officer; is subject to warrantless searches at any time by a probation officer or a law enforcement officer; is subject to random testing for alcohol or controlled substances; and will/has paid restitution to RG.  CMS Ex. 2 at 23-24; P. Ex. 1 at 7.  Finally, the Circuit Court advised Petitioner that:

If you violate any of the conditions of your probation, you may be arrested and the court may revoke your probation, adjudicate you guilty if adjudication of guilt was withheld, and impose any sentence that it might have imposed before placing you on probation or require you to serve the balance of the sentence.

CMS Ex. 2 at 25.

3. 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 a felony that is detrimental to the best interests of the Medicare program and its beneficiaries under 42 C.F.R. § 424.535(a)(3).

The Act authorizes the Secretary to terminate the enrollment of a physician or other supplier in the Medicare program if the physician or other supplier has been convicted under federal or state law of an offense that the Secretary determines is detrimental to the best interests of the Medicare program or program beneficiaries.

Page 8

42 U.S.C. § 1395u(h)(8).  The Secretary effectuated this statutory provision by authorizing CMS to revoke a supplier’s enrollment when 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).

Petitioner disputes that he was convicted of a felony and, even if he had been, Petitioner’s felony is not detrimental to the best interests of the Medicare program and its beneficiaries.1   I disagree with Petitioner.

1. Petitioner was convicted, within the last ten years, of a Florida felony offense. 

I conclude that Petitioner was convicted of a Florida felony within the last ten years for purposes of a revocation under § 424.535(a)(3). As quoted above, the definition of the word “convicted” is taken from 42 C.F.R. § 1001.2, which states, in pertinent part, the following:

Convicted means that -

* * * * *

(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.

The record supports the conclusion that Petitioner’s criminal matter meets both of these definitions.

As discussed in more detail above, on December 2, 2019, an Amended Felony Information was filed in the Circuit Court charging Petitioner with the third-degree felony of Reckless Driving with Serious Bodily Injury and, also on that date, Petitioner filed a Plea Form in which he entered a plea of guilty to that felony.  CMS Ex. 2 at 18-19, 35-36.  On December 2, 2019, the Circuit Court entered an Order of Probation in which the Circuit Court acknowledged that Petitioner entered a plea of guilty to the felony charge of Reckless Driving with Serious Bodily Injury, withheld adjudication of that

Page 9

charge, placed Petitioner on probation for five years, and warned Petitioner that any violation of the conditions of his probation could result in the Circuit Court adjudicating Petitioner guilty of the charge and sentencing Petitioner.  CMS Ex. 2 at 23-25.

Because Petitioner pleaded guilty to a Florida state felony and the Circuit Court accepted that plea (i.e., ordering probation and setting strict conditions on Petitioner due to his guilty plea), I conclude that Petitioner is “convicted” of that felony under the definition for that term in § 1001.2.

In addition, the Circuit Court made it clear that adjudication of guilt was withheld so long as Petitioner complied with the conditions of probation placed on him by the Circuit Court.  If Petitioner violated any of the conditions, Petitioner would be subject to being adjudged guilty of his crime and sentenced.  Because the Circuit Court deferred adjudication of Petitioner’s criminal charge, Petitioner’s criminal disposition meets the definition of the word “convicted.”  See Travers v. Shalala, 20 F.3d 993, 997 (9th Cir. 1994) (“In a deferred adjudication . . ., if the defendant does not live up to the terms of his agreement, he is not free to set aside his plea or proceed to trial—the court may simply enter a judgment of conviction.  Under those circumstances, the entry of a judgment is a mere formality because the defendant has irrevocably committed himself to a plea of guilty or no contest which cannot be unilaterally withdrawn.”); Rudman v. Leavitt, 578 F. Supp. 2d 812, 815 (D. Md. 2008).

Petitioner does not dispute that the disposition of the felony charge against him meets the definition of “convicted” in § 1001.2.  Rather, Petitioner argues that the Secretary improperly adopted the definition of “convicted” from another statute that the Secretary administers (i.e., 42 U.S.C. § 1320a-7(i)) and failed to consider whether Florida law indicates Petitioner was convicted of a crime.  P. Br. at 6-7.  However, the DAB has previously addressed all of Petitioner’s arguments and rejected them.2   Dennis McGinty, PT, DAB No. 2838 at 8-11 (2017).

2. Petitioner’s felony conviction is per se detrimental to the best interests of the Medicare program and its beneficiaries. 

Page 10

The Secretary promulgated, through formal notice and comment procedures, 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 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).

CMS determined that Petitioner’s felony conviction was detrimental to the best interests of the Medicare program and its beneficiaries both because it was a felony crime against persons (i.e., per se detrimental), and because the facts and circumstances of the criminal case (i.e., a case-by-case analysis) support that conclusion.  DAB E-File Document 1a at 6-8.  Petitioner disputes that CMS correctly made either determination.  Here I discuss Petitioner’s objections to CMS’s determination that his felony conviction is per se detrimental.  Below, I discuss CMS’s case-by-case analysis.

Petitioner asserts that his crime was not a crime against persons because such crimes must be directed at a person, whereas reckless driving is not directed at anyone in particular.  P. Br. at 12.  Further, Petitioner argues that the examples of crimes against persons listed in the regulation are all crimes that require intent; however, Petitioner’s offense was based on reckless behavior.  Petitioner posits that his crime is not a crime against persons simply because someone was hurt as a result of the crime.  P. Br. at 12-13.

Petitioner was convicted of the felony of Reckless Driving with Serious Bodily Injury.  In Florida, reckless driving is when a person “drives a vehicle in willful or wanton disregard for the safety of persons or property . . . .”  Fla. Stat. Ann. § 316.192(1)(a).  However, being convicted of that crime once, or even twice, is a misdemeanor.  See Fla. Stat. Ann. § 316.192(2).  It is only when a person both engages in reckless driving and causes serious bodily injury to another that he or she has committed a felony.  Fla. Stat. Ann. § 316.192(3)(c)(2).

As indicated above, the regulation provides examples of felony offenses against persons (i.e., murder, rape, assault) so that there can be some additional clarity as to the type of offenses that are covered.  That list, however, does not limit the category of crimes against persons because that category includes “other similar crimes.”  42 C.F.R. § 424.535(a)(3)(ii)(A).  The phrase “other similar crimes” is not to be interpreted narrowly.  Ahmed v. Sebelius, 710 F. Supp. 2d. 167, 174 (D. Mass. 2010).

I do not find Petitioner’s argument persuasive that crimes against persons are limited to crimes that require intent.  The DAB concluded that felony disorderly conduct, which involved the reckless handling, displaying, or discharging of a deadly weapon was

Page 11

considered sufficiently similar to assault to qualify as a per se detrimental crime against persons.  Sunsites Pearce Fire District, DAB No. 2926 at 11-12 (2019) rev’d on other grounds, Sunsites-Pearce Fire District v. Azar, No. CV-19-00203 (D. Ariz. July 13, 2020).  Further, in another case where a felony assault conviction only required negligence, the DAB concluded (in the context of an enrollment denial case) that it still qualified as a crime against persons.

The argument attempting to distinguish “criminal intent” crimes from “criminal negligence” crimes appears to assume that section 424.530(a)(3)(i)(A) contemplates only those felony crimes against persons for which the underlying statute defining the crime specifically includes intent as an element. But nothing in the plain language of section 424.530 supports such a reading.  Sections 424.530(a)(3)(i) and 424.530(a)(3)(i)(A) read together mean that enrollment may be denied based on a felony conviction for crime(s) against person(s).  That section 424.530(a)(3)(i)(A) identifies example crimes like murder (an “intent” crime) and then uses the words “other similar crimes” does not necessarily mean that the regulation contemplates only “intent” crimes.

* * * * *

In so stating CMS also reinforced its position that it has the authority to consider a particular felony crime to determine what if any risk the person who committed such a crime poses to the program regardless of how the underlying criminal statute defines the crime.  In accordance with the enrollment regulations discussed above and in light of CMS’s preamble language, that Petitioner pleaded guilty to violating Missouri law which includes criminal negligence as an element of “assault” does not warrant a conclusion that there is no qualifying felony assault for purposes of section 424.530(a)(3).  Regardless of intent or negligence, Petitioner’s assault was a felony crime against a person.

John A. Hartman, D.O., DAB No. 2911 at 13 (2018).

While Petitioner’s argument seeks to minimize his crime by simply referring to it as reckless driving, as indicated above, simple reckless driving is a misdemeanor that would not result in revocation.  In this case, Petitioner’s felony conviction included serious bodily injury.  The Florida statute defines “serious bodily injury” as “an injury to another

Page 12

person, which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”  Fla. Stat. Ann. § 316.192(3)(c)(2).  As Petitioner testified, the passenger in his case, R.G., was treated at a hospital and was sufficiently injured that he will permanently need the use a wheelchair as a result of Petitioner’s reckless driving.  P. Ex. 1 at 6; see CMS Ex. 2 at 10.  RG’s “head impacted a tree” during Petitioner’s car crash.  CMS Ex. 2 at 9.  Based on blood samples taken at the scene, Petitioner’s blood alcohol level results were 0.239 and 0.236, which were greatly in excess of the legal limit of 0.08.  CMS Ex. 2 at 9, 18.

Based on the record in this case, I conclude that Petitioner’s felony conviction, which required willful recklessness and serious bodily injury, is sufficiently similar to assault for it to qualify as a crime against persons.

3. CMS’s case-specific determination that Petitioner’s felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries is reasonable. 

In addition to comparing Petitioner’s felony conviction to the listed examples of criminal offenses in § 424.535(a)(3)(ii) that are per se detrimental, CMS also had the authority to determine that Petitioner’s felony conviction is detrimental to the Medicare program and its beneficiaries based on “a case-specific, adjudicative determination.”  Eva Orticio Villamor-Goubeaux, DAB No. 2997 at 9-10 (2020); see Fayad v. Sebelius, 803 F. Supp. 2d 699, 704 (E.D. Mich. 2011).  Because the Secretary has authorized CMS to make the determination as to whether a felony conviction is detrimental, my review of that determination is necessarily deferential.

Despite this, CMS still must “explain[] why the offense is detrimental to the Medicare program and its beneficiaries.”  Michael Scott Edwards, OD, and M. Scott Edwards, OD, PA, DAB No. 2975 at 11 (2019).  Further, the determination must be reasonable.  Villamor-Goubeaux, DAB No. 2997 at 10; see Fayad v. Sebelius, 803 F. Supp. 2d 699, 704 (upholding a determination that a felony offense was detrimental because “the Secretary reasonably concluded that Plaintiff’s continued participation in the Medicare program was contrary to the best interests of that program.”).

CMS provided an explanation as to why Petitioner’s felony conviction was detrimental in the reconsidered determination.  The CMS hearing officer discussed the following as part of the case-specific determination:  Petitioner had crashed his vehicle while having a blood alcohol level significantly higher than the legal limit in Florida; Petitioner was so intoxicated that his memory lapsed and did not remember driving from the bar; a passenger in Petitioner’s car, R.G., suffered spinal and neck fractures resulting in partial paralysis, and Petitioner was ordered to pay $75,000 and 12.5% of his net income until

Page 13

August 2025 as restitution to R.G.  DAB E-File Document No. 1a at 7.  The CMS hearing officer concluded the following:

[Petitioner’s] high blood alcohol level, such that it impaired his memory so severely, and the high value of the restitution he was ordered to pay, indicates that the offense is detrimental to the Medicare program and its beneficiaries. [Petitioner’s] conviction indicates a reckless disregard for the safety of those around him and calls into question his ability to exercise good judgment.  His offense raises concerns that Medicare beneficiaries may be at risk if he is allowed to remain in the Medicare program.

DAB E-File Document No. 1a at 7.  In response to Petitioner’s argument in the reconsideration request that he is an asset to the Medicare program and not a detriment, the CMS hearing officer explained that the relevant inquiry is whether Petitioner’s felony offense is detrimental to the Medicare program or its beneficiaries and not whether Petitioner is detrimental.  DAB E-File Document No. 1a at 7-8.

In briefing, Petitioner argues that a reckless driving offense is not detrimental to the best interests of the program and its beneficiaries, especially when one considers Petitioner’s post-crime efforts to better himself.  P. Br. at 8-9.  In general, Petitioner states that CMS did not consider all of the facts and circumstances as to whether Petitioner would be detrimental to the program and its beneficiaries and that CMS failed to consider the seriousness of Petitioner’s offense because it was only reckless driving in the third degree, Petitioner called 911 after the accident, and Petitioner “cooperated with the investigation.”  P. Br. at 10-11.

In support of Petitioner’s position that he is not detrimental to the Medicare program, Petitioner submitted testimony, statements, and other evidence that, after his felonious act in January 2017, he has rehabilitated himself.  The evidence includes:

• Petitioner testified to his regret that R.G.’s life has been negatively changed forever.  Because of this event, Petitioner voluntarily ceased drinking alcohol.  P. Ex. 1 at 6.  He characterized the restitution that he agreed to pay R.G. as showing that he accepted responsibility for his actions.  P. Ex. 1 at 8-9.
• Petitioner was evaluated on October 12, 2018, by psychologists.  The Brief Psychological Report indicated that Petitioner has an “adjustment disorder with mixed anxiety and depressed mood.”  P. Ex. 11 at 4.  Further, it stated that “[b]ased on available information at the time of the evaluation, [Petitioner] does not meet the diagnostic criteria for a substance use disorder.”  P. Ex. 11 at 4.

Page 14

However, the report noted that “[t]he scope of this evaluation is limited to an intake and mental status examination, the clinical presentation of the patient, and information obtained from the instruments mentioned [in the report].”  P. Ex. 11 at 4.  Although the report concluded that, “[a]t this time, no concerns appear present that would prevent [Petitioner] from resuming his graduate studies in the physician assistant program at Nova Southeastern University,” the report also stated that “[a]s this is not a forensic evaluation, no determination of fault or risk can be ascertained.  The scope of this evaluation is limited to a mental status examination and clinical presentation of [Petitioner] during a single office visit.”  P. Ex. 11 at 4.

• Petitioner attended Nova Southeastern University from May 2017 to August 2019 and graduated with a Master of Medical Science in Physician Assistant degree.  P. Ex. 1 at 3.  Despite criminal charges pending against Petitioner, the Physician Assistant Program at Nova Southeastern University allowed Petitioner to continue in the program and proceed to graduation.  P. Ex. 1 at 11.
• In a brief September 27, 2019 letter addressed to “To Whom it May Concern,” the Program Director for the Physician Assistant Program at Nova Southeastern University acknowledged that a “DUI bodily injury charge” had been made against him and that Petitioner had not engaged in questionable activity while in the program.  She further stated that Petitioner has great potential for success in the PA profession.  P. Ex. 13.
• In a brief October 4, 2019 letter addressed to “To Whom it May Concern,” the Associate Program Director for the Physician Assistant Program at Nova Southeastern University stated that Petitioner “always approached his studies with sincerity and righteousness,” and that Petitioner “never displayed a behavior unbecoming of a healthcare profession or one of immaturity.”  The letter did not acknowledge that the author knew Petitioner had been criminally charged.  P. Ex. 14.
• In a brief October 11, 2019 letter addressed to “To Whom it May Concern,” the Clinical Director for the Physician Assistant Program at Nova Southeastern University stated that Petitioner was successful during each clinical rotation in the program and that Petitioner will be an excellent PA and exceptional healthcare provider.  The letter did not acknowledge that Petitioner had been criminally charged, although it ambiguously mentioned having been made aware of Petitioner’s “background.”  P. Ex. 15.
• In a brief October 9, 2019 letter, an individual indicating he was a Coordinator of Central Transport at Mease Countryside Hospital and that Petitioner was a hard

Page 15

worker while employed there from October 2016 until May 2017.  The letter states that Petitioner made the author aware of the “accident involving alcohol that caused injury to one of his dearest friends.”  The letter was not on letterhead.  P. Ex. 26 at 14.

• R.G.’s father wrote a brief letter dated December 2, 2019, in which he stated that his family has known Petitioner since he was a teenager and recommended that Petitioner be licensed as a PA in Florida.  P. Ex. 27 at 1.  However, also, on December 2, 2019, Petitioner signed the Plea Form agreeing to pay significant restitution to R.G., including 12.5% of Petitioner’s net income.  CMS Ex. 2 at 36.  Also, on December 2, 2019, the Circuit Court ordered Petitioner to pay that restitution to R.G.  CMS Ex. 2 at 24, 30-31, 39.
• The National Commission on Certification of Physician Assistants certified Petitioner on September 3, 2019.  P. Ex. 1 at 4; P. Ex. 17.
• Despite Petitioner’s criminal record, Petitioner was unanimously approved by the Florida Board of Medicine council who interviewed him to be licensed in Florida as a PA.  P. Ex. 1 at 3-4, 14; P. Ex. 28.  On December 10, 2019, Petitioner received a Florida PA license.
• Petitioner testified that, when he applied for employment with HCA on July 17, 2019, Petitioner informed them that he was charged with a crime involving the use of alcohol.  P. Ex. 1 at 17-18; P. Ex. 30 at 9.  Petitioner testified that he was offered a position with HCA, which he still currently holds.  P. Ex. 1 at 1; P. Ex. 32.
• Anthony John Wright, M.D., testified in this proceeding that he first came to know Petitioner when Petitioner was doing a PA student rotation at an HCA physician group where Dr. Wright worked.  Dr. Wright testified that he recruited Petitioner to take a full-time PA position with that HCA physician group.  P. Ex. 3 at 4; P. Ex. 7 at 1.  Dr. Wright indicated that Petitioner had made him aware “that there was a night when he was visiting his hometown that he was out with a friend and he got in a car accident, and that his friend was injured.”  P. Ex. 3 at 5.  Dr. Wright did not consider this very important and thought it “would be a very unfortunate situation for an incident that is in the past to still haunt him today.”  P. Ex. 3 at 6.  Dr. Wright attested to Petitioner’s skill as a PA and that he did not have any concerns with Petitioner.  P. Ex. 3 at 7; P. Ex. 7 at 1-2.  He also testified that Petitioner volunteered to work shifts in the intensive care unit during the COVID crisis.  P. Ex. 3 at 8.

Page 16

• Rohan Joseph, M.D., testified in this proceeding that he first came to know Petitioner when Petitioner was doing a PA student rotation at an HCA physician group where Dr. Joseph works.  P. Ex. 4 at 4; P. Ex. 8.  Like Dr. Wright, Dr. Joseph wanted to hire Petitioner as a PA at their physician group.  P. Ex. 4 at 4.  Petitioner did not tell Dr. Joseph about his criminal record until CMS revoked his enrollment.  P. Ex. 4 at 4-5.  Dr. Joseph assessed him as “maturing appropriately for being in his second year as a PA.”  P. Ex. 4 at 6.  He considers Petitioner to be an asset to his physician practice.  P. Ex. 8.

I agree with CMS’s interpretation of the relevant statute and the regulation.  Both indicate that the proper question is whether Petitioner’s felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  42 U.S.C. § 1395u(h)(8); 42 C.F.R. § 424.535(a)(3).  There is no requirement that CMS consider the actions that Petitioner has taken following the felonious conduct to better himself.

CMS’s conclusion that Petitioner’s felonious conduct is detrimental to the best interests of the Medicare program and its beneficiaries is reasonable.  Petitioner became highly intoxicated while out with friends.  He decided to drive two friends to their homes, however, only one of his friends made it home safely.  Not only did Petitioner hit a tree and permanently injure one of his friends, Petitioner failed to immediately stop and call 911 after impacting the tree.  I agree with the CMS hearing officer that the injuries R.G. incurred and the significant restitution that Petitioner has paid and is paying is evidence of the seriousness of the Petitioner’s offense.  CMS is reasonably concerned at the poor judgment Petitioner displayed and is, therefore, authorized to revoke Petitioner’s enrollment based on his felony conviction.

4. On February 26, 2020, staff from an HCA owned company called Parallon electronically filed with CMS an application for Petitioner’s enrollment in the Medicare program as a PA.  That application included a negative response to a question that asked if a final adverse legal action had been imposed on Petitioner.  On March 5, 2020, Petitioner electronically signed a certification statement indicating that he read the contents of his enrollment application and that the contents were true, correct, and complete.  Petitioner did not otherwise disclose his criminal record on that enrollment application.

On February 26, 2020, Petitioner electronically filed an application to enroll in the Medicare program as a PA.  P. Ex. 44; P. Ex. 52.  There is no dispute that Petitioner’s enrollment application shows an answer of “No” to the following question:  “Has a final adverse legal action ever been imposed against an applicant under any current or former name or business entity?”  P. Ex. 52 at 4.  Further, the enrollment application does not otherwise indicate that Petitioner had a criminal record.  Petitioner electronically signed a certification statement on March 5, 2020, in which he certified that he “read the contents

Page 17

of this application, and the information contained herein is true, correct, and complete.”  P. Ex. 45; P. Ex. 52 at 1; P. Ex. 53 at 24.  In an April 9, 2020 initial determination, a CMS contractor approved Petitioner’s enrollment in the Medicare program as a PA effective January 13, 2020.  P. Ex. 46.

Petitioner admits that his enrollment application indicated that he was not subject to a final adverse legal action.  P. Ex. 1 at 23.  Petitioner testified that an HCA subsidiary named Parallon assisted Petitioner with his applications to enroll in the Medicare and Medicaid programs.  P. Ex. 1 at 19, 21.  Petitioner also testified that he does not know why the enrollment application provided incorrect information because he had given Parallon all of the pertinent information about his criminal matter.  P. Ex. 1 at 21, 23.  Petitioner testified that, on his March 20, 2020 Medicaid enrollment application, he disclosed his criminal record and provided a letter explaining the criminal conduct.  P. Ex. 1 at 20; P. Ex. 40 at 11-13.  Petitioner testified that he was approved for enrollment in the Florida Medicaid program.  P. Ex. 1 at 20.  Petitioner also stated that he was truly sorry for the mistake on the Medicare application but that it was an “unintentional human mistake.  There was nothing deliberate about it.”  P. Ex. 1 at 26.

Jennie High, Director of Strategic Resources at Parallon and formerly Parallon’s Director of Provider Enrollment, testified in support of Petitioner.  P. Ex. 2 at 3; P. Ex. 6 at 1.  Ms. High testified that Parallon assists new practitioners with the preparation and submission of applications to enroll in the Medicare and Medicaid programs and that Parallon assisted in completing Petitioner’s Medicare enrollment application.  P. Ex. 2 at 6-7; P. Ex. 6 at 1.  Ms. High confirmed that Petitioner had disclosed to Parallon his criminal record.  P. Ex. 2 at 8, 12; P. Ex. 6 at 2.  However, despite this, Ms. High testified that Parallon entered the negative answer to the question on the enrollment application concerning final adverse legal actions.  P. Ex. 2. at 12; P. Ex. 6 at 2.

Ms. High testified that, in January 2020, Parallon requested approval from Petitioner to electronically submit his Medicare enrollment application and, on February 26, 2020, Parallon confirmed Petitioner’s approval and submitted it.  P. Ex. 2 at 9.  Ms. High testified that Parallon conducted an internal review and was unable to determine why Parallon indicated that Petitioner had not been subject to a final adverse action.  P. Ex. 2 at 12; P. Ex. 6 at 2.

5. CMS had a legitimate basis to revoke Petitioner’s enrollment and billing privileges in the Medicare program under 42 C.F.R. § 424.535(a)(4), because Petitioner certified as true misleading or false information on an enrollment application that Petitioner filed to enroll in the Medicare program.

To enroll in the Medicare program as a supplier, an individual must complete and file an electronic or paper enrollment application.  42 C.F.R. §§ 424.500 (definition of

Page 18

Enrollment application), 424.505, 424.510.  The enrollment application requires the disclosure and submission of information and documents that CMS needs in order to determine if the application should be enrolled.  42 C.F.R. §§ 424.500 (definition of Enroll/Enrollment), 424.510.

An enrollment application must include “[c]omplete, accurate, and truthful responses to all information requested within each section as applicable to the provider or supplier type.”  42 C.F.R. § 424.510(d)(2)(i).  Each enrollment application has a certification statement that, in the case of an individual practitioner, must be signed by that practitioner.  42 C.F.R. § 424.510(d)(3), (d)(3)(i)(A).  A supplier’s signature on an enrollment application “attests that the information submitted is accurate . . . .”  42 C.F.R. § 424.510(d)(3).

The Act authorizes the Secretary to refuse to enroll a physician or other supplier into the Medicare program if the physician or supplier has been convicted under federal or state law of an offense that the Secretary determines is detrimental to the best interests of the Medicare program or program beneficiaries.  42 U.S.C. § 1395u(h)(8); see 42 C.F.R. § 424.530(a)(3).  To effectuate this statutory authority, the Medicare enrollment application asks whether the applicant has ever had a “final adverse legal action” imposed against him or her.  CMS Ex. 52 at 4; CMS Ex. 53 at 12.  A final adverse action includes “[a] conviction of a Federal or State felony offense (as defined in § 424.535(a)(3)(i)) within the last 10 years preceding enrollment, revalidation, or re-enrollment.”  42 C.F.R. § 424.500.

As discussed above, § 424.535(a)(3) states that the term “convicted” has the same meaning as that term is defined in 42 C.F.R. § 1001.2, which includes a federal, state, or local court accepting a plea of guilt or participation in a first offender, deferred adjudication or other program or arrangement where judgment of conviction has been withheld.  This is consistent with § 424.535(a)(3)(i)(A) and (B) that indicates being convicted includes “guilty pleas and adjudicated pretrial division.”

To enforce the requirements in the regulations related to enrollment applications, CMS may revoke a supplier’s Medicare enrollment and billing privileges under the following circumstance:

False or misleading information. The provider or supplier certified as “true” misleading or false information on the enrollment application to be enrolled or maintain enrollment in the Medicare program.

42 C.F.R. § 424.535(a)(4).

Page 19

In the present case, there is no dispute that Petitioner certified the truth of the statements he made on his enrollment application and that one of those statements was false.  Therefore, CMS had a legitimate basis to revoke Petitioner’s enrollment under § 424.535(a)(4).

Petitioner argues that CMS did not have a legitimate basis to revoke his enrollment because § 424.535(a)(4) only applies to deliberate conduct.  P. Br. at 13-14.  Petitioner asserts that he did not deliberately indicate on his Medicare enrollment application that he never had a final adverse legal action imposed against him and that it was a mistake by Parallon staff who completed the application for him.  P. Br. at 15.  In support of his position, Petitioner argued that he fully disclosed his criminal case to his employer when he was charged (P. Ex. 26 at 14), to his PA program (P. Ex. 1 at 9), to HCA when he applied for employment (P. Ex. 1 at 17-18; P. Ex. 2 at 4; P. Ex. 30 at 8), to the Florida Medical Board when he applied for PA licensure and appeared before a council of the Medical Board to discuss his criminal record (P. Ex. 1 at 11-14; P. Ex. 22 at 4-11; P. Ex. 27 at 2-12; see also P. Ex. 26), to the insurance company when he applied for professional liability insurance (P. Ex. 1 at 18-19; P. Ex. 39 at 1), and to the Florida Medicaid program when he applied for enrollment.  P. Ex. 1 at 20; P. Ex. 2 at 7; P. Ex. 40 at 11-13.  In addition, Petitioner asserts in briefing that the electronic version of the enrollment application provided insufficient explanation for Petitioner to understand that he needed to report his guilty plea to a felony.  P. Br. at 15-17.

As an initial matter, I note that Petitioner’s final argument summarized above, that the electronic enrollment application was confusing or provided insufficient explanation for Petitioner to understand that he needed to report his guilty plea to a felony, is not supported by Petitioner’s testimony.  P. Ex. 1 at 21-27.  Petitioner testified that the answer on his enrollment application as to whether he had any final adverse legal actions imposed against him was not correct.  P. Ex. 1 at 23.  When asked why the incorrect answer was given, he said that he did not know.  P. Ex. 1 at 23.  However, in contradiction to the argument that Petitioner somehow did not understand the question being asked of him or could not tell what was being asked of him on the electronic application, Petitioner testified that he “fully understand[s] and accept[s] that this application is my responsibility.”  P. Ex. 1 at 24; see also P. Ex. 1 at 26.  This does not mean Petitioner admitted to deliberately providing false information, just that he did not know how it happened.  Therefore, I reject Petitioner’s argument that the electronic version of the enrollment application resulted in the false information that Petitioner provided.  Anyone who had recently pleaded guilty to a felony charge, been placed on probation for five years with many strict conditions, had been advised that a violation of the probation conditions could result in being sentenced for the felony offense he had just pleaded guilty to, and was ordered to pay large amounts of restitution for years, would assuredly have thought this could potentially be considered a final adverse legal action and, at the least, would have looked into the matter before answering in the negative.

Page 20

I also reject Petitioner’s argument that CMS could only revoke his enrollment under § 424.535(a)(4) if Petitioner had deliberately certified that false information was true.  The DAB has consistently taken the view that a plain language interpretation of § 424.535(a)(4) does not require that a supplier intend to certify as true false information provided on the application.  Mark Koch, D.O., DAB No. 2610 at 4-5 (2014) (“[S]ection 424.535(a)(4) does not require proof that Petitioner subjectively intended to provide false information, only proof that he in fact provided misleading or false information that he certified as true.”).

In another case, the DAB explained in more detail that, even if a supplier had an enrollment application completed by staff and the supplier had disclosed a final adverse legal action to the staff, but the staff still failed to indicate the final adverse legal action on the enrollment application, then the supplier’s enrollment was still subject to revocation based on § 424.535(a)(4):

At the heart of Petitioner’s dispute is her position that she herself did not intentionally provide Medicare false or misleading information.  She points to her disclosure of the adverse actions to employers and billers and asserts that others’ subsequent actions or omissions resulted in the filing of [the enrollment application] forms that were not true, correct and complete.  However, as we explain below, it is ultimately immaterial whether Petitioner actually completed the [enrollment application] forms herself, or, someone else completed the forms for Petitioner and intentionally or negligently omitted information about the negative licensing history from the forms.  Nor is it relevant whether a billing person did or did not provide Petitioner an opportunity to review the forms before they were filed or inform Petitioner when or how the forms would be filed, or that none of the [other nurse anesthetists] Petitioner personally knows reportedly have been given an opportunity to check their own Medicare application packets for accuracy and completeness. The responsibility for reviewing the content of her applications before attesting to their accuracy lay entirely with Petitioner and she averred by her signature that she had performed such a review.

Sandra E. Johnson, CRNA, DAB No. at 14 (2016) (footnote and citations omitted).  This DAB decision shows that Petitioner’s defense, i.e., that he did not deliberately provide false information and that Parallon is to blame, is not availing.

Page 21

As part of his argument, Petitioner analogized other statutes, including the False Claim Act, to § 424.535(a)(4) and that, those statutes only provide liability for false statements that “have an element of scienter.”  P. Br. at 14.  However, the DAB has rejected this argument.

The use of “knowingly” in the False Claims Act does not benefit Petitioner.  To begin with, the False Claims Act contains express knowledge requirements whereas the revocation provision applied here contains none, which suggests that the omission of a scienter requirement may imply that no such showing is required to revoke for false or misleading statements in enrollment applications.  Furthermore, as CMS points out, the definitions of “knowing” and “knowingly” even in the False Claims Act context “‘require no proof of specific intent to defraud,’ and encompass situations in which the person ‘has actual knowledge of the information,’ ‘acts in deliberate ignorance of the [] falsity of the information,’ or ‘acts in reckless disregard of the truth or falsity of the information.’”  CMS Resp. at 18-19 n.8, citing 31 U.S.C. § 3729(b) (CMS’s italics).

Acute Care Homenursing Services, Inc., DAB No 2837 at 9 (2017).

In addition, the DAB has applied its interpretation of the regulation even when a supplier indirectly disclosed a final adverse legal action through documents submitted to CMS but failed to identify the final adverse legal action on the enrollment application he certified.  William Garner, M.D., DAB No. 3026 at 9-10 (2020).  In reaching the conclusion in Garner, the DAB expressly disagreed with the unpublished district court opinion in Breton L. Morgan, M.D., Inc. v. Azar, No. 3:19-0406, 2020 WL 257376 (S.D.W. Va. January 16, 2020), a case that Petitioner relies on in his brief.  Garner, DAB No. 3026 at 11-14; P. Br. at 17.  The DAB concluded as follows:

Moreover, we reject Petitioner’s characterization of the revocation as elevating form over substance because we disagree that there was “substantive compliance” with Medicare enrollment regulations.  Those regulations plainly required Petitioner to report and certify all final adverse legal actions on section three of his application.  See 42 C.F.R. § 424.510(a)(1), (d)(2)(i), (d)(3), (d)(4).  As discussed, that requirement is not a mere formality, but a critical mechanism for evaluating and verifying an applicant’s fitness to

Page 22

participate in Medicare.  Petitioner’s failure to report a final adverse legal action on his enrollment application cannot be considered “substantive compliance” with Medicare enrollment requirements.

Garner, DAB No. 3026 at 14.  Therefore, CMS does not have to show that Petitioner deliberately certified as true false information on his enrollment application, just that Petitioner did so.

Even if CMS needed to show that Petitioner acted deliberately, the record reveals that there is reason to question whether Petitioner simply committed an honest mistake.  Although Petitioner testified in these proceedings that he was driving the car when it was involved in the crash (P. Ex. 1 at 5), Petitioner originally told a law enforcement officer investigating the crash that he had not been in the car.  The officer stated as follows in his report:

I was then informed by EMS that the only other person found on scene other than the injured party was the same person who placed the 911 call.  I approached this man and I identified him as Colby Norris via his Florida drivers license[.]  I immediately noticed his red, bloodshot, glassy eyes and his lack of balance.  As he spoke to me a strong odor of Alcohol came from his breath.  Norris struggled to focus on instructions and I would have to repeat things.  I was informed by Norris that the vehicle was registered to his father but that he was the one who usually drove it.  Norris claims he was not in the vehicle at the time of the crash and received a phone call telling him his friend, the passenger, was hurt.  When asked where he was during the crash Norris was unable to give a clear answer.  At first Norris was at a friend’s house, but could not advise which friend’s house or where the house was.  Later Norris claimed he was at a nearby bar called Peggy O’s . . . security footage showed Norris was not at that bar any time that day.

* * * * *

Due to the amount of evidence shown in the phone records and toxicology report, and testimony given by [a witness], it is clear at the time of the collision Norris was in active physical control of the vehicle with a blood alcohol level above the legal limit.

Page 23

CMS Ex. 2 at 5-6 (emphasis added).  The Brief Psychological Report confirms that “[Petitioner] denied that he was driving at the time, though charges were initiated, and he reportedly continues to be involved in the legal process at the time of the evaluation.”  P. Ex. 11 at 1.  The officer’s report makes it clear that he had to go to some lengths to establish that Petitioner had been driving the car during the crash.  CMS Ex. 2 at 5-6.  Further, the police investigation revealed that Petitioner did not stop at the scene of the crash but drove and parked in the driveway of a residence away from the crash scene, and police had to find the scene of the crash.  CMS Ex. 2 at 5.  Further, an investigator noted that the driving compartment of Petitioner’s vehicle had been wiped down with cleaning wipes.  CMS Ex. 2 at 9.  Therefore, Petitioner was not forthright with investigators and acted in a manner to avoid responsibility for the crash.

Further, Petitioner’s actions related to his application for PA certification by the National Commission on the Certification of Physician Assistants (NCCPA) also calls into question his willingness to disclose his criminal conduct.  NCCPA is the only organization that administers the Physician Assistant National Certifying Exam, which Petitioner passed.  Petitioner testified that he was uncertain if he needed to disclose the criminal charges against him when he applied to take the examination and did not do so until months after he had received his certification.  P. Ex. 1 at 15; P. Ex. 16; P. Ex. 17.  While the NCCPA chose to take no disciplinary action against Petitioner, it reserved the right to revisit the question should Petitioner violate any of NCCPA’s Code of Conduct or Policies and Procedures for PA Disciplinary Matters.  P. Ex. 20.

6. I have no authority to review the length of the reenrollment bar imposed on Petitioner.

When CMS revokes the Medicare enrollment of a supplier, it must impose a reenrollment bar from one to ten years in length.  42 C.F.R. § 424.535(c)(1)(i).  In this case, CMS barred Petitioner from reenrollment until December 3, 2029.  P. Ex 5 at 3.  CMS explained its reasons for doing so in the reconsidered determination.  DAB E-File Document No. 1a at 9.  Petitioner makes a number of arguments why he thinks the length of the bar is inappropriate.  P. Br. at 17-20.

The imposition of a reenrollment bar is not subject to administrative law judge review.  Vijendra Dave, M.D., DAB No. 2672 at 9 (2016); see also 42 C.F.R. § 424.535(c)(2)(ii)(B).  Therefore, this is not an issue I can consider.

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

The regulations established a single list of individuals and entities for whom Medicare Advantage plans (i.e., Medicare Part C) cannot provide reimbursement for items and services they provide, and of prescribers for whom Medicare Part D plans cannot provide

Page 24

reimbursement for any prescriptions the individuals write.  42 C.F.R. §§ 422.222, 423.120(c)(6).

There are three separate standards under 42 C.F.R. §§ 422.2 and 423.100 that may apply to a given individual to determine if he or she is added to the preclusion list.  Relevant to this case, are two standards.  The following applies when an individual is currently revoked for a reason other than under § 424.535(a)(3):

(1) Meet all of the following requirements:  
(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in § 424.535(a)(3) of this chapter.  
(ii) The individual or entity is currently under a reenrollment bar under § 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 (1)(iii), CMS considers the following factors:  
(A) The seriousness of the conduct underlying the individual's or entity's revocation.  
(B) The degree to which the individual's or entity's conduct could affect the integrity of the Medicare program.  
(C) Any other evidence that CMS deems relevant to its determination; or

42 C.F.R. §§ 422.2, 423.100.

In this case, Petitioner was revoked, in part, for a basis other than § 424.535(a)(3), and a reenrollment bar is in effect.  Therefore, the primary issue to address here is whether the underlying conduct that led to the revocation under § 424.535(a)(4) shows that it is detrimental to the best interests of the Medicare program.  CMS stated the following in its reconsidered determination:

Regarding factor (A), CMS finds Mr. Norris’ conduct to be very serious.  The Medicare program relies on providers and suppliers to accurately self-report data on their enrollment applications.  CMS has stated:  “We must have complete and accurate data on each provider and supplier to help confirm that the provider or supplier still meets all Medicare requirements and that Medicare payments are made correctly.  Inaccurate or outdated information puts the Medicare Trust Funds at risk” (see 84 Fed. Reg. at 47,829).

Page 25

Regarding factor (B), CMS has long held that “submission of false information or the withholding of information relevant to the provider’s or supplier’s enrollment eligibility represents a significant program integrity risk” (84 Fed. Reg. at 47,826). Mr. Norris argues that he should not be added to the CMS Preclusion List because he did not intend to withhold the information about his felony conviction.  However, the integrity of the program is at risk regardless of a supplier’s intent (or lack thereof) to withhold the information.

CMS also finds relevant that Mr. Norris repeatedly attempts to minimize the gravity of the false information he provided on his enrollment application.  Mr. Norris contends that the failure to disclose his conviction was unintentional and characterizes the failure as “an innocent mistake,” “an inadvertent human error,” and “nothing more than an unfortunate oversight.”  Mr. Norris’ refusal to accept the seriousness of his error further demonstrates why CMS should protect the integrity of the program by adding him to the CMS Preclusion List.  If Mr. Norris believes that failure to report a felony that resulted in permanent, debilitating injury to another person is an innocent oversight, CMS cannot reasonably rely on Mr. Norris to fulfil his obligation to report updated information, as required under § 424.516, or any other requirement of his participation in the Medicare program as a supplier.

DAB E-File Document No. 1a at 11.

In his brief, Petitioner’s only argument against CMS’s preclusion analysis above is that § 424.535(a)(4) was not a valid basis for revocation and that the underlying conduct was not detrimental.  P. Br. at 21.  Because I have upheld Petitioner’s revocation under § 424.535(a)(4), Petitioner’s argument is no defense to preclusion.  Further, the underlying basis for the revocation is sufficient reason to place Petitioner on the preclusion list.  The Medicare program needs enrolled providers and suppliers to always file accurate information.  In the present case, Petitioner was incorrectly enrolled in the Medicare program because Petitioner falsely certified on his enrollment application that he was not subject to a final adverse legal action.

The second basis for adding Petitioner to the preclusion list has the following factors to consider:

Page 26

(3) The individual or entity, regardless of whether they are or were enrolled in Medicare, 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.  Factors that CMS considers in making such a determination under this paragraph (3) are -
(i) The severity of the offense;
(ii) When the offense occurred; and
(iii) Any other information that CMS deems relevant to its determination.

42 C.F.R. §§ 422.2, 423.100.

CMS stated the following concerning the factors it considered as to whether the Petitioner’s felony conviction was detrimental to the best interests of the Medicare program.

Regarding factor (i), Mr. Norris’ offense was very severe and resulted in serious bodily injury to R.G., a passenger in Mr. Norris vehicle.  The injuries Mr. Norris caused were so severe that he was ordered to pay $75,000 in restitution to R.G., plus 12.5% of his net income each month until August 2025 (see Exhibit 21).  In addition, the blood sample taken from Mr. Norris at the scene found that he had a blood alcohol level of .239 g/dL, nearly [three] times the legal limit in Florida.  Mr. Norris has even admitted that he “ruined his best friend’s life” (see Exhibit 14).  After considering these factors, CMS finds that Mr. Norris’ offense was very severe.

Regarding factor (ii), the accident that led to Mr. Norris’ conviction occurred on January 13, 2018, less than four years ago.3  When this is weighed against the severity of the offense, CMS finds that Mr. Norris’ offense is detrimental to the best interests of the Medicare program.

Page 27

Regarding factor (iii), CMS finds that our assessment of factors (i) and (ii) more than justify Mr. Norris’ inclusion on the Preclusion List.  Therefore, CMS upholds Mr. Norris’ placement on the Preclusion List.

DAB E-File Document No. 1a at 10.

Petitioner’s argument against CMS’s analysis is simply that Petitioner was never convicted of a felony and the reckless driving offense was not detrimental because it was the least serious felony.  P. Br. at 21.

Because I have concluded that Petitioner was convicted of a felony for purposes of Petitioner’s revocation, I have no reason to conclude that he was not convicted of a felony for purposes of the preclusion regulation.  Further, I agree with CMS that Petitioner’s felony was very severe and that the criminal offense is not so old that it precludes adding Petitioner to the preclusion list.

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 the inclusion of Petitioner’s name on the preclusion list.

1. Petitioner asserts that 42 C.F.R. § 424.535(a)(3)(i) is unconstitutionally vague (P. Br. at 8). I have no authority to consider the constitutionality of a duly promulgated regulation.
• back to note 1
2. Even if § 1001.2 had not been cross-referenced in § 424.535(a)(3)(i), § 424.535(a)(3)(ii)(A) indicates that the term “convicted” includes guilty pleas and adjudicated pretrial divisions. This interpretation of “convicted” in the revocation context occurred when the Secretary originally promulgated § 424.535(a)(3). 71 Fed. Reg. 20,754, 20,780 (Apr. 21, 2006). Therefore, the Secretary has long considered the term “convicted” in 42 U.S.C. §§ 1395u(h)(8) to include guilty pleas and diversion programs.
• back to note 2
3. The CMS hearing officer incorrectly stated that the crash occurred on January 13, 2018, when it occurred on January 13, 2017, and that it was less than four years ago when in fact the initial determination adding Petitioner to the CMS preclusion list was issued a little more than four years and three months after the crash. This time difference is not consequential and, I note, that Petitioner’s false statement on the enrollment application, i.e., Petitioner had not been subject to a final adverse legal action, delayed CMS’s consideration of Petitioner’s conviction.
• back to note 3