Paul G. Carpenter, DC, and Chiropractic Associates of Bridgeport, LLC, DAB CR6060 (2022)

DECISION

The Centers for Medicare & Medicaid Services (CMS) upheld determinations by National Government Services (NGS), a Medicare administrative contractor, revoking the Medicare enrollment and billing privileges of Petitioners, Paul G. Carpenter, DC (Dr. Carpenter), and his practice, Chiropractic Associates of Bridgeport, LLC (the practice), pursuant to 42 C.F.R. § 424.535(a)(3) because Dr. Carpenter, within the preceding 10 years, had been convicted of a felony offense that is detrimental to the best interests of the Medicare program and its beneficiaries.  CMS also upheld the revocation of the practice pursuant to 42 C.F.R. § 424.535(a)(4) based on its report of false or misleading information on an enrollment application.  Additionally, CMS upheld Petitioners' placement on its Preclusion List.  I affirm the revocation of Petitioners' Medicare enrollment and billing privileges and placement on the Preclusion List.

I.  Background and Procedural History

Petitioners are a chiropractor and his practice.  See CMS Exs. 7 at 1; 14 at 4.  On May 20, 2016, Dr. Carpenter, with the assistance of his current counsel, entered into a plea agreement with the United States in which he agreed to "plead guilty to a one-count

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information charging him with filing a false tax return, in violation of 26 U.S.C. § 7206(1)."  CMS Ex. 9; see CMS Ex. 10 at 6-7.  The plea agreement detailed the following offense conduct:

As relevant to the Information, on or about April 15, 2009, . . . [Dr. Carpenter] . . . did willfully make and subscribe a Form 1040 Personal Income Tax Return . . . and . . . materially overstated [his] business expenses by approximately $308,084 . . . and, as a result, understated [his] taxes due and owing by approximately $106,395 . . . , whereas [he] knew that the actual deductible business expenses were materially lower and the tax figures were materially greater than that which was reported on the 2008 Form 1040.

The parties acknowledge that [Dr. Carpenter] took on his return false deductions of $308,084 for the 2008 tax year and $183,283 for the 2009 tax year, respectively, resulting in criminal tax loss of $106,395 and $81,199, respectively – or a total criminal tax loss of $187,594.

CMS Ex. 9 at 9-10.  Dr. Carpenter entered his guilty plea on May 20, 2016.  CMS Ex. 10 at 2.  On September 7, 2016, the District Court imposed sentence and judgment, at which time it ordered Dr. Carpenter to serve a 60-day term of incarceration followed by a 90-day period of home detention with location monitoring.1  CMS Ex. 10 at 103-04.

On March 26, 2020, the practice submitted an application to update its Medicare enrollment record.  CMS Ex. 8.  Dr. Carpenter, as the owner of the practice, electronically signed the application on April 20, 2020.  CMS Ex. 8 at 1.  In the application, Dr. Carpenter reported a negative response to a question asking whether he had ever been the subject of a final adverse legal action.  CMS Ex. 8 at 2.

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On July 9, 2021, NGS revoked Dr. Carpenter's Medicare enrollment and billing privileges, effective May 20, 2016, pursuant to, inter alia, 42 C.F.R. § 424.535(a)(3).2   CMS Ex. 1 at 1.  NGS also informed Dr. Carpenter that he would be placed on CMS's Preclusion List.  CMS Ex. 1 at 1.  NGS imposed a re-enrollment bar until May 21, 2026.  CMS Ex. 1 at 3.

Shortly thereafter, on July 13, 2021, NGS informed the practice that it had revoked its Medicare enrollment and billing privileges based on Dr. Carpenter's felony conviction.3   CMS Ex. 2 at 1.  NGS also revoked the practice's enrollment because it provided false or misleading information on an enrollment application signed in April 2020 that failed to report Dr. Carpenter's felony conviction.  CMS Ex. 2 at 1-2.  NGS further reported that the practice would be added to the Preclusion List.  CMS Ex. 2 at 2.  NGS established a re-enrollment bar until May 21, 2026.  CMS Ex. 2 at 4.

Petitioners, through their current counsel, requested reconsideration of NGS's determinations on August 12, 2021.  CMS Exs. 3, 4.  Although Petitioners broadly disagreed with the determinations revoking their enrollment, they did not argue why revocation based on Dr. Carpenter's felony conviction was inappropriate.  CMS Ex. 3, 4.  Nor did the practice dispute the determination that it had provided false or misleading information regarding Dr. Carpenter's felony conviction when it submitted the enrollment application signed by Dr. Carpenter in April 2020.  CMS Exs. 3, 4.  Further, Petitioners did not challenge their inclusion on the Preclusion List.  CMS Exs. 3, 4.  Petitioners argued that Dr. Carpenter had submitted only de minimus claims for Medicare reimbursement since his felony conviction.  CMS Exs. 3 at 2; 4 at 2.  Petitioners also claimed that the chiropractors associated with the practice "will not share any portion of funds received from Medicare or pay any compensation or benefit of any kind to" Petitioners.  CMS Exs. 3 at 3; 4 at 3.

In separate reconsidered determinations dated October 22, 2021, CMS, through its Provider Enrollment & Oversight Group, upheld the revocation of Petitioners' Medicare enrollment and billing privileges and placement on the Preclusion List.  CMS Exs. 5, 6.  CMS determined that Dr. Carpenter's felony offense was per se detrimental to the best interests of the Medicare program and its beneficiaries, explaining:

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CMS has determined, through public notice-and-comment rulemaking, that certain types of offenses enumerated at 42 C.F.R. §§ 424.535(a)(3)(ii)(A)-(D) are per se detrimental to the best interests of the Medicare program and its beneficiaries, including "financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud, and other similar crimes" (emphasis added).  Although Dr. Carpenter argues that his felony conviction was unrelated to healthcare, CMS finds that a conviction of any felony offense that falls into the enumerated categories is intrinsically detrimental to the best interests of the Medicare program and its beneficiaries.  That is, the mere existence of a felony conviction in the last 10 years for any of the enumerated offenses in §§ 424.535(a)(3)(ii)(A)-(D) is sufficient basis to prompt a revocation of Medicare enrollment.

Here, based on the facts and circumstances stated in the Information to which Dr. Carpenter pleaded guilty, CMS determines that his felony offense was akin to income tax evasion.  The Information states that Dr. Carpenter "for the tax year 2008, intentionally and falsely mischaracterized personal expenses as deductible business expenses on his Schedule C to his chiropractic practice, including college tuition and several personal retail purchases" . . . .  The Information goes on to state that "on or about April 15, 2009, Dr. Carpenter did willfully make and subscribe a Form 1040 Personal Income Tax Return and relevant additional forms for the fiscal year ending December 31, 2008, which was verified by a written declaration that it was made under penalties of perjury and which Dr. Carpenter did not believe to be true and correct as to every material matter.  The Information states that in the 2008 Form 1040, filed with the Internal Revenue Service (IRS), materially overstated Dr. Carpenter's business expenses by an estimated $308,084, and as a result, understated Dr. Carpenter's taxes due and owing by approximately $106,395, while Dr. Carpenter knew the deductible business expense were materially lower and the tax due figures were materially greater than that which was reported on the 2008 Form 1040."  Therefore, we find Dr. Carpenter's conviction to be per se detrimental to the Medicare program and its beneficiaries as a financial crime.

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In addition, we find Dr. Carpenter's felony offense detrimental to the Medicare program and its beneficiaries based on the specific facts and circumstances underlying it as described above.  Dr. Carpenter committed income tax evasion to enrich himself at the expense of the federal government.  This type of conduct displays dishonest behavior and a lack of good judgment.  This criminal conduct reflects negatively on Dr. Carpenter's ethics and professionalism.  Although Dr. Carpenter argues that his felony conviction is unrelated to Medicare, CMS considers his actions severe and a serious threat to the Medicare Trust Funds and beneficiaries.

CMS Ex. 5 at 4 (reconsideration determination pertaining to Dr. Carpenter); see CMS Ex. 6 at 4 (reconsidered determination pertaining to the practice that contains nearly identical language).  CMS also upheld the practice's revocation pursuant to 42 C.F.R. § 424.535(a)(4) based on its report of false or misleading information in the application signed by Dr. Carpenter on April 20, 2020.  CMS Ex. 6 at 5-6.

CMS addressed Petitioners' placement on the Preclusion List.4   CMS Exs. 5 at 1; 6 at 1.  Based on its determination that Dr. Carpenter's criminal offense was detrimental to the Medicare program, CMS upheld Dr. Carpenter's placement on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 422.222.  CMS Ex. 5 at 7-9.  With respect to the practice, CMS determined that the practice's revocation based on section 424.535(a)(4) for submitting false or misleading enrollment information warranted placement on the Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 422.222.  CMS Ex. 6 at 7-9.

Petitioners filed a request for an administrative law judge (ALJ) hearing on December 19, 2021.  CMS filed a combined brief and memorandum of law in support of summary judgment (CMS Br.), along with 16 proposed exhibits (CMS Exs. 1-16).  Petitioners submitted a brief and opposition to CMS's motion for summary judgment and three proposed exhibits (P. Exs. 1‑3).  CMS filed a reply brief (CMS Reply).  In the absence of objections by Petitioners, I admit CMS Exs. 1-16 into the evidentiary record.

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CMS objects to P. Exs. 1-3 on the basis that it is new evidence submitted for the first time and is unaccompanied by a showing of good cause.  CMS Reply at 2-5; see 42 C.F.R. § 498.56(e) (requiring that an ALJ determine whether new documentary evidence is admissible); Care Pro Home Health, Inc., DAB No. 2723 at 11 (2016) ("In enrollment revocation cases, an ALJ must exclude ‘new documentary evidence' – that is, documentary evidence that a provider did not previously submit to CMS at the reconsideration stage (or earlier) – unless the ALJ determines that ‘the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.'  42 C.F.R. § 498.56(e)(1).").

P. Ex. 1 is not new documentary evidence.  Rather, it is written testimony that was submitted in lieu of in-person testimony, which is specifically allowed by Section 12 of my standing pre-hearing order.  CMS's objection lacks any explanation of how such witness testimony could have been submitted at the reconsideration level.  Further, while the relevance of P. Exs. 2 and 3 is marginal, at best, the witness relied on these documents to support claims made in her testimony.  I overrule CMS's objections and admit P. Exs. 1-3.5

Because CMS has not requested an opportunity to cross-examine Petitioners' witness, a hearing is unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order §§ 12-14.  The record is closed, and I issue this decision on the merits.6

II.  Issues

1. Whether CMS had a legitimate basis to uphold the revocation of Petitioners' Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) based on Dr. Carpenter's felony conviction;
2. Whether CMS had a legitimate basis to uphold the revocation of the practice's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) based on the practice's report of false or misleading information in an enrollment application signed by Dr. Carpenter in April 2020;

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3. Whether CMS had a legitimate basis to uphold Dr. Carpenter's placement on its Preclusion List pursuant to 42 C.F.R. §§ 422.2, 422.222.
4. Whether CMS had a legitimate basis to uphold the practice's placement on its Preclusion List pursuant to 42 C.F.R. §§ 422.2, 422.222.
5. Whether the length of a re-enrollment bar is reviewable.
6. Whether the length of the period of inclusion on the Preclusion List is reviewable.

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and Analysis7

As a chiropractor and a practice, Dr. Carpenter and the practice are suppliers of health care services for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.21.  In order to participate in the Medicare program, a supplier must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may revoke a supplier's enrollment and billing privileges for any reason stated in 42 C.F.R. § 424.535(a).

CMS may revoke a supplier's enrollment based on the existence of a felony conviction, as set forth in 42 C.F.R. § 424.535(a)(3), which currently provides:

(3) Felonies.  (i) The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 [C.F.R. §] 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.

42 C.F.R. § 424.535(a)(3)(i); see 42 U.S.C. § 1395u(h)(8) (authorizing the Secretary to deny enrollment when a prospective supplier has been convicted of a felony offense that

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the Secretary has determined is detrimental to the best interests of the Medicare program or its beneficiaries).  CMS may also revoke a supplier's Medicare enrollment when the supplier "certifie[s] 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).  CMS is authorized to impose a bar to re‑enrollment for a minimum of one year, but no more than ten years.  42 C.F.R. § 424.535(c)(1)(i).

Additionally, CMS has established a single list of providers and prescribers who are precluded from being reimbursed for Medicare Advantage items or services or Part D drugs they furnish or prescribe to Medicare beneficiaries.8   42 C.F.R. §§ 422.222, 423.120(c)(6).  As relevant here, CMS may place an individual or entity on its Preclusion List under the following circumstances:

(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 . . . 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.  CMS may also place an individual or entity on its Preclusion List when the following requirements are met:

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in [42 C.F.R.] § 424.535(a)(3).
(ii) The individual or entity 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:

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

42 C.F.R. § 422.2(1).  The length of an individual or entity's inclusion on the Preclusion List is addressed at 42 C.F.R. § 422.222(a)(5).

1. Dr. Carpenter, a chiropractor, is the owner of the practice.
2. On May 20, 2016, Dr. Carpenter pleaded guilty to filing a false tax return in violation of 26 U.S.C. § 7206(1), and on September 7, 2016, he was sentenced to a term of imprisonment.
3. Pursuant to 26 U.S.C. § 7206, the filing of a false tax return is a felony offense.
4. Dr. Carpenter has been convicted of a felony offense as contemplated by 42 C.F.R. § 1001.2.
5. On March 26, 2020, the practice submitted a Medicare enrollment application that Dr. Carpenter electronically signed on April 20, 2020, in which it reported that Dr. Carpenter had not been the subject of a final adverse legal action within the preceding 10 years.
6. On July 9, 2021, NGS revoked Dr. Carpenter's Medicare enrollment and billing privileges pursuant to, inter alia, 42 C.F.R. § 424.535(a)(3), and placed him on CMS's Preclusion List.
7. On July 13, 2021, NGS revoked the practice's Medicare enrollment and billing privileges pursuant to, inter alia, 42 C.F.R. § 424.535(a)(3) and (4), and placed it on CMS's Preclusion List.
8. CMS properly upheld the revocation of Petitioners' Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) because Dr. Carpenter, within the preceding 10 years, had been convicted of a felony offense that is detrimental to the best interests of the Medicare program and its beneficiaries.

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9. CMS properly upheld the revocation of the practice's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(4) because Dr. Carpenter signed an enrollment application on behalf of the practice in April 2020 in which he falsely reported that he had not been the subject of a final adverse legal action within the preceding 10 years.
10. Because Dr. Carpenter's enrollment had been revoked based on his felony offense that is detrimental to the best interests of the Medicare program and its beneficiaries, CMS had a legitimate basis, after considering the factors at 42 C.F.R. § 422.2, to uphold his placement on its Preclusion List.
11. Because the practice's enrollment had been revoked pursuant to 42 C.F.R. § 424.535(a)(4) and the factors enumerated at 42 C.F.R. § 422.2 were met, CMS had a legitimate basis to uphold the practice's placement on the Preclusion List.
12. On July 9, 2021, NGS imposed a bar to re-enrollment until May 21, 2026.
13. A 10-year re-enrollment bar is authorized pursuant to 42 C.F.R. § 424.535(c).
14. Petitioners cannot challenge the length of a re-enrollment bar because it is not a reviewable initial determination.
15. Pursuant to 42 C.F.R. § 422.222(a)(5)(i), the period of inclusion on the Preclusion List is the same length of time as the re-enrollment bar.  Therefore, I lack the authority to review the duration of the practice's inclusion on the Preclusion List.
16. Pursuant to 42 C.F.R. § 422.222(a)(5)(iii), an individual remains on the Preclusion List for a 10-year period beginning on the date of the felony conviction, unless CMS determines that a shorter length of time is warranted.  Therefore, I lack authority to review the duration of Dr. Carpenter's inclusion on the Preclusion List.

Dr. Carpenter, as a chiropractor, is the owner of the practice.  CMS Ex. 8 at 3.  On May 20, 2016, Dr. Carpenter pleaded guilty to the felony offense of providing false information on a tax return.  CMS Ex. 9.  Petitioner does not dispute CMS's determination that Dr. Carpenter's felony offense is akin to tax evasion.  The Departmental Appeals Board (DAB) has determined that a crime involving the filing of a false tax return is a financial crime that is per se detrimental to the best interests of the Medicare program.  Francis J. Cinnelli, Sr., D.O., DAB No. 2834 at 8-9 (2017) (discussing that the DAB has "held that CMS may revoke Medicare billing privileges

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under the authority of section 424.535(a)(3) based on any financial crime," and "it is reasonable to conclude that aiding and abetting the filing of a false tax return . . . is sufficiently financial in character for CMS to find that it was a financial crime.").  CMS was therefore authorized, pursuant to 42 C.F.R. § 424.535(a)(3), to revoke Dr. Carpenter's and the practice's enrollment because Dr. Carpenter, within the preceding 10 years, had been convicted of a felony offense that is detrimental to the best interests of the Medicare program and its beneficiaries.

The practice also does not dispute it provided false information when it submitted a March 2020 enrollment application that Dr. Carpenter electronically signed in April 2020.  In fact, the practice submitted testimony conceding that "the conviction was not mentioned in the application."  P. Ex. 1 at 2; see CMS Exs. 8 at 3; 16 at 12 (Form CMS-855I enrollment application requiring applicant to disclose whether an owner has "ever had a final adverse legal action listed above imposed against you[,]" with the listed actions including a federal or state felony conviction).  The practice argues that its failure to report the felony conviction was "inadvertent"9 (P. Br. at 3), but such an "inadvertent" error is belied by the fact that the practice had never reported the felony conviction to the Medicare program.  CMS had a legitimate basis to uphold NGS's revocation of the practice's enrollment pursuant to 42 C.F.R. § 424.535(a)(4) because it provided false or misleading enrollment information.

With respect to his placement on the Preclusion List, Dr. Carpenter has not claimed that either NGS or CMS erred in their determinations.  Dr. Carpenter has not offered any evidence, much less argument, to rebut CMS's determination that the criteria set forth in 42 C.F.R. § 422.2 are satisfied.  Dr. Carpenter does not dispute CMS's determinations that he had been convicted, within the preceding 10 years, of a felony offense that is detrimental to the Medicare program, the offense was severe, the timeline of the offense justifies inclusion on the Preclusion List, and he had a history of repeated noncompliance with reporting requirements to federal agencies.  CMS Ex. 5 at 7-8; see 42 C.F.R. § 422.2.  Dr. Carpenter has not identified any legal error in CMS's determination upholding his placement on the Preclusion List.

Likewise, the practice does not claim that CMS erred in its consideration of any of the factors at 42 C.F.R. § 422.2 in upholding its placement on the Preclusion List.  The practice does not dispute that it failed to report Dr. Carpenter's felony conviction on the March 2020 enrollment application that Dr. Carpenter signed in April 2020, which was the basis for its enrollment revocation pursuant to 42 C.F.R. § 424.535(a)(4).  The practice also does not dispute CMS's determinations, consistent with 42 C.F.R. § 422.2,

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that its failure to self-report the conviction was "very serious," that its submission of false information posed a "significant program integrity risk," and that it had a "history of failing to disclose and report information."  CMS Ex. 5 at 8 ("Dr. Carpenter not only failed to disclose his felony conviction on his 2020 Medicare . . . application, [but] he failed to timely report this felony conviction to CMS or NGS.").  CMS had a legitimate basis to uphold the practice's placement on the Preclusion List.

In summary, Petitioners have not identified any error in the determinations revoking their enrollment or including them on the Preclusion List.  Rather, Petitioners focus on issues that are outside of my authority to review, namely that the duration of their revocation and placement on the Preclusion List should be reduced "to 6 years retroactive to May 20, 2016, the date of Petitioner Carpenter's guilty plea."  P. Br. at 2.  Petitioners offers no persuasive authority in support of this argument, and I cannot grant the relief they seek because it is outside the scope of my review.

The DAB has unambiguously explained that the length of a re-enrollment bar is a matter outsider the scope of an ALJ's review, stating:

A decision by CMS or its contractor about how long to bar a revoked supplier from re-enrolling in Medicare, unlike the determination to revoke the supplier's billing privileges, is not an appealable "initial determination" under 42 C.F.R. Part 498.  Blossomwood Medical, P.C., et al., DAB No. 2914, at 11 (2018); Vijendra Dave, M.D. [DAB No. 2672] at 8-11 (stating that the authority of an ALJ or the Board in a revocation appeal "does not extend to reviewing the length of the reenrollment bar imposed by CMS").  We therefore cannot consider or act upon Petitioner's contention that the three-year re-enrollment bar was excessive in her circumstances.

Linda Silva, P.A., DAB No. 2966 at 11 (2019).  Pursuant to 42 C.F.R. § 424.535(c)(1)(i), CMS may impose a re-enrollment bar for a minimum of one year and a maximum of ten tears.  Petitioner has not identified any legal error in CMS's imposition of the re-enrollment bar, and "CMS's determination regarding the duration of the re‑enrollment bar is not reviewable."  Vijendra Dave, M.D., DAB No. 2672 at 11 (2016).  The DAB explained that "the only CMS actions subject to appeal under Part 498 are the types of initial determinations specified in section 498.3(b)."  Id.  Additionally, the DAB stated that "[t]he determinations specified in section 498.3(b) do not, under any reasonable interpretation of that regulation's text, include CMS decisions regarding the severity of the basis for revocation or the duration of a revoked supplier's re-enrollment bar."  Id.  Based on the DAB's review of the rulemaking history, it determined that CMS did not intend to "permit administrative appeals of the length of a re-enrollment bar."  Id.  I have

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no authority to review this issue, and I do not disturb the re-enrollment bar through May 21, 2026.

I also lack authority to review the length of Petitioners' inclusion on the Preclusion List.  To the extent CMS determined that the practice would remain on the Preclusion List until May 21, 2026, based on its re-enrollment bar, I cannot disturb that determination because I cannot review the length of the re-enrollment bar.  CMS Ex. 6 at 9; see 42 C.F.R. § 422.222(a)(5)(i) (addressing that an entity remains on the Preclusion List while under a re-enrollment bar).  Likewise, I lack authority to review the length of Dr. Carpenter's inclusion on the Preclusion List through May 21, 2026, because that determination is set by regulation.  See CMS Ex. 5 at 7-8.  Pursuant to 42 C.F.R. § 422.222(a)(5)(iii), an individual remains on the Preclusion List for 10 years following the date of a felony conviction, unless CMS determines that a shorter length of time is warranted.

To the extent that Petitioners' request for a reduction in the length of the re-enrollment bar and period of inclusion on the Preclusion List is based on principles of equitable relief, I cannot grant relief in equity.  US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements."); see P. Br. at 3 (identifying several "issues of material fact" that include its "repayment of more than $71,000.00 billed by Medicare in December 2021" and "the destruction of Petitioners' business").  Petitioners point to no authority by which I may grant relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) ("An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .").

V.  Conclusion

I affirm the revocation of Petitioners' Medicare enrollment and billing privileges and placement on CMS's Preclusion List.

1. Dr. Carpenter was convicted of a felony offense.  See 42 U.S.C. § 7206(1) (stating that any person who violates section 7206 "shall be guilty of a felony, and upon conviction thereof, shall be . . . imprisoned not more than 3 years . . . ."); see also 18 U.S.C. § 3559 (classifying offenses punishable by more than one year of incarceration as felony offenses).
• back to note 1
2. NGS cited three regulatory bases for revoking Dr. Carpenter's Medicare enrollment.  CMS Ex. 1.  For purposes of administrative efficiency, I have limited discussion herein to revocation pursuant to 42 C.F.R. § 424.535(a)(3).
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3. NGS cited three regulatory bases for revoking the practice's enrollment.  CMS Ex. 2.  For purposes of administrative efficiency, I limit discussion herein to the revocation bases cited under 42 C.F.R. §§ 424.535(a)(3), (4).
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4. Although CMS states that "Petitioners did not seek reconsideration of their placement on the Preclusion List," it does not argue that Petitioners lack a right to a hearing to dispute the reconsidered determinations.  See CMS Br. at 30.  By challenging the revocation of their enrollment, Petitioners challenged the bases underlying their placement on the Preclusion List.
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5. CMS is not prejudiced by the admission of this testimony.  In fact, this testimony bolsters the evidence of noncompliance with 42 C.F.R. § 424.535(a)(4).  P. Ex. 1 at 2 ("I did not realize that the last application was completed prior to [Dr. Carpenter's] conviction and therefore the conviction was not mentioned in the application.  Unfortunately, Dr. Carpenter signed the application without reviewing it completely.").
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6. As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS's motion for summary judgment.
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7. My findings of fact and conclusions of law are in bold and italics.
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8. In its reconsidered determinations, CMS clarified that 42 C.F.R. §§ 423.100 and 423.120(c)(6), which had been cited by NGS, are inapplicable because neither Dr. Carpenter nor the practice is a prescriber.  CMS Exs. 5 at 1 fn.1; 6 at 1 at fn.1; see CMS Exs. 1 at 1; 2 at 2.
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9. Petitioners claim they repeatedly reported the conviction to "CAQH," but they have not explained how a report to CAQH would have put either CMS or its contractor on notice of Dr. Carpenter's felony conviction.  P. Br. at 5.
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